8–25–05 Thursday Vol. 70 No. 164 Aug. 25, 2005
Pages 49845–50148
VerDate jul 14 2003 19:42 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4710 Sfmt 4710 E:\FR\FM\25AUWS.LOC 25AUWS
i II Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005
The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office PUBLIC of the Federal Register, National Archives and Records Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see www.archives.gov. FEDERAL REGISTER WORKSHOP The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication THE FEDERAL REGISTER: WHAT IT IS AND HOW TO USE IT established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. FOR: Any person who uses the Federal Register and Code of Federal Regulations. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases WHO: Sponsored by the Office of the Federal Register. on GPO Access, a service of the U.S. Government Printing Office. WHAT: Free public briefings (approximately 3 hours) to present: The online edition of the Federal Register www.gpoaccess.gov/ nara, available through GPO Access, is issued under the authority 1. The regulatory process, with a focus on the Federal of the Administrative Committee of the Federal Register as the Register system and the public’s role in the development official legal equivalent of the paper and microfiche editions (44 of regulations. U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day the Federal Register is published and includes both text and 2. The relationship between the Federal Register and graphics from Volume 59, Number 1 (January 2, 1994) forward. Code of Federal Regulations. For more information about GPO Access, contact the GPO Access 3. The important elements of typical Federal Register doc- User Support Team, call toll free 1-888-293-6498; DC area 202- uments. 512-1530; fax at 202-512-1262; or via e-mail at [email protected]. 4. An introduction to the finding aids of the FR/CFR sys- The Support Team is available between 7:00 a.m. and 9:00 p.m. tem. Eastern Time, Monday–Friday, except official holidays. The annual subscription price for the Federal Register paper WHY: To provide the public with access to information nec- edition is $749 plus postage, or $808, plus postage, for a combined essary to research Federal agency regulations which di- Federal Register, Federal Register Index and List of CFR Sections rectly affect them. There will be no discussion of specific Affected (LSA) subscription; the microfiche edition of the Federal agency regulations. Register including the Federal Register Index and LSA is $165, llllllllllllllllll plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to WHEN: Thursday, September 22, 2005 orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, 9:00 a.m.–Noon is based on the number of pages: $11 for an issue containing WHERE: Office of the Federal Register less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues Conference Room, Suite 700 of the microfiche edition may be purchased for $3 per copy, 800 North Capitol Street, NW. including postage. Remit check or money order, made payable Washington, DC 20002 to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or RESERVATIONS: (202) 741–6008 Discover. Mail to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954; or call toll free 1-866- 512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 70 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington DC 20402, along with the entire mailing label from the last issue received.
.
VerDate jul 14 2003 19:42 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4710 Sfmt 4710 E:\FR\FM\25AUWS.LOC 25AUWS III
Contents Federal Register Vol. 70, No. 164
Thursday, August 25, 2005
Agricultural Marketing Service NOTICES PROPOSED RULES Agency information collection activities; proposals, Fresh fruit and vegetable terminal market inspection submissions, and approvals, 49920–49921 services; fees increase, 49882–49885 Meetings: Pistachios grown in Water quality standards; designated uses and use California, 49885–49891 attainability analyses; public meeting, 49921
Agriculture Department Federal Aviation Administration See Agricultural Marketing Service RULES See Forest Service Class E airspace, 49845–49847 NOTICES NOTICES Agency information collection activities; proposals, Exemption petitions; summary and disposition, 49969– submissions, and approvals, 49903 49971
Centers for Disease Control and Prevention Federal Energy Regulatory Commission NOTICES NOTICES Agency information collection activities; proposals, Complaints filed: submissions, and approvals, 49926–49928 Ocean Peaking Power, L.L.C., et al., 49917–49918 Hydroelectric applications, 49918–49920 Coast Guard Applications, hearings, determinations, etc.: RULES GridSouth Transco, L.L.C., et al., 49916 Drawbridge operations: Natural Gas Pipeline Co. of America, 49916–49917 Illinois, 49877–49878 Southwest Power Pool, Inc., 49917 PROPOSED RULES Vesta Trading LP et al., 49917 Drawbridge operations: Tennessee, 49900–49901 Federal Maritime Commission NOTICES Commerce Department Agreements filed, etc., 49921–49922 See Economic Development Administration Ocean transportation intermediary licenses: See Industry and Security Bureau All American Cargo-Servicios Nicaraguenses, Corp., et al., See National Oceanic and Atmospheric Administration 49922–49923 Caribbean American Freight, Inc., et al., 49923 Defense Department M & M Cargo Express, Corp., et al., 49923 NOTICES Meetings: Federal Motor Carrier Safety Administration Science Board task forces, 49915–49916 RULES Motor carrier safety standards: Economic Development Administration Driver’s hours of service— NOTICES Fatigue prevention; driver rest and sleep for safe Adjustment assistance; applications, determinations, etc.: operations, 49978–50073 Source Code Corp., et al., 49909–49910
Election Assistance Commission Federal Reserve System PROPOSED RULES NOTICES Help America Vote Act: Electronic fund transfers (Regulation E): State election plans— Automated teller machine operators disclosure Various States, 50076–50112 obligations; official staff interpretation, 49891–49894 NOTICES Banks and bank holding companies: Energy Department Formations, acquisitions, and mergers, 49923–49924 See Federal Energy Regulatory Commission Permissible nonbanking activities, 49924 Environmental Protection Agency RULES Federal Trade Commission Air pollutants, hazardous; national emission standards: NOTICES Reinforced plastic composites production, 50118–50136 Agency information collection activities; proposals, Air quality implementation plans; approval and submissions, and approvals, 49924–49926 promulgation; various States: Tennessee, 49878–49881 Fish and Wildlife Service PROPOSED RULES NOTICES Air pollutants, hazardous; national emission standards: Agency information collection activities; proposals, Reinforced plastic composites production, 50114–50115 submissions, and approvals, 49941–49942
VerDate jul<14>2003 19:47 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4748 Sfmt 4748 E:\FR\FM\25AUCN.SGM 25AUCN IV Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Contents
Food and Drug Administration Internal Revenue Service RULES RULES Medical devices: Excise taxes: Immunology and microbiology devices— Duties of collector, 49869–49870 Ribonucleic acid preanalytical systems; Class II Income taxes: classification, 49862–49864 Guidance under section 951 for determining pro rata Product jurisdiction: share, 49864–49869 Combination product; definition of mode of action; PROPOSED RULES amendment, 49848–49862 Income taxes: NOTICES Dividends paid deduction for stock held in employee Agency information collection activities; proposals, stock ownership plan, 49897–49900 submissions, and approvals, 49928–49929 Special rule regarding certain section 951 pro rata share Reports and guidance documents; availability, etc.: allocations, 49894–49897 Ribonucleic acid preanalytical systems; Class II special NOTICES controls; industry guidance, 49929–49930 Agency information collection activities; proposals, submissions, and approvals, 49974–49975 Forest Service NOTICES Justice Department Environmental statements; notice of intent: RULES Olympic, Gifford Pinchot, and Mt. Hood National Forests, Privacy Act; implementation, 49870–49871 and Columbia River Gorge National Scenic Area, OR NOTICES and WA, 49905–49907 Pollution control; consent judgments: Olympic National Forest, WA, 49903–49905 Cosmed Group, Inc., 49950–49951 Plumas National Forest, CA, 49907–49909 Standard Detroit Paint Co., et al., 49951 Union Pacific Railroad Co., 49951–49952 Washington Gas Light Co., 49952 Health and Human Services Department See Centers for Disease Control and Prevention Land Management Bureau See Food and Drug Administration NOTICES See Indian Health Service Alaska Native claims selection: Mary’s Igloo Native Corp., 49943 Homeland Security Department Coal leases, exploration licenses, etc.: See Coast Guard Montana, 49943 Public land orders: Housing and Urban Development Department Idaho, 49943–49944 NOTICES Montana, 49944 Agency information collection activities; proposals, Realty actions; sales, leases, etc.: submissions, and approvals, 49940–49941 Alaska, 49944 Public and Indian housing: Housing assistance payments (Section 8)— Minerals Management Service Housing Choice Voucher Program and Moderate RULES Rehabilitation Single Room Occupancy Program Outer Continental Shelf; oil, gas, and sulphur operations: (2006 FY); fair market rents, 50138–50148 Cost recovery, 49871–49877
Indian Affairs Bureau National Highway Traffic Safety Administration NOTICES NOTICES Tribal-State Compacts approval; Class III (casino) gambling: Motor vehicle safety standards: Pueblo of Pojoaque, NM, 49942–49943 Exemption petitions, etc—- General Motors Corp., 49973–49974 Exemption petitions, etc.— Indian Health Service Eaton Aeroquip, Inc., 49972 NOTICES Nissan Motor Co., 49972–49973 Grant and cooperative agreement awards: National Council of Urban Indian Health, 49930–49931 National Oceanic and Atmospheric Administration Privacy Act: PROPOSED RULES Systems of records, 49931–49940 Marine mammals: Commercial fishing operations; incidental taking— Industry and Security Bureau Fisheries categorized according to frequency of NOTICES incidental takes; 2005 list, 49902 Export privileges, actions affecting: NOTICES Sunford Trading, Ltd., 49910–49911 Environmental statements; notice of intent: Makah Tribe; Gray whales treaty right hunting Interior Department continuation; meetings, 49911–49914 See Fish and Wildlife Service Marine mammals: See Indian Affairs Bureau Incidental taking; authorization letters, etc.— See Land Management Bureau Navy Department; Surveillance Towed Array Sensor See Minerals Management Service System Low Frequency Active Sonar Operations; See National Park Service whales, 49914–49915
VerDate jul<14>2003 19:47 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4748 Sfmt 4748 E:\FR\FM\25AUCN.SGM 25AUCN Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Contents V
National Park Service State Department NOTICES NOTICES Environmental statements; availability, etc.: Culturally significant objects imported for exhibition: Grand Teton National Park, WY, 49944–49945 Assorted Egyptian treasures, 49968 Meetings: Boston Harbor Islands Advisory Council, 49945 Surface Transportation Board Cape Cod National Seashore Advisory Commission, NOTICES 49945–49946 Railroad services abandonment: Chesapeake and Ohio Canal National Historical Park CSX Transportation, Inc., 49974 Advisory Commission, 49946 Flight 93 National Memorial Advisory Commission, Trade and Development Agency 49946 NOTICES Native American human remains, funerary objects; Agency information collection activities; proposals, inventory, repatriation, etc.: submissions, and approvals, 49968–49969 Kitsap County Coroner’s Office, Port Orchard, WA, 49946–49947 Transportation Department Louisiana State University Museum of Natural Science, See Federal Aviation Administration Baton Rouge, LA; correction, 49947 See Federal Motor Carrier Safety Administration Mississippi Archives and History Department, Historic See National Highway Traffic Safety Administration Preservation Division, Jackson, MS, 49947–49948 See Surface Transportation Board Neville Public Museum of Brown County, Green Bay, WI, NOTICES 49948–49949 Aviation proceedings: Peabody Museum of Archaeology and Ethnology, Harvard Agreements filed; weekly receipts, 49969 University, Cambridge, MA, 49949 Certificates of public convenience and necessity and University of Oregon Museum of Natural History, Eugene, foreign air carrier permits; weekly applications, OR, et al.; correction, 49950 49969 Treasury Department Nuclear Regulatory Commission See Internal Revenue Service NOTICES Agency information collection activities; proposals, Veterans Affairs Department submissions, and approvals, 49952 NOTICES Regulatory guides; issuance, availability, and withdrawal, Agency information collection activities; proposals, 49953–49954 submissions, and approvals, 49975 Applications, hearings, determinations, etc.: Meetings: FirstEnergy Nuclear Operating Co., 49952–49953 CARES Business Plan Studies Advisory Committee, 49975–49976 Securities and Exchange Commission NOTICES Separate Parts In This Issue Public Utility Holding Company Act of 1935 filings, 49955– 49956 Part II Securities: Transportation Department, Federal Motor Carrier Safety Suspension of trading— Administration, 49978–50073 Global Development and Environmental Resources, Inc., 49956 Part III Self-regulatory organizations; proposed rule changes: Election Assistance Commission, 50076–50112 American Stock Exchange LLC, 49956–49957 National Association of Securities Dealers, Inc., 49957– Part IV 49960 Environmental Protection Agency, 50114–50115 New York Stock Exchange, Inc., 49961–49965 Applications, hearings, determinations, etc.: Part V GuruNet Corp., 49954 Environmental Protection Agency, 50118–50136 Hilton Hotels Corp., 49954–49955 Part VI Small Business Administration Housing and Urban Development Department, 50138–50148 NOTICES Meetings: Audit and Financial Management Advisory Committee, Reader Aids 49965–49966 Consult the Reader Aids section at the end of this issue for Small business size standards: phone numbers, online resources, finding aids, reminders, Nonmanufacturer rule; waivers— and notice of recently enacted public laws. Commercial cooking equipment, 49968 To subscribe to the Federal Register Table of Contents Commercial laundry equipment, 49966 LISTSERV electronic mailing list, go to http:// Household cooking equipment, 49967 listserv.access.gpo.gov and select Online mailing list Household laundry equipment, 49966–49967 archives, FEDREGTOC-L, Join or leave the list (or change Household refrigerator equipment, 49967 settings); then follow the instructions.
VerDate jul<14>2003 19:47 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4748 Sfmt 4748 E:\FR\FM\25AUCN.SGM 25AUCN VI Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Contents
CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
7 CFR Proposed Rules: 51...... 49882 983...... 49885 12 CFR Proposed Rules: 205...... 49891 14 CFR 71 (3 documents) ...... 49845, 49846, 49847 21 CFR 3...... 49848 866...... 49862 26 CFR 1...... 49864 40...... 49869 49...... 49869 Proposed Rules: 1 (2 documents) ...... 49894, 49897 28 CFR 16...... 49870 30 CFR 250...... 49871 256...... 49871 33 CFR 117...... 49877 Proposed Rules: 117...... 49900 40 CFR 52...... 49878 63...... 50118 Proposed Rules: 63...... 50114 49 CFR 385...... 49978 390...... 49978 395...... 49978 50 CFR Proposed Rules: 229...... 49902
VerDate jul 14 2003 19:43 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4711 Sfmt 4711 E:\FR\FM\25AULS.LOC 25AULS 49845
Rules and Regulations Federal Register Vol. 70, No. 164
Thursday, August 25, 2005
This section of the FEDERAL REGISTER Building at the street address stated rulemaking may be published with a contains regulatory documents having general previously. new comment period. applicability and legal effect, most of which An informal docket may also be Comments Invited are keyed to and codified in the Code of examined during normal business hours Federal Regulations, which is published under at the office of the Air Traffic Division, Although this action is in the form of 50 titles pursuant to 44 U.S.C. 1510. Airspace Branch, Federal Aviation a direct final rule, and was not preceded The Code of Federal Regulations is sold by Administration, Southwest Region, 2601 by a notice of proposed rulemaking, the Superintendent of Documents. Prices of Meacham Boulevard, Fort Worth, TX. interested persons are invited to new books are listed in the first FEDERAL Call the manager, Airspace Branch, comment on this rule by submitting REGISTER issue of each week. ASW–520, telephone (817) 222–5520; such written data, views, or arguments fax (817) 222–5981, to make as they may desire. Communications arrangements for your visit. must identify both docket numbers. All DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: communications received on or before Joseph R. Yadouga, Air Traffic Division, the closing date for comments will be Federal Aviation Administration Airspace Branch, Federal Aviation considered, and this rule may be Administration, Southwest Region, Fort amended or withdrawn in light of the 14 CFR Part 71 Worth, TX 76193–0520; telephone: (817) comments received. Factual information [Docket No. FAA–2005–22159; Airspace 222–5597. that supports the commenter’s ideas and suggestions is extremely helpful in Docket No. 2005–ASW–11] SUPPLEMENTARY INFORMATION: This evaluating the effectiveness of this amendment to 14 CFR part 71 Establishment to Class E Airspace; action and determining whether Santa Teresa, NM establishes a Class E airspace area additional rulemaking action would be extending upward from 700 feet above needed. AGENCY: Federal Aviation the surface of Santa Teresa, NM in Comments are specifically invited on Administration (FAA), DOT. conjunction with the Dona Ana County the overall regulatory, economic, ACTION: Direct final rule; request for Airport for which a new standard environmental, and energy aspects of comments. instrument approach has been the rule that might suggest a need to prescribed and will be published in modify the rule. All comments SUMMARY: This action establishes the paragraph 6005 of FAA Order 7400.9M, Class E airspace area at Dona Ana submitted will be available, both before dated August 30, 2004, and effective and after the closing date for comments, County, Santa Teresa, NM (K5T6) to September 16, 2004, which is provide adequate controlled airspace for in the Rules Docket for examination by incorporated by reference in 14 CFR interested persons. A report that the area navigation (RNAV) global 71.1. positioning system (GPS) standard summarizes each FAA-public contact instrument approach procedure (SIAP). The Direct Final Rule Procedure concerned with the substance of this action will be filed in the Rules Docket. DATES: Effective 0901 UTC, October 27, The FAA anticipates that this 2005. regulation will not result in an adverse Agency Findings Comments for inclusion in the Rules or negative comment, and, therefore, This rule does not have federalism Docket must be received on or before issues it as a direct final rule. The FAA implications, as defined in Executive September 27, 2005. has determined that this regulation only Order No. 13132, because it does not ADDRESSES: Send comments on the rule involves an established body of have a substantial direct effect on the to the Docket Management System, U.S. technical regulations for which frequent States, on the relationship between the Department of Transportation, Room and routine amendments are necessary national government and the States, or Plaza 401, 400 Seventh Street, SW., to keep them operationally current. on the distribution of power and Washington, DC 20590–0001. You must Unless a written adverse or negative responsibilities among the various identify the docket number, FAA–2005– comment, or a written notice of intent levels of government. Accordingly, the 22159/Airspace Docket No. 2005–ASW– to submit an adverse or negative FAA has not consulted with state 11, at the beginning of your comments. comment is received within the authorities prior to publication of this You may also submit comments on the comment period, the regulation will rule. Internet at http://dms.dot.gov. Anyone become effective on the date specified. The FAA has determined that this can find and read the comments After the close of the comment period, regulation is noncontroversial and received in this docket, including the the FAA will publish a document in the unlikely to result in adverse or negative name, address and any other personal Federal Register indicating that no comments. For the reasons discussed, I information placed in the docket by a adverse or negative comments were certify that this regulation (1) is not a commenter. You may review the public received and confirming the date on ‘‘significant regulatory action’’ under docket containing any comments which the final rule will become Executive Order 12866; (2) is not a received and this direct final rule in effective. If the FAA does receive, ‘‘significant rule’’ under Department of person at the Dockets Office between 9 within the comment period, an adverse Transportation (DOT) Regulatory a.m. and 5 p.m. Monday through Friday, or negative comment, or written notice Policies and Procedures (44 FR 11034, except Federal holidays. The Docket of an intent to submit such a comment, February 26, 1979); and (3) does not Office (telephone 1–800–647–5527) is a document withdrawing the direct final warrant preparation of a Regulatory located on the plaza level of the rule will be published in the Federal Evaluation as these routine matters will Department of Transportation NASSIF Register, and a notice of proposed only affect air traffic procedures and air
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49846 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
navigation. I certify that this rule will DEPARTMENT OF TRANSPORTATION received. Class E airspace designations not have a significant economic impact for airspace extending from 700 feet or on a substantial number of small entities Federal Aviation Administration more above the surface of the earth are under the criteria of the Regulatory published in paragraph 6005 of FAA Flexibility Act. 14 CFR Part 71 Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which List of Subjects in 14 CFR Part 71 [Docket No. FAA–2005–21005; Airspace Docket No. 05–AWP–2] is incorporated by reference in 14 CFR Airspace, Incorporation by reference, 71.1. The Class E airspace designation Navigation (air). Establishment of Class E Airspace; listed in this document will be Marana Regional Airport, AZ published subsequently in the Order. Adoption of the Amendment AGENCY: Federal Aviation The Rule n Accordingly, pursuant to the authority Administration (FAA), DOT. This amendment to 14 CFR part 71 delegated to me, the Federal Aviation ACTION: Final rule. modifies the Class E airspace area at Administration amends part 71 of the SUMMARY: Marana Regional Airport, AZ. The Federal Aviation Regulations (14 CFR This action establishes a Class E airspace area at Marana Regional establishment of a RNAV (GPS) RWY 3, part 71) as follows: Airport, AZ. The establishment of an 12, 21 and 30 IAP and a Nondirectional PART 71—DESIGNATION OF CLASS A, Area Navigation (RNAV) Global Radio Beacon (NDB) IAP to RWY 12 at CLASS B, CLASS C, CLASS D, AND Positioning System (GPS) Instrument Marana Regional Airport has made this action necessary. The effect of this CLASS E AIRSPACE AREAS; Approach Procedures (IAP) RNAV action will provide adequate airspace AIRWAYS; ROUTES; AND REPORTING (GPS) Runway (RWY) 3, 12, 21 and 30 IAP and a Nondirectional Radio Beacon for aircraft executing the RNAV (GPS) POINTS (NDB) IAP to RWY 12 at Marana RWY 3, 12, 21 and 30 IAP and NDB Regional Airport, Tucson, AZ has made RWY 12 IAP at Marana Regional n 1. The authority citation for part 71 this action necessary. Additional Airport, Tucson, AZ. continues to read as follows: controlled airspace extending upward The FAA has determined that this Authority: 49 U.S.C. 106(g), 40103, 40113, from 700 feet or more above the surface regulation only involves an established 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– of the earth is needed to contain aircraft body of technical regulations for which 1963 Comp., p. 389. executing these RNAV (GPS) and NDB frequent and routine amendments are approach procedures. The intended § 71.1 [Amended] necessary to keep them operationally effect of this action is to provide current. Therefore, this regulation—(1) n 2. The incorporation by reference in 14 adequate controlled airspace for is not a ‘‘significant regulatory action’’ CFR 71.1 of Federal Aviation Instrument Flight Rules operations at under Executive Order 12866; (2) is not Administration Order 7400.9M, Marana Regional Airport, Tucson, AZ. a ‘‘significant rule’’ under DOT Airspace Designations and Reporting EFFECTIVE DATE: 0901 UTC October 27, Regulatory Policies and Procedures (44 Points, dated August 30, 2004, and 2005. FR 11034; February 26, 1979); and (3) effective September 16, 2004, is FOR FURTHER INFORMATION CONTACT: The does not warrant preparation of a amended as follows: Office of the Regional Western Terminal Regulatory Evaluation as the anticipated Operations, Federal Aviation impact is so minimal. Since this is a Paragraph 6005 Class E airspace areas Administration, at 15000 Aviation routine matter that will only affect air extending upward from 700 feet or more Boulevard, Lawndale, California 90261, traffic procedures and air navigation, it above the surface of the earth. telephone (310) 725–6613. is certified that this rule will not have * * * * * SUPPLEMENTARY INFORMATION: a significant economic impact on a substantial number of small entities ASW NM E5 Santa Teresa, NM [New] History under the criteria of the Regulatory Dona Ana County Airport, NM On June 8, 2005, the FAA proposed to Flexibility Act. ° ′ ″ ° ′ ″ Lat. 31 52 51.55 N, Long. 106 42 17.33 amend 14 CFR parts 71 by modifying W. the Class E airspace area at Marana List of Subjects in 14 CFR Part 71 That airspace extending upward from 700 Regional Airport, AZ (05 FR 11326). feet above the surface within a 12.85-mile Airspace, Incorporation by reference, Additional controlled airspace Navigation (air). radius of the Dona Ana County, Santa Teresa, extending upward from 700 feet or more NM. above the surface is needed to contain Adoption of the Amendment * * * * * aircraft executing the RNAV (GPS) RWY n In consideration of the foregoing, the Issued in Fort Worth, TX, on August 18, 3, 12, 21 and 30 IAP and a Federal Aviation Administration 2005. Nondirectional Radio Beacon (NDB) IAP to RWY 12 at Marana Regional Airport, amends 14 CFR part 71 as follows: Samuel J. Gill, Jr., Tucson, AZ. This action will provide Acting Area Director, Central En Route and adequate controlled airspace for aircraft PART 71—DESIGNATION OF CLASS A, Oceanic Operations. executing the RNAV (GPS) RWY 3, 12, CLASS B, CLASS C, CLASS D, AND [FR Doc. 05–16924 Filed 8–24–05; 8:45 am] 21 and 30 IAP and NDB RWY 12 IAP CLASS E AIRSPACE AREAS; ROUTES; BILLING CODE 4910–13–M at Marana Regional Airport, Tucson, AND REPORTING POINTS AZ. Interested parties were invited to n 1. The authority citation for 14 CFR participate in this rulemaking, part 71 continues to read as follows: proceeding by submitting written Authority: 49 U.S.C. 106(g), 40103, 40113, comments on the proposal to the FAA. 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– No comments to the proposal were 1963 Comp., p. 389; 14 CFR 11.69.
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49847
§ 71.1 [Amended] http://dms.dot.gov or the government- received and confirming the date on n 2. The incorporation by reference in 14 wide Web site, http:// which the final rule will become CFR 71.1 of the Federal Aviation www.regulations.gov. Anyone can find effective. If the FAA does receive, Administration Order 7400.9M, and read the comments received in this within the comment period, an adverse Airspace Designations and Reporting docket, including the name, address and or negative comment, or written notice Points, dated August 30, 2004, and any other personal information placed of an intent to submit such a comment, effective September 16, 2004, is in the docket by a commenter. You may a document withdrawing the direct final amended as follows: hand deliver your comments and review rule will be published in the Federal the public docket containing any Register, and a notice of proposed Paragraph 6005 Class E airspace areas comments received and this direct final rulemaking may be published with a extending upward from 700 feet or more rule in person at the Dockets Office new comment period. above the surface of the earth. between 9 a.m. and 5 p.m., Monday Comments Invited * * * * * through Friday, except Federal holidays. Although this action is in the form of AWP AZ E5 Marana Regional, AZ [New] The Docket Office (telephone 1–800– 647–5527) is located on the plaza level a direct final rule, and was not preceded Marana Regional, AZ of the Department of Transportation by a notice of proposed rulemaking, (Lat. 32°24′34″ N, long. 111°13′06″ W) NASSIF Building at the street address interested persons are invited to That airspace extending upward from 700 stated previously. comment on this rule by submitting feet above the surface within a 6.6-mile An informal docket may also be such written data, views, or arguments radius of the Marana Regional, excluding that as they may desire. Communications portion within the Tucson Class E airspace examined during normal business hours at the office of the Air Traffic Division, must identify both docket numbers. All area. communications received on or before * * * * * Airspace Branch, Federal Aviation Administration, Southwest Region, 2601 the closing date for comments will be Issued in Los Angeles, California, on July Meacham Boulevard, Fort Worth, TX. considered, and this rule may be 29, 2005. Call the manager, Airspace Branch, amended or withdrawn in light of the John Clancy, ASW–520, telephone (817) 222–5520; comments received. Factual information Area Director, Western Terminal Operations. fax (718) 222–5981, to make that supports the commenter’s ideas and [FR Doc. 05–16926 Filed 8–24–05; 8:45 am] arrangements for your visit. suggestions is extremely helpful in evaluating the effectiveness of this BILLING CODE 4910–13–M FOR FURTHER INFORMATION CONTACT: action and determining whether Joseph R. Yadouga, Air Traffic Division, additional rulemaking action would be Airspace Branch, Federal Aviation DEPARTMENT OF TRANSPORTATION needed. Administration, Southwest Region, Fort Comments are specifically invited on Federal Aviation Administration Worth, TX 76193–0520; telephone: (817) the overall regulatory, economic, 222–5597. environmental, and energy aspects of 14 CFR Part 71 SUPPLEMENTARY INFORMATION: This the rule that might suggest a need to amendment to 14 CFR part 71 modifies modify the rule. All comments [Docket No. FAA–2005–22160; Airspace the Class E airspace area extending submitted will be available, both before Docket No. 2005–ASW–12] upward from 700 feet above the surface and after the closing date for comments, Modification to Class E Airspace; of Ruidoso, NM in conjunction with the in the Rules Docket for examination by Ruidoso, NM Sierra Blanca Regional Airport for interested persons. A report that which a new standard instrument summarizes each FAA-public contact AGENCY: Federal Aviation approach has been prescribed and will concerned with the substance of this Administration (FAA), DOT. be published in paragraph 6005 of FAA action will be filed in the Rules Docket. ACTION: Direct final rule; request for Order 7400.9M, dated August 30, 2004, comments. and effective September 16, 2004, which Agency Findings is incorporated by reference in 14 CFR This rule does not have federalism SUMMARY: This action modifies the Class 71.1. implications, as defined in Executive E airspace area at Santa Elena, TX to Order No. 13132, because it does not The Direct Final Rule Procedure provide adequate controlled airspace for have a substantial direct effect on the the Instrument Landing System (ILS) The FAA anticipates that this States, on the relationship between the standard instrument approach regulation will not result in an adverse national government and the States, or procedure (SIAP) at the Sierra Blanca or negative comment, and, therefore, on the distribution of power and Regional Airport (SRR). issues it as a direct final rule. The FAA responsibilities among the various DATES: Effective 0901 UTC, October 27, has determined that this regulation only levels of government. Accordingly, the 2005. involves an established body of FAA has not consulted with state Comments for inclusion in the Rules technical regulations for which frequent authorities prior to publication of this Docket must be received on or before and routine amendments are necessary rule. September 27, 2005. to keep them operationally current. The FAA has determined that this ADDRESSES: Send comments on the rule Unless a written adverse or negative regulation is noncontroversial and to the Docket Management System, U.S. comment, or a written notice of intent unlikely to result in adverse or negative Department of Transportation, Room to submit an adverse or negative comments. For the reasons discussed, I Plaza 401, 400 Seventh Street, SW., comment is received within the certify that this regulation (1) is not a Washington, DC 20490–0001. You must comment period, the regulation will ‘‘significant regulatory action’’ under identify the docket number, FAA–2005– become effective on the date specified. Executive Order 12866; (2) is not a 22160/Airspace Docket No. 2004–ASW– After the close of the comment period, ‘‘significant rule’’ under Department of 12, at the beginning of your comments. the FAA will publish a document in the Transportation (DOT) Regulatory You may also submit comments on the Federal Register indicating that no Policies and Procedures (44 FR 11034, Internet at the DOT docket Web site, adverse or negative comments were February 26, 1979); and (3) does not
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49848 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
warrant preparation of a Regulatory effective September 16, 2004, is FOR FURTHER INFORMATION CONTACT: Evaluation as these routine matters will amended as follows: Leigh Hayes, Office of Combination only affect air traffic procedures and air Products (HFG–3), Food and Drug navigation. I certify that this rule will Paragraph 6005 Class E airspace areas Administration, 15800 Crabbs Branch not have a significant economic impact extending upward from 700 feet or more Way, suite 200, Rockville, MD 20855, on a substantial number of small entities above the surface of the earth. 301–427–1934. under the criteria of the Regulatory ASW NM E5 Ruidoso, NM [Revised] SUPPLEMENTARY INFORMATION: Flexibility Act. Sierra Blanca Regional Airport, NM ° ′ ″ ° ′ ″ I. Introduction Authority for This Rulemaking Lat. 33 27 46.30 N, Long. 105 32 05.10 W That airspace extending upward from 700 In the Federal Register of May 7, 2004 The FAA authority to issue rules feet above the surface within a 7.1-mile (69 FR 25527), FDA published a regarding aviation safety is found in radius of the Sierra Blanca Airport and proposed rule that proposed to define Title 49 of the United States Code. within 4 miles each side of the 241° bearing ‘‘mode of action’’ (MOA) and ‘‘primary Subtitle I, section 106 describes the from the airport extending from 7.1-mile mode of action’’ (PMOA) (the proposed authority of the FAA Administrator. radius to 20.60 miles northeast of the Sierra rule). Along with these definitions, the Blanca Regional Airport. Subtitle VII, Aviation Programs, proposal set forth an algorithm the describes in more detail the scope of the * * * * * agency proposed to use to assign agency’s authority. Issued in Fort Worth, TX, on August 18, combination products to an agency This rulemaking is promulgated 2005. component for regulatory oversight under the authority described in subtitle Samuel J. Gill, Jr., when the agency cannot determine with VII, part A, subpart I, section 40103, Acting Area Director, Central En Route and reasonable certainty which mode of ‘‘Sovereignty and use of airspace.’’ Oceanic Operations. action provides the most important Under that section, the FAA is charged [FR Doc. 05–16925 Filed 8–24–05; 8:45 am] therapeutic action of the combination with developing plans and policy for BILLING CODE 4910–13–M product. Finally, the proposal put forth the use of the navigable airspace and a requirement that a sponsor make its assigning by regulation or order the recommendation of the agency airspace necessary to ensure the safety DEPARTMENT OF HEALTH AND component with primary jurisdiction for of aircraft and the efficient use of HUMAN SERVICES regulatory oversight of its combination airspace. The FAA may modify or product by using the PMOA definition revoke an assignment when required in Food and Drug Administration and, if appropriate, the assignment the public interest. This regulation is algorithm. within the scope of that authority 21 CFR Part 3 As set forth in part 3 (21 CFR part 3), because it is in the public interest to and as described in the proposed rule, [Docket No. 2004N–0194] provide greater control of the airspace a combination product is a product for the safety of aircraft operating in the Definition of Primary Mode of Action of comprised of any combination of a drug vicinity of the newly established a Combination Product and a device; a device and a biological standard instrument approach product; a biological product and a procedure. AGENCY: Food and Drug Administration, drug; or a drug, a device, and a HHS. biological product. A combination List of Subjects in 14 CFR Part 71 ACTION: Final rule. product includes: (1) A product Airspace, Incorporation by reference, comprised of two or more regulated Navigation (air). SUMMARY: The Food and Drug components, i.e., drug/device, biological Administration (FDA) is amending its product/device, drug/biological Adoption of the Amendment combination product regulations to product, or drug/device/biological define ‘‘mode of action’’ (MOA) and n Accordingly, pursuant to the authority product, that are physically, chemically, delegated to me, the Federal Aviation ‘‘primary mode of action’’ (PMOA). or otherwise combined or mixed and Administration amends part 71 of the Along with these definitions, the final produced as a single entity; (2) two or Federal Aviation Regulations (14 CFR rule sets forth an algorithm the agency more separate products packaged part 71) as follows: will use to assign combination products together in a single package or as a unit to an agency component for regulatory and comprised of drug and device PART 71—DESIGNATION OF CLASS A, oversight when the agency cannot products, device and biological CLASS B, CLASS C, CLASS D, AND determine with reasonable certainty products, or biological and drug CLASS E AIRSPACE AREAS; which mode of action provides the most products; (3) a drug, device, or AIRWAYS; ROUTES; AND REPORTING important therapeutic action of the biological product packaged separately POINTS combination product. Finally, the final that, according to its investigational rule will require a sponsor to base its plan or proposed labeling, is intended n 1. The authority citation for part 71 recommendation of the agency for use only with an approved continues to read as follows: component with primary jurisdiction for individually specified drug, device, or Authority: 49 U.S.C. 106(g), 40103, 40113, regulatory oversight of its combination biological product where both are 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– product by using the PMOA definition required to achieve the intended use, 1963 Comp., p. 389. and, if appropriate, the assignment indication, or effect and where upon algorithm. The final rule is intended to approval of the proposed product the § 71.1 [Amended] promote the public health by codifying labeling of the approved product would n 2. The incorporation by reference in 14 the agency’s criteria for the assignment need to be changed, e.g., to reflect a CFR 71.1 of Federal Aviation of combination products in transparent, change in intended use, dosage form, Administration Order 7400.9M, consistent, and predictable terms. strength, route of administration, or Airspace Designations and Reporting DATES: The regulation is effective significant change in dose; or (4) any Points, dated August 30, 2004, and November 23, 2005. investigational drug, device, or
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49849
biological product packaged separately Determining the PMOA of a framework for the assignment process, a that, according to its proposed labeling, combination product is also codified definition of PMOA will is for use only with another individually complicated for products that have two further MDUFMA’s requirement that the specified investigational drug, device, or completely different modes of action, agency ensure prompt assignment of biological product where both are neither of which is subordinate to the combination products. Also, by issuing required to achieve the intended use, other. In close cases, assignments may this final rule, the agency adheres to indication, or effect. turn on subtle distinctions related to the MDUFMA’s requirement that it review Section 503(g) of the Federal Food, determination of whether a mode of practices specific to the assignment of Drug, and Cosmetic Act (the act) (21 action is ‘‘primary,’’ or not. The combination products, consult with U.S.C. 353(g)) requires that FDA assign assignment process may appear to be stakeholders and center directors, and a component of the agency to have unpredictable when two slightly make a determination whether to primary jurisdiction for the regulation of different products are assigned to modify those practices. a combination product. That assignment different agency components based on Not only will this final rule fulfill the must be based upon a determination of differences in their PMOAs. objectives set forth in the preceding the PMOA of the combination product. To address these concerns, to simplify paragraph, it will do so in a way that For example, if the primary mode of the designation process for sponsors, remains consistent with agency practice action of a combination product is that and to enhance the transparency, regarding the assignment of of a biological product, the product is to predictability, and consistency of the combination products. This rulemaking be assigned to the FDA component agency’s assignment of combination will codify criteria the agency has responsible for the premarket review of products, FDA is issuing this final rule generally used since 1990. The final rule that biological product. FDA issued a to define ‘‘mode of action’’ and will apply to RFD submissions received final rule in 1991 establishing the ‘‘primary mode of action.’’ This final by the agency on or after its effective procedures (the ‘‘request for rule will clarify and codify principles date. designation’’ (RFD) process) for the agency has generally used since B. Stakeholder Input Prior to Proposed determining the assignment of section 503(g) of the act was enacted in Rulemaking combination products under part 3. 1990. The Medical Device User Fee and Before issuance of the proposed rule, Modernization Act of 2002 (MDUFMA) II. Description of the Final Rule FDA held public hearings on May 15, further modified section 503(g) of the A. Introduction 2002, and on November 25, 2002, and act to require the establishment of an a public workshop on July 8, 2003, to Office (Office of Combination Products) FDA is finalizing its proposal to discuss various issues pertaining to within the Office of the Commissioner. amend its combination product combination products, including the The purpose of the Office of regulations to create new definitions in assignment of products to an agency Combination Products is to ensure the § 3.2 of ‘‘mode of action’’ and ‘‘primary component for regulatory oversight. prompt assignment of combination mode of action.’’ This final rule also sets Stakeholders also provided a number of products to agency components, the forth a two-tiered assignment algorithm written comments to the dockets for timely and effective premarket review of in § 3.4, which the agency will use to these meetings, which FDA opened to such products, and consistent and determine assignment when it cannot further facilitate the discussion of appropriate postmarket regulation of determine with reasonable certainty PMOA issues. The agency received combination products. MDUFMA also which mode of action of a combination many thoughtful comments from the requires the agency to review each product provides the most important stakeholders who participated in those agreement, guidance, or practice therapeutic action of the product. discussions, as well as from specific to the assignment of Finally, the rule will require that stakeholders who submitted written combination products to agency sponsors base their recommendation of comments to the docket, including some components, consult with stakeholders which agency component should have pertaining to a definition of PMOA as and the directors of the agency centers, primary jurisdiction for regulatory well as others regarding the criteria for and determine whether to continue in oversight of its product on the PMOA the assignment algorithm if PMOA effect, modify, revise, or eliminate such definition and, if appropriate, the could not be determined. The November agreements, guidances, or practices. assignment algorithm. 2002 meeting in particular addressed Currently, § 3.7 requires a sponsor This final rule will fulfill the statutory questions regarding assignment. Some submitting a request for designation to requirement to assign products based on questions raised at the meeting were: identify the PMOA of the combination their PMOA, and will use safety and • What factors should FDA consider product and recommend a lead agency effectiveness issues, as well as in determining the PMOA of a component for its regulation. The consistency with the regulation of combination product? PMOA of a combination product, similar products, to guide the • In instances where the PMOA of the however, is not defined in the statute or assignment of products when the agency combination product cannot be regulations, and at times may be cannot determine with reasonable determined with certainty, what other difficult to identify. Requests for certainty which mode of action provides factors should the agency consider in assignment of combination products are the most important therapeutic action of assigning primary jurisdiction? usually submitted very early in a the combination product. It ensures that • Is there a hierarchy among these product’s development. This practice is like products would be similarly additional factors that should be encouraged because it allows sponsors assigned, and it allows new products for considered in order to ensure adequate to begin working with an agency which the most important therapeutic review and regulation (e.g., which component as early in the development action cannot be determined with component presents greater safety process as possible. For some products, reasonable certainty to be assigned to questions?) though, the PMOA of the product is not the most appropriate agency component Several common themes emerged readily apparent, to either FDA or the based on the most significant safety and from these comments regarding the product sponsor, at the time the request effectiveness issues they present. In definition of PMOA. For instance, many for assignment is submitted. addition, by providing a more defined stakeholders felt that the agency should
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49850 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
base any proposed definition of PMOA questions of safety and effectiveness being metabolized for the achievement on the combination product as a whole. presented by a combination product. of its primary intended purposes. FDA agrees, and has crafted the Therefore, if the agency cannot • A constituent part has a drug mode definition so that PMOA is based on the determine the most important of action if it meets the definition of most important therapeutic action of the therapeutic action of a combination drug contained in section 201(g)(1) of combination product as a whole. product, and there is no agency the act and it does not have a biological Furthermore, as detailed in the section component that regulates combination product or device mode of action. regarding the assignment algorithm, the products that as a whole present similar agency will consider the combination safety and effectiveness questions as the b. Primary mode of action is defined product as a whole when the agency combination product at issue, the as ‘‘the single mode of action of a cannot determine with reasonable agency will assign the product to the combination product that provides the certainty the most important therapeutic agency component with the most most important therapeutic action of the action of the product. expertise related to the most significant combination product. The most Another theme recurring in a number questions of safety and effectiveness of important therapeutic action is the of comments concerned the intended the product. In situations where the new mode of action that is expected to make use of the product. Several stakeholders product is the first such combination the greatest contribution to the overall expressed their desire that FDA product, or where another combination intended therapeutic effects of the construct a definition of PMOA around product exists but the intended use, combination product.’’ As with ‘‘mode this concept. As further described in design, formulation, etc. for this of action,’’ for purposes of PMOA, this document, mode of action is combination product raise different ‘‘therapeutic’’ effect or action includes defined as the means by which a safety and effectiveness questions, FDA product achieves its intended any effect or action of the combination will assign the product to the agency product intended to diagnose, cure, therapeutic effect or action. For over a component with the most expertise to decade, the agency has considered in its mitigate, treat, or prevent disease, or evaluate the most significant safety and affect the structure or any function of determination of PMOA an assessment effectiveness issues raised by the the body. of the product’s intended use, as well as product. its effect on the diagnosis, cure, 2. Assignment Algorithm mitigation, treatment, or prevention of C. What are ‘‘Mode of Action’’ and disease, and its effect on the structure or ‘‘Primary Mode of Action?’’ In certain cases, it is not possible for function of the body. The agency 1. Definitions either FDA or the product sponsor to intends to continue this practice, and determine, at the time a request is a. Mode of action is defined as ‘‘the has structured the PMOA definition to submitted, which mode of action of a include consideration of the intended means by which a product achieves its intended therapeutic effect or action. combination product provides the most use of a combination product. important therapeutic action. As with the definition for PMOA, For purposes of this definition, Determining the PMOA of a several common themes emerged from ‘therapeutic’ action or effect includes the comments regarding possible criteria any effect or action of the combination combination product is also to be considered when the product’s product intended to diagnose, cure, complicated for products where the most important therapeutic action mitigate, treat, or prevent disease, or product has two completely different cannot be determined with reasonable affect the structure or any function of modes of action, neither of which is certainty. For example, several the body.’’ Products may have a drug, subordinate to the other. To assign such stakeholders suggested that the agency biological product, or device mode of products with as much consistency, consider similarly situated products action. Because combination products predictability, and transparency as when assigning a combination product are comprised of more than one type of possible, the agency is issuing an to a lead agency component. We agree regulated article (biological product, algorithm to determine PMOA in those that both precedent and expertise are device, or drug), and each constituent instances, to be codified at § 3.4(b). In important when assigning a part contributes a biological product, those cases, the agency will assign the combination product to a particular device, or drug mode of action, combination product to the agency agency component, and we have placed combination products will typically component that regulates other this criterion first in the algorithm’s have more than one mode of action. combination products that present • decisionmaking hierarchy. Therefore, if A constituent part has a biological similar questions of safety and the agency cannot determine with product mode of action if it acts by effectiveness with regard to the reasonable certainty which mode of means of a virus, therapeutic serum, combination product as a whole. When toxin, antitoxin, vaccine, blood, blood action provides the most important there are no other combination products therapeutic effect, the agency will assign component or derivative, allergenic that present similar questions of safety the combination product to the agency product, or analogous product and effectiveness with regard to the component that regulates combination applicable to the prevention, treatment, products that present similar safety and or cure of a disease or condition of combination product as a whole (e.g., it effectiveness questions for the product human beings, as described in section is the first such combination product, or as a whole. 351(i) of the Public Health Service Act. differences in its intended use, design, Another factor many stakeholders • A constituent part has a device formulation, etc. present different safety asked the agency to consider when mode of action if it meets the definition and effectiveness questions), the agency developing an assignment algorithm of device contained in section 201(h)(1) would assign the combination product relates to the relative risks of a to (h)(3) of the act, it does not have a to the agency component with the most particular combination product. We biological product mode of action, and expertise to evaluate the most agree that this is an important it does not achieve its primary intended significant safety and effectiveness consideration, and take that into purposes through chemical action questions presented by the combination account with the second criterion, within or on the body of man or other product. which considers the most significant animals and is not dependent upon
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49851
III. Comments on the Proposed Rule would be difficult to identify with PMOA PROPOSED PMOA FINAL RULE and FDA’s Responses RULE certainty anything but a drug mode of action, since the statutory definition of A. Background 3.2(m) Primary mode 3.2(m) Primary mode drug is the broadest definition of the of action is the sin- of action is the sin- FDA received comments from 17 three. See, for example, 21 U.S.C. gle mode of action gle mode of action 321(g)(1)(C) (drug means articles other stakeholders on the proposal, and of a combination of a combination than food intended to affect the almost all comments supported the rule product that pro- product that pro- vides the most im- vides the most im- structure or any function of the body). in whole or in part. For example, one Additionally, it is important to keep comment said that ‘‘[o]verall* * * FDA’s portant therapeutic portant therapeutic action of the com- action of the com- in mind that this construction is used approach to primary mode of action bination product. bination product. only to determine a product’s various faithfully implements the statute’’ and The most important The most important modes of action to be considered in that ‘‘* * * FDA did a remarkable job in therapeutic action therapeutic action determining the PMOA. This listening to the comments on mode of is the mode of ac- is the mode of ac- construction does not necessarily action and primary mode of action tion expected to tion expected to determine how products will be expressed by stakeholders in prior make the greatest make the greatest regulated or the appropriate type of contribution to the contribution to the hearings.’’ Another comment ‘‘agree[d] overall therapeutic overall intended application for a combination product’s with FDA’s proposed definition of effects of the com- therapeutic effects review. primary mode of action’’ and ‘‘praise[d] bination product. of the combination Finally, we note that cell and gene FDA for the simplicity and consistency product. therapy components typically have a of the proposed assignment algorithm.’’ biological product MOA. For example, certain cell and gene therapy A few general themes emerged from The agency has included ‘‘intended therapeutic effect’’ in the MOA components meet the definition of an the comments. Though generally definition and ‘‘overall intended ‘‘analogous’’ product applicable to the supportive, the comments asked that therapeutic effects’’ in the PMOA prevention, treatment, or cure of a FDA provide the following clarification: definition. FDA made these changes disease or condition of human beings, as (1) Clarification of the role of precedent because the ‘‘intended’’ therapeutic described in section 351(i) of the PHS in determining a combination product’s effect is a basic premise upon which the Act. PMOA; (2) clarification of the role of PMOA analysis is prefaced. (Comment 2) One comment stated intended use in determining a that FDA should clarify that the combination product’s PMOA; (3) B. MOA, PMOA, and the Assignment definition of MOA relates only to the clarification of the status of the Algorithm definition of each individual Intercenter Agreements established in 1. MOA Definition component. The comment also provided 1991 and their role in determining a alternative definitions for device MOA, (Comment 1) Two comments stated product’s PMOA; and (4) more drug MOA, and biological product that the definitions of drug, device, and examples to show how the PMOA MOA. biological product MOAs meant that (Response) FDA agrees and clarifies definition might be applied to assign an any product with a biological product that the definition of MOA relates only agency component with primary component could never be a drug or a to the definitional status of each jurisdiction for regulatory oversight of a device. One comment was concerned individual component. In addition, the combination product. that this definition will cause certain comment suggested in part that FDA After reviewing the comments, FDA cellular and tissue-based combination change ‘‘mode of action’’ to take into made two changes to the codified products to be regulated as biological account a constituent part’s ‘‘‘intended’ portion of this rule. The differences products, or impact the classification of therapeutic * * * effect * * *.’’ Because between the language in the proposed single entity products. One comment intended use is a basic tenet upon and final rules are set forth in italics as stated that products relying on cell or which the PMOA determination is follows: gene therapy would not have a premised, we agree, and have revised biological product MOA based on the that definition accordingly. Another definition provided. PMOA PROPOSED PMOA FINAL RULE suggestion was that we change the word RULE (Response) ‘‘Drug,’’ ‘‘device,’’ and ‘‘action’’ to ‘‘function’’ in both the ‘‘biological product’’ are defined by definition of MOA and PMOA. We have 3.2 (k) Mode of action 3.2 (k) Mode of action statute, and in defining MOA, FDA addressed that suggestion in the PMOA is the means by is the means by implemented those statutory definition section. We have also which a product which a product definitions. The statute defines addressed our rationale for the achieves a thera- achieves its in- biological products based on their peutic effect. tended therapeutic development of the definitions of device effect or action. composition rather than their effects or MOA, drug MOA, and biological mechanisms of action. FDA adhered to product MOA in the response to the definition of each article as set forth comment 1 of this document. in the statutes, while focusing on the (Comment 3) One comment stated factors that the statutes identify as that the proposed rule’s definition of distinct for biological products, devices, mode of action ‘‘almost pre-supposes and drugs. We followed this rationale that a constituent part itself may be a because a biological product will also combination of items,’’ and ‘‘a meet the statutory definition of drug or constituent part cannot itself be a device, and a device will also meet the combination product.’’ statutory definition of drug. Without (Response) FDA agrees and here mutually exclusive definitions of MOA, clarifies that constituent parts are based on the unique characteristics of components and not, in themselves, biological products and devices, it combination products.
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49852 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
(Comment 4) One comment stated Moreover, FDA stated in the May specificity and that it will be applied that the definition of MOA of 2004 PMOA proposed rule that, for appropriately, not arbitrarily. constituent parts should take into purposes of both the MOA and PMOA (Comment 10) Two comments stated account the intended use of a definitions, ‘‘therapeutic’’ effect or that the PMOA definition should combination product as a whole, and action ‘‘includes any effect or action of include the intended use of the product should not strictly rely on statutory the combination product intended to as a whole. In addition, one comment definitions. diagnose, cure, mitigate, treat, or stated that, assuming we include (Response) FDA agrees that the prevent disease, or affect the structure intended use of the product as a whole intended use of a combination product or any function of the body.’’ The term and are guided by precedents, the use of is an important factor in the PMOA ‘‘therapeutic,’’ therefore, encompasses the ‘‘reasonable certainty’’ standard is analysis. Therefore, we have changed the actions or effects of drugs, biological acceptable. the codified definition of MOA to take products, and devices. As a result, the (Response) As stated in the proposal, into account a constituent part’s use of the term ‘‘therapeutic action’’ in FDA reviewed the vast majority of our intended therapeutic effect or action. the MOA and PMOA definitions will prior jurisdictional determinations and The MOA definition is subsumed into not cause jurisdictional determinations found that those assignments would not the PMOA definition, where we take to be skewed toward drugs and have changed based on the definition of into account the combination product as biological products and away from PMOA finalized here. The definition set a whole: ‘‘The most important devices. forth here is intended to clarify and therapeutic action is the mode of action (Comment 8) Two comments codify the principles that FDA has used expected to make the greatest requested that FDA explain how it will since 1990 in making jurisdictional contribution to the overall intended determine the most important assignments. FDA agrees that intended therapeutic effects of the combination therapeutic action of a combination use plays an important role in the product’’ (emphasis added). product. PMOA analysis. Consequently, the revised definition of MOA will read: (Comment 5) One comment stated (Response) As explained in new ‘‘Mode of action is the means by which that the statutory definitions of drug, § 3.2(m), the most important therapeutic a product achieves its intended device, and biological product should mode of action is the mode of action therapeutic effect or action.’’ The MOA be updated to take into account expected to make the greatest definition is subsumed into the PMOA emerging product technologies. contribution to the overall intended definition, where we take into account therapeutic effects of the combination (Response) Revisions of the statutory the combination product as a whole. product. To make this determination, definitions of drug, device, and Furthermore, we have revised the biological product would require FDA would consider the intended use of PMOA definition to include intended congressional action and are outside the the combination product as a whole, use as well: ‘‘The most important scope of this rule. and how it achieves its overall intended therapeutic action is the mode of action (Comment 6) One comment stated therapeutic effect. Though not an expected to make the greatest that the language used to define device exhaustive list (because each contribution to the overall intended mode of action was inconsistent with combination product presents different therapeutic effects of the combination the language defining drug mode of questions about its scientific product’’ (emphasis added). action. characteristics and use), some other (Comment 11) One comment stated (Response) FDA has reviewed the factors FDA would consider in that the intended use of a product definitions, and disagrees. The agency determining a combination product’s should dictate its PMOA. In turn, believes that the language in the most important therapeutic action PMOA should determine assignment of definitions clearly and consistently include: The intended therapeutic effect the product to an agency component for defines biological product, device, and of each constituent part, the duration of review and regulation, as well as the drug modes of action for the purposes the contribution of each constituent part regulatory authorities to be applied. of part 3. toward the therapeutic effect of the This comment also stated that the product as a whole, and any data or 2. PMOA Definition algorithm should be used only when information provided by the applicant PMOA cannot be determined, and if the (Comment 7) One comment suggested or available in scientific literature that algorithm is used to determine the that FDA change the word ‘‘action’’ in describe the mode of action expected to jurisdiction of the product, two the MOA and PMOA definitions to make the greatest contribution to the applications and two separate approvals ‘‘function.’’ The comment also overall intended therapeutic effects of would be necessary for its review. suggested that the term ‘‘therapeutic’’ as the combination product. (Response) As described previously in in ‘‘therapeutic action’’ is more (Comment 9) One comment requested this document, FDA agrees that commonly used in connection with that FDA clarify the meaning of intended use plays an integral role in drugs and biological products. ‘‘reasonable certainty.’’ Another the PMOA analysis, and we have Consequently, the comment stated, use comment expressed concern that the revised the MOA and PMOA definitions of the term ‘‘therapeutic action’’ might standard was subject to abuse. accordingly. skew jurisdictional decisions away from (Response) In general, it would be However, we do not require in this devices and toward drugs and biological possible to determine the PMOA of a rule that PMOA dictates the regulatory products. combination product with ‘‘reasonable authorities to be applied to a (Response) FDA declines to make that certainty’’ when the PMOA is not in combination product’s review and change because we believe ‘‘action’’ is a doubt among knowledgeable experts, regulation. The application of regulatory more appropriate term than ‘‘function’’ and can be resolved to an acceptable authorities to a combination product is as it pertains to the MOA and PMOA level in the minds of those experts outside the scope of this rule. The Safe definitions. The term ‘‘action’’ is based on the data and information Medical Devices Act of 1990 (SMDA) intrinsic to ‘‘primary mode of action’’ available to FDA at the time an established a rule determining which and the term is therefore most closely assignment is made. FDA believes that ‘‘persons’’ would be responsible for tied to the statute. this standard provides adequate regulating combination products. See 21
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49853
U.S.C. section 353(g)(1). This law 3. Assignment Algorithm effectiveness issues it presents when no addresses the agency component a. First criterion. agency component has direct experience responsible for regulating a combination (Comment 13) One comment in the review of the product as a whole. product, but does not address which suggested that we clarify that the term FDA also agrees with the comment that authorities, including which application ‘‘direct experience,’’ as set forth in the significant safety and effectiveness schemes, the persons identified must proposed rule’s explanation of the issues should be considered on a case- use to regulate the combination product. algorithm, is not part of the analysis at by-case basis. As with jurisdictional Under this SMDA provision, the the first tier of the algorithm. determinations made prior to the agency would decide the following: (1) (Response) The term ‘‘direct issuance of this rule, FDA intends to Whether to recommend that a single experience’’ is not part of the codified make assignments by considering the application for the combination product language used to describe the first tier unique issues raised by each individual be used, and if so, what kind of of the algorithm to be used when the combination product. (Comment 16) Three comments asked application should be used new drug agency is unable to determine the that FDA explain how it would application (NDA), abbreviated new PMOA with reasonable certainty. FDA determine the most significant safety drug application (ANDA), biologics here clarifies that its use of the term and effectiveness issues presented by license application (BLA), 510(k), or ‘‘direct experience’’ in the proposed the product. One comment suggested premarket approval application (PMA); rule’s explanation of the algorithm was or (2) whether to require more than one that the preamble to the proposal simply a reference to the first criterion implied that FDA intended to base these application; for example, a BLA for the of the algorithm, which states that the biological product component, and a determinations primarily on an agency will assign a combination assessment of the product’s ‘‘relative PMA for the device component of a product to the agency component that combination product. (See 21 CFR 3.4(b) risks.’’ Another comment asked that regulates other combination products FDA issue a guidance document to (‘‘The designation of one agency that present similar questions of safety component as having primary clarify the agency’s determination of the and effectiveness with regard to the most significant safety and effectiveness jurisdiction for the premarket review combination product as a whole. and regulation of a combination product issues. (Comment 14) One comment asked (Response) FDA agrees that risk is not does not preclude consultations by that how FDA will determine whether a always the driving factor in determining component with other agency product presents similar safety and appropriate jurisdiction; rather it is one components or, in appropriate cases, the effectiveness questions. factor that the agency may consider. requirement by FDA of separate (Response) FDA will consider The questions listed in this response applications.’’)) products the agency has already to comment 16 of this document are It also appears that the comment reviewed as well as products that are intended to further illustrate the kinds presupposes that FDA would not currently under review to determine of issues FDA would consider when identify a PMOA if there are two whether a product presents similar determining the most significant safety independent modes of action. FDA safety and effectiveness questions. and effectiveness questions presented disagrees. A combination product may Though the examples are not intended by a combination product, or whether a have two independent modes of action, to be exhaustive, FDA includes in the new combination product presents yet FDA still may be able to determine response to Comment 16 of this similar safety and effectiveness issues as the product’s most important document the types of questions that a previous product. We note that the list therapeutic action with reasonable FDA may consider, as appropriate, of factors is not all-inclusive. FDA certainty. However, FDA’s experience in when making the determination of considers its ability to continue to evaluating combination products has whether a combination product presents assess the individual characteristics of shown that for a small subset of questions of safety and effectiveness particular products to be essential. This products, the most important that are similar to questions presented will allow the agency to respond to therapeutic action is not determinable by other combination products. technological developments, scientific with reasonable certainty. Therefore, b. Second criterion. understanding, factual information FDA needs a mechanism to ensure that (Comment 15) One comment concerning a specific product, or the these types of products are assigned suggested that our use of the term composition, mechanism of action or with consistency, transparency, and ‘‘expertise’’ might cause divisiveness intended use of a particular product. As predictability. Out of necessity and with within FDA and industry. The comment described previously in this document, the authority granted to the agency by recommended that the focus be on the need to consider appropriate issues Congress, FDA established the algorithm safety and effectiveness issues rather on a case-by-case basis was supported to accomplish these goals. Once an than ‘‘expertise.’’ In considering the by some of the comments. The questions assignment is made under the most significant safety and effectiveness are not listed in order of importance; algorithm, FDA will decide the number questions, the comment recommended indeed some factors may be weighted (one or more), and type, of applications that FDA make these judgments on a more than others depending on various that are necessary. case-by-case basis. issues presented by each individual (Comment 12) One comment asked (Response) FDA agrees that the focus combination product. that FDA clarify whether PMOA here should be on the most significant • What is the intended use of the determined designation only, or safety and effectiveness issues presented product? whether it also determined the by a combination product. Use of the • What is the therapeutic effect of the controlling regulatory authorities and term ‘‘expertise’’ is not meant to be product as a whole? the degree of collaboration between divisive or imply a value judgment. • Does the device component Centers. Instead, the ‘‘expertise’’ criterion at this incorporate a novel or complex design (Response) As stated in the response level is used merely as the most or have the potential for clinically to Comment 11 of this document, FDA appropriate means to direct the significant failure modes? here clarifies that PMOA is assignment of a combination product • Is this a new molecular entity or determinative of assignment only. based on the most significant safety and new formulation?
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49854 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
• Has the drug previously been with reasonable certainty. We note, too, encompass types of combination approved as a generic drug? that if FDA fails to make a jurisdictional products developed after the • Does the drug have a narrow determination within 60 days, the Agreements were written in 1991. therapeutic index? combination product would then (Response) FDA confirms that the • Is the biological product component automatically be assigned to the agency ICAs referenced at § 3.5(a)(1) continue a particularly fragile molecule? component recommended by the to provide helpful guidance related to • How well understood are the sponsor. FDA believes that the final product jurisdiction, including the product’s components? Is one codified language, together with the assignment of some types of component relatively routine, while the regulations currently in place, combination products. The ICAs were other presents more significant safety adequately takes into account a developed following the enactment of and effectiveness issues due to the risks sponsor’s recommendation of the PMOA criterion used to make it poses, its effectiveness, or novelty? jurisdictional assignment of its assignments of combination products. • Which component raises greater combination product. Consequently, PMOA principles were risks? used in the ICAs’ development. For • Has either of the components been 5. Flow Chart example, the ICA between CDER and previously approved or cleared? (Comment 19) Two comments CDRH assigns to CDRH products such as • Is there a new indication, route of suggested that FDA include the flow a ‘‘device incorporating a drug administration or a significant change in chart in a guidance rather than the final component with the combination dose or use of one of the components, rule. product having the primary intended or are only secondary aspects of the (Response) FDA has not included the purpose of fulfilling a device function.’’ labeling affected? flow chart in the codified section of the The premise underlying the assignment FDA is not issuing a guidance final rule. However, we believe that the to CDRH is that the device component document on this topic at this time. flow chart is a useful tool to illustrate of such a product provides the most However, FDA will take the suggestion how the PMOA process works; important therapeutic action of the under advisement, and will reconsider therefore, we included it in the product. The CDER–CDRH ICA assigns issuance of such guidance if it becomes preamble of the proposed rule merely to CDER prefilled delivery systems, apparent after implementation of the for its instructional use. such as a ‘‘device with primary purpose final rule that more clarification is (Comment 20) One comment of delivering or aiding in the delivery of needed. suggested that FDA replace the a drug and distributed containing a (Comment 17) One comment reference in the flow chart to ‘‘an agency drug.’’ The premise of this assignment recommended that FDA consider the component with responsibility for that to CDER is that the device’s primary ‘‘least burdensome’’ requirements of the type of device’’ by the ‘‘agency purpose in delivering or aiding in the device provisions of the act, as well as component with responsibility for delivery of a drug is subordinate to the the ‘‘Improving Innovation in Medical devices’’ to ensure that CDRH has most important therapeutic action Technology’’ and ‘‘Critical Path to New primary jurisdiction. provided by the drug product. Similarly, Medical Products’’ initiatives, which are (Response) FDA included the the ICA between CBER and CDER specifically intended to advance phrasing as written because it assigned to CDER ‘‘combination innovation of new medical technologies encompasses the subsets of drugs and products that consist of a biological by, among other things, use of a variety devices regulated by the Center for component and a drug component of premarket resources and tools (e.g., Biologics Evaluation and Research where the biological component early collaboration meetings, 100–day (CBER) and biological products enhances the efficacy or ameliorates the meetings, modular reviews, etc.). regulated by the Center for Drug toxicity of the drug product.’’ The (Response) As stated in the response Evaluation and Research (CDER). While premise underlying this assignment is to Comments 11 and 12 of this most devices are regulated by the Center that the drug product provides the most document, assignment only directs a for Devices and Radiological Health important therapeutic action of the product to an agency component, and (CDRH), certain devices, such as those product, while the biological product does not dictate the regulatory related to blood collection and has a subordinate role in enhancing authorities that will be used. processing, have long been regulated by such action. These principles are CBER, and while most biological preserved by the definition described in 4. Miscellaneous Algorithm Questions products are regulated by CBER, certain this rule. (Comment 18) One comment therapeutic biological products are now Nonetheless, the Intercenter suggested that FDA add the sponsor’s regulated by CDER. A drug-device Agreements were developed in 1991 recommendation of assignment to the combination product with a device and do not address many types of algorithm. PMOA, where the device is regulated by combination products developed since (Response) FDA agrees that the CBER, would be assigned to CBER. that time. Furthermore, we note that, sponsor’s recommendation of Similarly, a biological product-device although the ICAs were developed jurisdictional assignment plays a combination product with a biological before the regulations governing good significant role in the process of making product PMOA, where the biological guidance practices, the Agreements jurisdictional determinations. Indeed, product is regulated by CDER, would be constitute guidance, which is not the sponsor’s recommendation of assigned to CDER. binding. See 21 CFR 10.115(d)(1). assignment is a required element of an Moreover, the ICAs describe sometimes RFD under § 3.7(c)(3). FDA takes into C. Status of Intercenter Agreements broad categories of products, and account the information provided by the (Comment 21) Several comments because PMOA might vary depending sponsor as well as the sponsor’s asked that FDA confirm that the on a combination product’s specific recommendation of jurisdictional Intercenter Agreements (ICAs) remain characteristics and use, the ICA assignment not only when it is viable in helping FDA determine the recommendations may not be necessary to use the algorithm, but also appropriate agency component for appropriate for every single product when FDA initially decides whether the premarket review and regulation of within a broad category. FDA is actively PMOA of a product can be determined products, or update the Agreements to considering whether to continue in
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49855
effect, modify, revise, or eliminate the F. Review of Specific Types of Products algorithm, when FDA assesses the most ICAs and plans in the near future to (Comment 24) One comment significant safety and effectiveness further clarify the role of the ICAs in requested that FDA clarify how the rule questions presented by the combination light of other available information, affects general-purpose drug delivery product. such as this rule and more recent devices. Another comment asked FDA (Comment 26) One comment stated jurisdictional information made to clarify the applicability of a particular that, without additional clarification of available on the Office of Combination principle described in the CDER–CDRH the role of precedents, the PMOA Products (OCP’s) Internet site. FDA ICA related to unfilled drug delivery analysis as applied to pharmacogenomic believes the issuance of this final rule devices. The pertinent section of that drug/diagnostic device products might will help clarify jurisdiction for ICA states that a device with the lead to uncertain results. The comment combination products generally. primary purpose of delivering or aiding also identified a number of products and suggested that they would not be D. Role of Precedents in the delivery of a drug that is distributed without a drug (i.e., considered under the PMOA rule as precedents because historically they (Comment 22) Several comments unfilled), where the drug and device have not been designated as asked that FDA clarify the role of would be developed and used together combination products. In addition, the precedent in the jurisdictional as a system, would be assigned to a lead comment expressed concern that after determination of a combination product. Center after considering whether the drug or device had been previously this rule’s enactment, the device (Response) FDA believes that approved and the dominance of the component of these types of products precedent plays a very important role in drug or device issues. A third comment would no longer be reviewed separately determining the assignment of a asked for clarification that delivery by CDRH, as historically has been the combination product. First, the devices that are distributed unfilled and case. definition of PMOA finalized here is determined not to require conforming (Response) FDA has clarified the role based on past practice and will preserve changes to drug labeling are devices. For of precedents earlier in this section of precedent. FDA has long considered a instance, the comment asked for the document. With regard to the product’s most important therapeutic clarification of the regulatory status of application of the PMOA analysis to action in determining the primary mode closed loop insulin delivery systems pharmacogenomic drug/diagnostic of action of a combination product and and catheters to deliver clot-busting device products, the comment is correct the concept of ‘‘most important drugs, which also act physically to in noting that not all such products are therapeutic action’’ also underlies the dissolve the clot. combination products, and when they assignments of combination products (Response) In order to be a are not, the drug and device would be outlined in the Intercenter Agreements. combination product, a product must regulated as separate entities. In addition, the role of precedent is meet one of the definitions found in (Comment 27) One comment asked encompassed in the first criterion of the § 3.2(e). By their general nature, that OCP continue its role in the assignment algorithm, for use when the unfilled, general-purpose drug delivery regulatory oversight of drug/biological agency cannot determine a combination devices typically do not meet the product combinations, even when CDER product’s PMOA with reasonable definition of a combination product has regulatory responsibility for both certainty. That criterion directs FDA to because they are not physically the drug and biological product assign a combination product to the combined or packaged with, or tied by components. agency component that regulates other labeling to a particular drug, so such (Response) A drug-biological product combination products that present products are regulated as devices. The remains a combination product even if similar safety and effectiveness specific types of products mentioned in both components are reviewed by the questions with regard to the product as comment 24 of this document could be same Center. FDA agrees that OCP a whole. single-entity devices as long as they are continues to have oversight provided without the drugs, and the responsibility, consistent with 21 USC E. Application of Regulatory Authorities labeling of the drugs does not need to 353(g)(4) and the regulations set forth in in the Review of Combination Products change to reflect their use. The 21 CFR Part 3, for drug/ biological product combination products even (Comment 23) A few stakeholders assignment of delivery devices that are not combination products as defined by when both the drug and biological asked FDA to clarify which good product components are regulated by manufacturing practices and adverse § 3.2(e) is outside the scope of this rule. (Comment 25) One comment asked CDER. FDA’s jurisdictional update on event reporting authorities would apply FDA to clarify how several variables drug-biological product combination to the regulation of a combination would impact PMOA. These questions products, available at http:// product. Other comments asked were as follows: What if the drug www.fda.gov/oc/combination/ whether single or separate marketing component is an old, generic, off-patent biologic.html, provides more applications would be appropriate for drug? What if the mode of information. certain types of combination products, administration and dosage of the drug (Comment 28) One comment asked and how user fees are handled for are changed only slightly? What if the that over-the-counter (OTC) drug and combination products. drug indication remains the same? What dietary supplement combinations be (Response) As explained previously if only secondary aspects of drug classified as combination products. in this document, this final rule applies labeling (e.g., precautions, instructions (Response) Under 21 U.S.C. 353(g) only to the jurisdictional assignment of for use) change? and 21 CFR part 3, a combination combination products to an agency (Response) These questions would not product is a product comprised of any component for review and regulatory affect the determination of PMOA (i.e., combination of a drug and a device; a oversight. The specific regulatory the most important therapeutic action of device and a biological product; a authorities to be applied to a a combination product), but they are biological product and a drug; or a drug, combination product are outside the factors FDA would consider, as a device, and a biological product. scope of this rule. appropriate, at the second tier of the Classification of OTC drug and dietary
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49856 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
supplement combinations is outside the the same device combined with some of the examples suggested and scope of this rule. different drug products may be assigned developed additional hypothetical (Comment 29) One comment asked to different divisions within CDER, examples. FDA believes the examples that FDA clarify whether tissue- which could result in confusing or provided in this response to comment engineered products, such as human- conflicting requirements for the release 34 of this document, along with the derived fibroblasts cultured in vitro on testing or labeling of the device. capsular descriptions of prior a synthetic scaffold, are considered to be (Response) As stated previously in jurisdictional determinations posted on combination products. this document, FDA is required by OCP’s website, and the types of (Response) While classification of statute to assign a product to an agency questions FDA considers when making particular products is outside the scope component for review based on its assignments of combination products, of this rule, we note that many tissue PMOA. FDA has developed a Standard further illustrate the process FDA uses engineered products, such as the Operating Procedure (SOP) to help when making assignments. product described in comment 29 of this ensure efficient and effective document, are comprised of biological consultation and collaboration between Examples Repeated From Proposed Rule product and device components, and the Centers on such reviews. Such a. Conventional drug-eluting stent. A therefore meet the definition of a consultation and collaboration will also vascular stent provides a mechanical combination product as defined in help to ensure uniformity in approaches scaffold to keep a vessel open while a § 3.2(e). by the review divisions. This review drug is slowly released from the stent to (Comment 30) One comment asked process is outlined in further detail in prevent the buildup of new tissue that FDA to note that the review timelines of the FDA SOP for Intercenter would reocclude the artery. combination products would be Consultative/Collaborative Review • PMOA Analysis—Which mode of consistent with the performance goals of Process, available at http:// action provides the most important the primary review Center. Another www.fda.gov/oc/ombudsman/ therapeutic action of the combination comment asked FDA to address the intercentersop.pdf. product? review timelines for a combination In this case, the product has two product in which the agency has Examples modes of action. One action of the required that the sponsor submit (Comment 33) Several comments vascular stent is to provide a physical separate marketing applications. asked that FDA provide more examples, scaffold to be implanted in a coronary (Response) Review timelines are particularly examples illustrating how artery to improve the resultant arterial outside the scope of this rule. We note drug and biological product luminal diameter following angioplasty. that review timeframes are associated combination products would be Another action of the product is the with the type of marketing application, reviewed. One comment recommended drug action, with the intended effect of rather than the reviewing Center. that FDA include examples of reducing the incidence of restenosis and Further information on these issues, as copackaged and cross-labeled the need for target lesion well as other information regarding the combination products. revascularization. timeliness of reviews, is discussed in (Response) FDA agrees, and we • Assignment of Lead Agency FDA’s guidance document on dispute provide 11 hypothetical examples in Component: CDRH resolution available at http:// this section of the document, three of The product’s primary mode of action www.fda.gov/oc/combination/. which were also provided in the is attributable to the device component’s (Comment 31) One comment asked proposal. We note that the interferon/ function of physically maintaining that FDA clarify how the agency would ribavirin combination product is an vessel lumen patency, while the drug evaluate new uses for a product using example where the two components plays a secondary role in reducing the PMOA analysis. may be either copackaged or separately restenosis caused by the proliferative (Response) FDA is required by statute provided but labeled to be used response to the stent implantation, to assign a product to an agency together; the same assignment would augmenting the safety and/or component for review based on its result in either situation. In addition, we effectiveness of the uncoated stent. PMOA. Stakeholders have urged, and have posted a list of selected capsular Accordingly, FDA would assign the FDA agrees, that determination of a descriptions illustrating many prior product to CDRH for regulation because product’s PMOA should take into jurisdictional determinations, which is the device component provides the most account the product’s intended use. available on our website at http:// important therapeutic action of the Therefore, it is possible that a single www.fda.gov/oc/combination/ product. It is unnecessary to proceed to product, intended for two different determinations.html. FDA believes the assignment algorithm because it is purposes, may be assigned to different these descriptions also help to illustrate possible to determine which mode of agency components for review of those the jurisdictional determination process. action provides the most important different uses if the PMOA for each use (Comment 34) One comment listed a therapeutic action of this particular directs the assignment to a different number of hypothetical products, and combination product. agency component. However, FDA will asked that FDA explain how it would b. Drug Eluting Disc. A surgically strive to minimize the impact of these review and regulate them, so that implanted disc contains a drug that is assignments where possible. stakeholders would have a better slowly released for prolonged, local (Comment 32) One comment was understanding of the process FDA uses delivery of chemotherapeutic agents to concerned that the PMOA definition when making assignments of a tumor site. would direct all drug delivery devices combination products. • PMOA Analysis—Which mode of combined with a drug product to CDER. (Response) FDA notes that some of action provides the most important The comment mentioned a specific the comment’s examples are not therapeutic action of the combination example of an approved drug product in combination products and, therefore, product? its approved container, with no change fall outside the scope of the rule, while In this case, the product has two to the route of administration, combined other examples lack sufficient detail for modes of action. This product has a with an innovative delivery device. FDA to work through as a hypothetical device mode of action because it is Additionally, the comment stated that exercise. However, FDA used or adapted surgically implanted in the body and is
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49857
designed for controlled drug release, effectiveness questions with regard to therapeutic protein to coat the inside thus affecting the structure of the body the constituent parts of the product, surfaces of the device. In this and treating disease. Another mode of neither agency component regulates hypothetical example, the fusion cage, a action is the drug action, with the combination products that present permanent implant, maintains the intended effect of preventing tumor similar safety and effectiveness spacing and stabilizes the diseased recurrence at the implant site. questions with regard to the product as region of the spine, while the protein is • Assignment of Lead Agency a whole. used to encourage the formation of bone Component: CDER Because there is no agency within the fusion cage to further Though the product has a device component that regulates products that stabilize this portion of the spine as well mode of action, the product’s primary present similar safety and effectiveness as the cage itself. mode of action is attributable to the questions with regard to the product as • PMOA Analysis—Which Mode of drug component’s function of a whole, it is necessary to apply the Action Provides the Most Important preventing tumor recurrence at the second criterion of the algorithm. Therapeutic Action of the Combination implant site. Accordingly, we would • Which agency component has the Product? assign the product to CDER for most expertise related to the most In this case, the product has two regulation because the drug component significant safety and effectiveness modes of action. One action is the provides the most important therapeutic questions presented by the combination device component’s action to action of the product. It is unnecessary product? mechanically maintain the to proceed to the assignment algorithm Assignment of Lead Agency Component: intervertrebral spacing and stabilize the because it is possible to determine CDER— diseased region of the spine. Another which mode of action provides the most Because there is no agency action is the therapeutic protein’s action important therapeutic action of this component that regulates combination to encourage the formation of bone particular product. products that present similar safety and within the fusion cage to further c. Contact Lens Combined With Drug effectiveness issues with regard to the stabilize the cage and this portion of the to Treat Glaucoma. In this case, a product as a whole, the agency would spine. contact lens is placed in the eye to consider which agency component has Assignment of Lead Agency Component: correct vision. The contact lens also the most expertise related to the most CDRH contains a drug to treat glaucoma that significant safety and effectiveness The product’s PMOA is attributable to will be delivered from the lens to the questions presented by the product. In the device component’s action to eye. this hypothetical example, the most mechanically maintain the • PMOA Analysis—Which mode of significant safety and effectiveness intervertebral spacing and stabilize the action provides the most important questions are related to the diseased region of the spine, while the therapeutic action of the combination characterization, manufacturing, and therapeutic protein’s action to product? clinical performance of the drug encourage bone formation within and This product has two modes of action. component, while the safety and around the cage plays a secondary role. One action of the product is the device effectiveness questions raised by the In this hypothetical example, the action, to correct vision. Another action vision-correcting contact lens are therapeutic protein does not have the of the product is a drug action, to treat considered more routine. It should also mechanical properties necessary to glaucoma. Though administration be noted that CDER has expertise in the maintain the spacing and stabilize the through a contact lens is not necessary review of other drugs delivered using a spine if used alone. Furthermore, for the drug’s delivery, the combination contact lens. Based on the application of clinically successful spinal fusion, i.e., product allows a patient requiring this criterion, this product would be pain reduction and stability of the vision correction to receive glaucoma assigned to CDER because CDER has the spine, can be achieved even in the treatment without having to undertake a most expertise related to these issues. absence of bone growth within the cage. more complicated daily drug regimen. d. Contact Lens Combined With Drug Accordingly, FDA would assign the Here, both actions of the product are to Treat Glaucoma. This product is product to CDRH for regulation because independent, and neither appears to be identical to the product described in the device component provides the most subordinate to the other. example c. in all material respects. The important therapeutic action of the Because it is not possible to determine RFD was filed after the designation of product. It is unnecessary to proceed to which mode of action provides the the product in example c. Since it is not the assignment algorithm because it is greatest contribution to the overall possible to determine which mode of possible to determine which mode of therapeutic effects of the combination action provides the greatest contribution action provides the most important product, it is necessary to apply the to the overall therapeutic effects of the therapeutic action of this particular assignment algorithm. combination product, we would apply combination product. Assignment Algorithm: the assignment algorithm. This product f. Chemotherapeutic drug and • Is there an agency component that would be assigned to CDER under the monoclonal antibody for targeted cancer regulates other combination products first criterion of the assignment treatment. The monoclonal antibody is that present similar questions of safety algorithm, since the product described intended to improve the drug’s and effectiveness with regard to the in example c. presents similar questions effectiveness by directly targeting the combination product as a whole? of safety and effectiveness with respect drug to receptors on cancer tumor cells. CDRH regulates devices intended to to the combination product as a whole • PMOA Analysis—Which Mode of correct vision. CDER regulates drugs and is already assigned to CDER. Action Provides the Most Important intended to treat glaucoma. In this Additional Examples-These Therapeutic Action of the Combination hypothetical example, no combination hypothetical examples further illustrate Product? product intended to treat these different the designation process. In this hypothetical case, the product conditions simultaneously has yet been e. Spinal fusion device coated with a has two modes of action. One action is submitted to the agency for review. therapeutic protein intended to treat the chemotherapeutic drug component’s Though both CDER and CDRH regulate degenerative disc disease. A spinal action to treat cancer. Another action is products that raise similar safety and fusion cage soaked in a solution of a the monoclonal antibody’s (biological
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49858 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
product) action to target the drug to necessary shape, the creation of a effectiveness questions with regard to receptors on cancer tumor cells, thereby functioning organ is primarily the product as a whole. delivering the drug directly to the tumor dependent upon the role of the cells to Because there is no agency site. provide the tissue organization and component that regulates products that Assignment of Lead Agency Component: muscular layer needed to function like present similar safety and effectiveness CDER the native organ. Accordingly, FDA questions with regard to the product as The product’s PMOA is attributable to would assign the product to CBER for a whole, it is necessary to apply the the drug component’s cytotoxic action regulation because the biological second criterion of the hierarchy. on cancer cells, while the biological product component provides the most • Which Agency Component Has the product component’s action to target the important therapeutic action of the Most Expertise Related to the Most drug to the receptors on the cancer cells product. It is unnecessary to proceed to Significant Safety and Effectiveness enhances the efficacy of the drug. the assignment algorithm because it is Questions Presented by the Combination Accordingly, FDA would assign the possible to determine which mode of Product? product to CDER for regulation because action provides the most important Assignment of Lead Agency Component: the drug component provides the most therapeutic action of this particular CBER important therapeutic action of the combination product. Because there is no agency product. It is unnecessary to proceed to h. Menstrual tampon impregnated component that regulates combination the assignment algorithm because it is with genetically modified bacteria. The products that present similar safety and possible to determine which mode of hypothetical product is intended for use effectiveness issues with regard to the action provides the most important throughout menstruation both in the product as a whole, the agency would therapeutic action of this particular collection of menstrual fluid and to treat consider which agency component has combination product. Note that in June and/or prevent recurrence of bacterial the most expertise related to the most 2003, FDA transferred to CDER the vaginosis. significant safety and effectiveness regulation of certain therapeutic • PMOA Analysis—Which Mode of questions presented by the product. In biological products, including Action Provides the Most Important this case, the menstrual tampon monoclonal antibodies, which had been Therapeutic Action of the Combination component presents generally routine regulated by CBER. Although CDER now Product? safety and effectiveness questions, has regulatory responsibility over both In this case, the product has two similar to those of other menstrual the chemotherapeutic drug and modes of action. One action of the tampons. In contrast, the biological monoclonal antibody described in this product is the action of the biological product component raises more hypothetical example, this example is product component to act upon the significant safety and effectiveness provided for illustrative purposes. For vaginal mucus membrane to produce questions, such as those related to further information about the drug and antimicrobial factors that will control bacterial strain selection and dose; biological product consolidation, see the opportunistic pathogens. Another action bacterial purity, potency and metabolic Federal Register of June 26, 2003 (68 FR of the product, like other menstrual activity, including the impact of genetic 38067), and the OCP website at http:// tampons, is the device component’s modifications; bacterial adherence www.fda.gov/oc/combination/ action to collect menstrual fluid. Here, potential, microbial strain interactions, transfer.html. both actions of the product are g. Scaffold seeded with autologous independent, and neither appears to be and constitutive production of ancillary cells for organ replacement. The subordinate to the other. antimicrobial substances. Based on the hypothetical product has the shape of Because it is not possible to determine application of this criterion, this the target organ, and the autologous which mode of action provides the product would be assigned to CBER cells are intended to allow the product greatest contribution to the overall because CBER has the most expertise to ultimately function like the target therapeutic effects of the combination related to these issues. organ in the patient. product, it is necessary to apply the i. Interferon and Ribavirin PMOA Analysis—Which Mode of assignment algorithm. Combination Therapy. The product is Action Provides the Most Important Assignment Algorithm: intended for use in the treatment of Therapeutic Action of the Combination • Is There an Agency Component chronic hepatitis C. Interferon is Product? That Regulates Other Combination approved under the licensing provisions In this case, the product has two Products That Present Similar of the Public Health Service Act as a modes of action. One action of the Questions of Safety and Effectiveness stand-alone product for treatment of product is the action of the biological With Regard to the Combination chronic hepatitis C. Clinical studies product component to help form new Product as a Whole? show that ribavirin when used alone to tissue that will ultimately function like CDRH regulates tampons; CBER treat chronic hepatitis C can improve the native organ. Another action of the regulates bacterial products and liver function, but most patients relapse product is the device component’s genetically modified cells. In this with treatment of ribavirin alone. action to provide a scaffold on which hypothetical example, no combination However, data show that ribavirin, the new organ tissue will form. product intended both to collect when used in conjunction with Assignment of Lead Agency Component: menstrual fluid and to treat and/or interferon, produces a more efficacious CBER prevent recurrence of bacterial vaginosis response than when interferon is used The product’s PMOA is attributable to through the actions of a genetically alone to treat chronic hepatitis C. The the biological product component’s modified organism has previously been drug and biological product components action to help form new organ tissue reviewed by the agency. Though both may be copackaged or are provided that will ultimately function like the CDRH and CBER regulate products that separately but cross-labeled for use native organ. The device component’s raise similar safety and effectiveness together. action to provide a scaffold upon which questions with regard to the constituent • PMOA Analysis—Which Mode of the new tissue will form is secondary. parts of the product, neither agency Action Provides the Most Important Though the scaffold is necessary to component regulates combination Therapeutic Action of the Combination create the new tissue and provide the products that present similar safety and Product?
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49859
In this case, the product has two hypothetical example, the PMOA was products that present similar safety and modes of action. One action of the attributable to the device component. effectiveness issues with regard to the product is the action of the biological However, we note such a product used product as a whole, the agency would product component to treat chronic for another indication, or with another consider which agency component has hepatitis C, which produces a dose- drug, could have a drug PMOA the most expertise related to the most dependent decline in hepatitic C virus depending on the relative effectiveness significant safety and effectiveness ribonucleic acid (RNA) titers. Another of the drug and device components in questions presented by the product. action of the product is the ribavirin providing the most important Although important safety and tablet’s action to enhance the efficacy of therapeutic action for the new use. effectiveness questions are presented by the biological product. k. Vertebroplasty Implant With this new route of administration of an Assignment of Lead Agency Component: Extended-Release Analgesic. This analgesic and its extended release from CDER hypothetical product is intended to the device, and would need to be The product’s PMOA is attributable to provide spinal stabilization in patients addressed, in this hypothetical example, the biological product component’s with spinal bone metastases who also the most significant safety and function, while the drug component require palliative relief of pain. effectiveness questions associated with works to enhance its efficacy. Note that • PMOA Analysis—Which Mode of the combination product as a whole are interferons are now reviewed in CDER Action Provides the Most Important related to the mechanical strength, wear, following the transfer of therapeutic Therapeutic Action of the Combination and clinical performance of the biological products to CDER in 2003. Product? vertebroplasty implant. Based on the CDER is now the agency component One action of the product is the application of this criterion in the responsible for review of such biological device action, to stabilize the fractured algorithm, this product would be products (see example e. in this section spinal vertebral body bone. Another assigned to CDRH because CDRH has of the document). action of the product is the drug action, the most expertise related to these j. Implantable device with local to provide for extended analgesic issues. CDRH would consult or chemotherapeutic drug. Embolization delivery as an alternative to oral collaborate with CDER on the safety and device coated with a chemotherapeutic medication in patients expected to effectiveness issues raised by the agent intended to treat continue to require long-term pain analgesic component. hypervascularized tumors. management despite the stabilization • PMOA Analysis—Which Mode of implant. In this hypothetical example, Miscellaneous Comments Action Provides the Most Important both actions of the product are (Comment 35) Several comments Therapeutic Action of the Combination independent, and neither is clearly asked that FDA post precedents on the Product? subordinate to the other. Because it is Web, so that stakeholders could better In this case, the product has two not possible to determine which mode understand the process FDA used when modes of action. One action is the of action provides the greatest making jurisdictional determinations for device component’s action to physically contribution to the overall therapeutic combination products submitted to FDA occlude the tumor’s blood supply. effects of the combination product, it is prior to implementation of this final Another action is the drug component’s necessary to apply the assignment rule. action as it elutes from the device to the algorithm. (Response) FDA has complied with tumor where it has a cytotoxic effect. Is there an agency component that these requests and has published a list The embolization device is a permanent regulates other combination products of capsular descriptions of selected implant, while the drug component is a that present similar questions of safety previous jurisdictional determinations, short-term acting chemotherapeutic. and effectiveness with regard to the and is working to publish additional Assignment of Lead Agency Component: combination product as a whole? such descriptions. They are available on CDRH CDRH regulates vertebroplasty OCP’s Web site at: http://www.fda.gov/ In this hypothetical example, the implants. CDER regulates analgesic drug oc/combination/determinations.html. product’s PMOA is attributable to the products. In this hypothetical example, (Comment 36) A few comments device component’s role in the physical no product combining a vertebroplasty suggested that FDA issue various occlusion of the blood supply to the implant and an extended-release guidances on PMOA, either before tumor site through embolization, while analgesic has yet been submitted to the issuance of the final rule, concurrently the drug component plays a subordinate agency for review, therefore neither with issuance of the final rule, or after role in causing apoptosis in any agency component regulates issuance of the final rule. remaining proliferating tumor cells. In combination products that present (Response) FDA believes that it has this hypothetical example, data indicate similar safety and effectiveness provided sufficient explanation and that the effectiveness of the questions with regard to the product as examples, both in the preamble to the embolization device alone for the stated a whole. Because there is no agency proposed and final PMOA rules and on indication is much greater than the component that regulates products that the PMOA analysis codified here, to effectiveness of the drug component present similar safety and effectiveness render additional guidance unnecessary when delivered directly to the tumor questions with regard to the product as at this time. Nonetheless, FDA will site without use of the embolization a whole, it is necessary to apply the reconsider if implementation of this rule agent. Accordingly, FDA would assign second criterion of the algorithm. gives rise to a need for development of the product to CDRH for regulation Which agency component has the a guidance on this topic. because the device component provides most expertise related to the most (Comment 37) One comment the most important therapeutic action of significant safety and effectiveness suggested that FDA repropose the rule the product. It is unnecessary to proceed questions presented by the combination after FDA issued a guidance. to the assignment algorithm because it product? (Response) FDA declines to repropose is possible to determine which mode of Assignment of Lead Agency Component: the rule. First, the majority of comments action provides the most important CDRH were supportive of the rule in whole or therapeutic action of this particular Because there is no agency in part, and only two minor changes combination product. In this component that regulates combination have been made to the codified
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49860 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
language. Second, the majority of before moving such a product to another VIII. Analysis of Impacts stakeholders that commented in public agency component. A. Introduction meetings held prior to issuance of the proposal stressed to FDA the need to IV. Legal Authority FDA has examined the impacts of the final rule under Executive Order 12866, define PMOA and MOA in a timely The agency derives its authority to manner. We have done so here in a the Regulatory Flexibility Act (5 U.S.C. issue the regulations found in part 3 601–612), and the Unfunded Mandates manner that, as one comment stated, from 21 U.S.C. 321, 351, 353, 355, 360, ‘‘faithfully implements the statute.’’ Reform Act of 1995 (Public Law 104–4, 360c–360f, 360h–360j, 360gg–360ss, 109 Stat. 48). Executive Order 12866 (Comment 38) One comment 360bbb–2, 371(a), 379e, 381, 394; 42 suggested that FDA withdraw the rule directs agencies to assess all costs and U.S.C. 216, 262, and 264 as stated in the benefits of available regulatory because it would hinder the assignment Code of Federal Regulations. Congress process and because the algorithm is not alternatives and, when regulation is expressly directed FDA to assign necessary, to select regulatory set forth in the statute. The comment combination products to the appropriate was primarily concerned that the approaches that maximize net benefits agency component for regulation based (including potential economic, criteria used in the algorithm did not on the agency’s assessment of PMOA as adequately explain how FDA would environmental, public health and safety, set forth in section 503(g) of the act. determine the most significant as well and other advantages; distributive Under section 701 of the act (21 U.S.C. as similar safety and effectiveness impacts; and equity). The final rule is 371) and for the efficient enforcement of questions. not a significant regulatory action as the act, FDA has the authority to define defined by the Executive order. (Response) FDA believes that it has and codify ‘‘mode of action’’ and PMOA The Regulatory Flexibility Act adequately addressed how it will and to issue the assignment algorithm. requires agencies to analyze regulatory determine these issues by providing in options that would minimize any this preamble numerous examples as V. Environmental Impact significant impact of a rule on small well as examples of factors FDA entities. No further analysis is required considers when making these FDA has determined under 21 CFR 25.30(a) and (k), and 25.32(g) that this under the Regulatory Flexibility Act determinations. Additionally, we have because the agency has determined that published on the OCP Web site an action is of a type that does not individually or cumulatively have a these final rule amendments have no extensive list of capsular descriptions of compliance costs and will not have a significant effect on the human actual assignment decisions. The agency significant impact on a substantial environment. Therefore, neither an believes the issuance of this rule will number of small entities. Therefore, the environmental assessment nor an not hinder the assignment process but agency certifies the final rule will not environmental impact statement is rather improve it. FDA declines to have a significant economic impact on required. withdraw this rule for the reasons stated a substantial number of small entities. in comment 38 of this document. VI. Paperwork Reduction Act of 1995 Section 202(a) of the Unfunded Furthermore, FDA’s experience in Mandates Reform Act of 1995 requires evaluating combination products has FDA concludes that the changes to the that agencies prepare a written shown that for a small subset of regulations on combination products statement, which includes an products, the most important finalized in this document are not assessment of anticipated costs and therapeutic action is not determinable subject to review by the Office of benefits, before proposing ‘‘any rule that with reasonable certainty, even by the Management and Budget (OMB) because includes any Federal mandate that may product’s developer. Therefore, FDA they do not constitute a ‘‘collection of result in an expenditure by State, local, needs a mechanism to ensure that these information’’ under the Paperwork and tribal governments, in the aggregate, types of products are assigned with Reduction Act of 1995 (44 U.S.C. 3501– or by the private sector, of $100 million consistency, transparency, and 3520). The information collected under or more (adjusted annually for inflation) predictability to an appropriate agency part 3 is currently approved under OMB in any one year.’’ The current threshold component. Out of necessity, FDA control number 0910–0523. This after adjustment for inflation is $115 established the algorithm to accomplish proposal does not constitute an million, using the most current (2003) these goals. additional paperwork burden. implicit price deflator for the Gross Implementation Domestic Product. FDA does not expect VII. Federalism this final rule to result in any 1-year (Comment 39) Several comments expenditure that would meet or exceed FDA has analyzed this final rule in asked FDA to clarify whether the rule this amount. would affect prior RFD determinations. accordance with the principles set forth One comment also asked that FDA in Executive Order 13132. FDA has B. The Rationale Behind This Final Rule clarify whether the final rule is intended determined that the proposed rule does The purpose of the final rule is to change prior jurisdictional decisions not contain policies that have twofold: (1) To codify the definition of made outside the RFD process. substantial direct effects on the States, PMOA, a criterion the agency has used (Response) The rule is prospective in on the relationship between the for more than a decade when assigning nature and will apply only to National Government and the States, or combination products to agency assignments FDA makes 90 days after on the distribution of power and components for regulatory oversight; the rule is published in the Federal responsibilities among the various and (2) to simplify the designation Register. This final rule is not intended levels of government. Accordingly, the process by providing a defined to affect RFD determinations made prior agency has concluded that the rule does framework that sponsors may use when to its implementation. For prior not contain policies that have recommending and/or considering the jurisdictional assignments of federalism implications as defined in PMOA and assignment of a combination combination products made outside the the Executive order and, consequently, product. RFD process, FDA would consider the a federalism summary impact statement Indeed, as stated in the proposed rule, facts and principles governing PMOA is not required. many stakeholders have requested that
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49861
the agency issue a rule defining PMOA List of Subjects in 21 CFR Part 3 purposes through chemical action because, without a definition of this Administrative practice and within or on the body of man or other statutory criterion, the assignment procedure, Biologics, Drugs, Medical animals and is not dependent upon process has at times appeared to lack devices. being metabolized for the achievement of its primary intended purposes. transparency. We believe that this final n Therefore, under the Federal Food, (3) A constituent part has a drug mode rule and its preamble address the Drug, and Cosmetic Act, the Public significant concerns stakeholders have of action if it meets the definition of Health Service Act, and under authority drug contained in section 201(g)(1) of expressed regarding the assignment delegated to the Commissioner of Food process, and address the significant the act and it does not have a biological and Drugs, 21 CFR part 3 is amended as product or device mode of action. concerns expressed in the comments to follows: the proposal. Moreover, we have * * * * * incorporated into the codified section of PART 3—PRODUCT JURISDICTION (m) Primary mode of action is the this final rule suggestions provided by single mode of action of a combination n 1. The authority citation for 21 CFR product that provides the most the comments to the proposal regarding part 3 is revised to read as follows: important therapeutic action of the the MOA and PMOA definitions. Authority: 21 U.S.C. 321, 351, 353, 355, combination product. The most The codification of these principles 360, 360c–360f, 360h–360j, 360gg–360ss, important therapeutic action is the will also simplify the designation 360bbb–2, 371(a), 379e, 381, 394; 42 U.S.C. mode of action expected to make the process for sponsors. For years, a 216, 262, 264. greatest contribution to the overall sponsor has been required to determine intended therapeutic effects of the n 2. Section 3.2 is amended by PMOA and make a recommendation of combination product. redesignating paragraph (k) as paragraph lead agency component for regulatory (l), paragraph (l) as paragraph (n), * * * * * oversight of its combination product, paragraph (m) as paragraph (o), n 3. Section 3.4 is amended by without a codified definition of PMOA. paragraph (n) as paragraph (p); and by redesignating paragraph (b) as paragraph The finalization of this rule will allow adding new paragraphs (k) and (m) to (c) and by adding a new paragraph (b) to a sponsor to base its determination of read as follows: read as follows: PMOA and recommendation of lead agency component for regulatory § 3.2 Definitions. § 3.4 Designated agency component. oversight of its product on defined * * * * * * * * * * factors. (k) Mode of action is the means by (b) In some situations, it is not possible to determine, with reasonable As mentioned previously in this final which a product achieves an intended therapeutic effect or action. For certainty, which one mode of action will rule, as well as in the proposed rule, the purposes of this definition, provide a greater contribution than any amendments finalized here will fulfill ‘‘therapeutic’’ action or effect includes other mode of action to the overall the statutory requirement to assign any effect or action of the combination therapeutic effects of the combination products based on their PMOA, and will product intended to diagnose, cure, product. In such a case, the agency will use safety and effectiveness issues as mitigate, treat, or prevent disease, or assign the combination product to the well as consistency with the regulation affect the structure or any function of agency component that regulates other of similar products to guide the the body. When making assignments of combination products that present assignment of products when the agency combination products under this part, similar questions of safety and cannot determine which mode of action the agency will consider three types of effectiveness with regard to the provides the most important therapeutic mode of action: The actions provided by combination product as a whole. When action of a combination product. The a biological product, a device, and a there are no other combination products final rule ensures that like products will drug. Because combination products are that present similar questions of safety be similarly assigned and regulated, and comprised of more than one type of and effectiveness with regard to the it allows new products for which the regulated article (biological product, combination product as a whole, the most important therapeutic action device, or drug), and each constituent agency will assign the combination cannot be determined to be assigned to part contributes a biological product, product to the agency component with the most appropriate agency component device, or drug mode of action, the most expertise related to the most based on the most significant safety and combination products will typically significant safety and effectiveness effectiveness issues they present. In have more than one identifiable mode of questions presented by the combination addition, by providing a more defined action. product. framework for the assignment process, a (1) A constituent part has a biological * * * * * codified definition of PMOA will product mode of action if it acts by n 4. Section 3.7 is amended by revising further MDUFMA’s requirement that the means of a virus, therapeutic serum, paragraph (c)(2)(ix) and (c)(3) to read as agency ensure prompt assignment of toxin, antitoxin, vaccine, blood, blood follows: component or derivative, allergenic combination products. Also, by issuing § 3.7 Request for designation. this final rule, the agency furthers product, or analogous product * * * * * MDUFMA’s requirement that it review applicable to the prevention, treatment, or cure of a disease or condition of (c) * * * practices specific to the assignment of human beings, as described in section (2) * * * combination products, consult with 351(i) of the Public Health Service Act. (ix) Description of all known modes of stakeholders and center directors, and (2) A constituent part has a device action, the sponsor’s identification of make a determination whether to mode of action if it meets the definition the single mode of action that provides modify those practices. of device contained in section 201(h)(1) the most important therapeutic action of The agency believes the final rule will to (h)(3) of the act, it does not have a the product, and the basis for that have no compliance costs and poses no biological product mode of action, and determination. additional burden to industry. it does not achieve its primary intended * * * * *
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49862 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
(3) The sponsor’s recommendation as and Drug Administration, 2098 Gaither RNA System under section 513(f)(2) of to which agency component should Rd., Rockville, MD 20850, 240–276– the act. The manufacturer recommended have primary jurisdiction based on the 0496. that the device be classified into class II. mode of action that provides the most SUPPLEMENTARY INFORMATION: In accordance with 513(f)(2) of the important therapeutic action of the act, FDA reviewed the petition in order combination product. If the sponsor I. What is the Background of this to classify the device under the criteria cannot determine with reasonable Rulemaking? for classification set forth in 513(a)(1) of certainty which mode of action provides In accordance with section 513(f)(1) of the act. Devices are to be classified into the most important therapeutic action of the Federal Food, Drug, and Cosmetic class II if general controls, by the combination product, the sponsor’s Act (the act) (21 U.S.C. 360c(f)(1)), themselves, are insufficient to provide recommendation must be based on the devices that were not in commercial reasonable assurance of safety and assignment algorithm set forth in distribution before May 28, 1976, the effectiveness, but there is sufficient information to establish special controls § 3.4(b) and an assessment of the date of enactment of the Medical Device to provide reasonable assurance of the assignment of other combination Amendments of 1976 (the amendments), safety and effectiveness of the device for products the sponsor wishes FDA to generally referred to as postamendments its intended use. After review of the consider during the assignment of its devices, are classified automatically by information submitted in the petition, combination product. statute into class III without any FDA FDA determined that the PAXgeneTM * * * * * rulemaking process. These devices Blood RNA System can be classified remain in class III and require Dated: August 9, 2005. into class II with the establishment of premarket approval, unless and until Jeffrey Shuren, special controls. FDA believes these the device is classified or reclassified Assistant Commissioner for Policy. special controls will provide reasonable into class I or II, or FDA issues an order [FR Doc. 05–16527 Filed 8–24–05; 8:45 am] assurance of the safety and effectiveness finding the device to be substantially BILLING CODE 4160–01–S of the device. equivalent, in accordance with section The device is assigned the generic 513(i) of the act, to a predicate device name RNA Preanalytical Systems and it DEPARTMENT OF HEALTH AND that does not require premarket is identified as a device intended to HUMAN SERVICES approval. collect, store, and transport patient The agency determines whether new specimens, and stabilize intracellular Food and Drug Administration devices are substantially equivalent to RNA from the specimens, for previous marketed devices by means of subsequent isolation and purification of 21 CFR Part 866 premarket notification procedures in the intracellular RNA for reverse section 510(k) of the act (21 U.S.C. [Docket No. 2005N–0263] transcriptase polymerase chain reaction 360(k)) and 21 CFR part 807 of FDA’s (RT–PCR) used in in vitro molecular Medical Devices; Immunology and regulations. diagnostic testing. The device may Microbiology Devices; Classification of Section 513(f)(2) of the act provides consist of sample collection devices, Ribonucleic Acid Preanalytical that any person who submits a nucleic acid isolation and purification Systems premarket notification under section reagents, and processing reagents/ 510(k) of the act for a device that has not equipment (tubes, columns, etc.). It also AGENCY: Food and Drug Administration, previously been classified may, within may contain instruments for automation HHS. 30 days after receiving an order of the nucleic acid isolation and ACTION: Final rule. classifying the device in class III under purification steps. section 513(f)(1) of the act, request FDA FDA has identified the following risks SUMMARY: The Food and Drug to classify the device under the criteria to health associated specifically with Administration (FDA) is classifying set forth in section 513(a)(1) of the act. this type of device: (1) Inaccurate results ribonucleic acid (RNA) preanalytical FDA shall, within 60 days of receiving and improper patient management, (2) systems into class II (special controls). such a request, classify the device by delay in diagnosis, and (3) a need for The special control that will apply to written order. This classification shall patient specimen recollection. the device is the guidance document be the initial classification of the device. Failure of the system during specimen entitled ‘‘Class II Special Controls Within 30 days after the issuance of an collection, or during RNA stabilization Guidance Document: RNA Preanalytical order classifying the device, FDA must or purification could yield an RNA Systems (RNA Collection, Stabilization, publish a notice in the Federal Register sample of low quality and quantity. Low and Purification Systems for RT–PCR announcing such classification (section quality RNA, when tested, could result Used in Molecular Diagnostic Testing).’’ 513(f)(2) of the act). in falsely low or falsely high RNA The agency is classifying the device into In accordance with section 513(f)(1) of transcript signal levels leading to class II (special controls) in order to the act, FDA issued an order on inaccurate diagnosis and/or improper provide a reasonable assurance of safety February 18, 2005, classifying the patient management. Low quantity of and effectiveness of the device. PAXgeneTM Blood RNA System into RNA could render the samples unusable Elsewhere in this issue of the Federal class III, because it was not substantially for downstream RT–PCR applications; Register, FDA is announcing the equivalent to a device that was specimens would need to be recollected, availability of a guidance document that introduced or delivered for introduction causing possible delay in diagnosis. In will serve as the special control for the into interstate commerce for commercial addition, depending on specimen type, device. distribution before May 28, 1976, or a recollection could pose additional DATES: This rule is effective September device which was subsequently patient risk (e.g., tissue biopsy). The 26, 2005. The classification was reclassified into class I or class II. On degree of risk varies depending on the effective April 18, 2005. February 28, 2005, PreAnalytiX GmbH, disease or condition/stage being FOR FURTHER INFORMATION CONTACT: Uwe c/o Becton, Dickinson and Co., diagnosed or managed. Results of RNA Scherf, Center for Devices and submitted a petition requesting testing should always be considered in Radiological Health (HFZ–440), Food classification of the PAXgeneTM Blood conjunction with other clinical factors.
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49863
FDA believes that the class II special III. What is the Economic Impact of agency has concluded that the rule does controls guidance document aids in This Rule? not contain policies that have mitigating the potential risks to health FDA has examined the impacts of the federalism implications as defined in by providing recommendations on final rule under Executive Order 12866 the Executive order and, consequently, validation of performance and the Regulatory Flexibility Act (5 a federalism summary impact statement characteristics, including RNA stability, U.S.C. 601–612), and the Unfunded is not required. purity, integrity, yield, repeatability, Mandates Reform Act of 1995 (Public V. How Does This Rule Comply With reproducibility, and suitability for use Law 104–4). Executive Order 12866 the Paperwork Reduction Act of 1995? in RT–PCR assays. The guidance directs agencies to assess all costs and document also provides information on benefits of available regulatory This final rule contains no collections how to meet premarket (510(k)) alternatives and, when regulation is of information. Therefore, clearance by submission requirements for the device. necessary, to select regulatory the Office of Management and Budget FDA believes that the special controls approaches that maximize net benefits under the Paperwork Reduction Act of guidance document, in addition to (including potential economic, 1995 is not required. general controls, addresses the risks to environmental, public health and safety, health identified previously and and other advantages; distributive VI. What References Are on Display? provides reasonable assurance of the impacts; and equity). The agency The following reference has been safety and effectiveness of the device. believes that this final rule is not a placed on display in the Division of Therefore, on April 18, 2005, FDA significant regulatory action under the Dockets Management (HFA–305), Food issued an order to the petitioner Executive order. and Drug Administration, 5630 Fishers classifying the device into class II. FDA The Regulatory Flexibility Act Lane, rm. 1061, Rockville, MD 20852, is codifying this device by adding requires agencies to analyze regulatory and may be seen by interested persons § 866.4070. options that would minimize any between 9 a.m. and 4 p.m., Monday significant impact of a rule on small Following the effective date of this through Friday. entities. Because classification of this final classification rule, any firm device into class II will relieve 1. Petition from PreAnalytiX GmbH, submitting a 510(k) premarket manufacturers of the device of the cost c/o Becton, Dickinson and Co., dated notification for an RNA preanalytical of complying with the premarket February 28, 2005. system will need to address the issues approval requirements of section 515 of List of Subjects in 21 CFR Part 866 covered in the special controls the act (21 U.S.C. 360e), and may permit guidance. However, the firm need only small potential competitors to enter the Medical devices. show that its device meets the marketplace by lowering their costs, the n Therefore, under the Federal Food, recommendations of the guidance, or in agency certifies that the final rule will Drug, and Cosmetic Act and under some other way provides equivalent not have a significant economic impact authority delegated to the Commissioner assurance of safety and effectiveness. on a substantial number of small of Food and Drugs, 21 CFR part 866 is Section 510(m) of the act provides entities. amended as follows: that FDA may exempt a class II device Section 202(a) of the Unfunded from the premarket notification Mandates Reform Act of 1995 requires PART 866—IMMUNOLOGY AND requirements under 510(k) of the act, if that agencies prepare a written MICROBIOLOGY DEVICES FDA determines that premarket statement, which includes an notification is not necessary to provide assessment of anticipated costs and n 1. The authority citation for 21 CFR reasonable assurance of the safety and benefits, before proposing ‘‘any rule that part 866 continues to read as follows: effectiveness of the device. For this type includes any Federal mandate that may Authority: 21 U.S.C. 351, 360, 360c, 360e, of device, FDA has determined that result in the expenditure by State, local, 360j, 371. premarket notification is necessary to and tribal governments, in the aggregate, provide reasonable assurance of the or by the private sector, of $100,000,000 n 2. Section 866.4070 is added to subpart safety and effectiveness of the device or more (adjusted annually for inflation) E to read as follows: and, therefore, the type of device is not in any one year.’’ The current threshold exempt from premarket notification after adjustment for inflation is $115 §866.4070 RNA Preanalytical Systems. requirements. Persons who intend to million, using the most current (2003) Implicit Price Deflator for the Gross (a) Identification. RNA Preanalytical market this type of device must submit Systems are devices intended to collect, to FDA a premarket notification, prior to Domestic Product. FDA does not expect this final rule to result in any 1-year store, and transport patient specimens, marketing the device, which contains and stabilize intracellular RNA from the information about the RNA expenditure that would meet or exceed this amount. specimens, for subsequent isolation and Preanalytical Systems they intend to purification of the intracellular RNA for market. IV. Federalism RT–PCR used in in vitro molecular II. What is the Environmental Impact of FDA has analyzed this final rule in diagnostic testing. This Rule? accordance with the principles set forth (b) Classification. Class II (special in Executive Order 13132. FDA has controls). The special control is FDA’s The agency has determined under 21 determined that the rule does not guidance document entitled ‘‘Class II CFR 25.34(b) that this action is of type contain policies that have substantial Special Controls Guidance Document: that does not individually or direct effects on the States, on the RNA Preanalytical Systems (RNA cumulatively have a significant effect on relationship between the National Collection, Stabilization and the human environment. Therefore, Government and the States, or on the Purification System for RT–PCR Used in neither an environmental assessment distribution of power and Molecular Diagnostic Testing).’’ See nor an environmental impact statement responsibilities among the various § 866.1(e) for the availability of this is required. levels of government. Accordingly, the guidance document.
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49864 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Dated: August 9, 2005. dividends arising from one or more C. More Than One Class of Stock— Linda S. Kahan, transactions described in section 304 Proposed § 1.951–1(e)(3)(i) Deputy Director, Center for Devices and that are part of a plan a principal In general, the proposed regulations Radiological Health. purpose of which is the avoidance of allocate subpart F income among [FR Doc. 05–16914 Filed 8–24–05; 8:45 am] Federal income taxation, and (2) a CFC multiple classes of stock by reference to BILLING CODE 4160–01–S with certain cumulative preferred stock the distributions that would be made outstanding that is held by one or more with respect to each class if the CFC’s persons who are not U.S. taxpayers. earnings and profits for the year were DEPARTMENT OF THE TREASURY Summary of Public Comments and distributed on the last day of the CFC’s Explanation of Changes taxable year (the hypothetical Internal Revenue Service distribution). A commentator expressed A. Amounts Determined Under Section concern that the hypothetical- 26 CFR Part 1 956 of the Code distribution rule under the proposed [TD 9222] Section 951(a)(1) requires a United regulations could allocate earnings and States shareholder of a CFC to include profits to preferred stock (including, RIN 1545–BD49 in income the amount determined under e.g., preferred stock with a section 956 with respect to such noncumulative dividend preference) Guidance Under Section 951 for shareholder. The proposed regulations without regard to whether or when Determining Pro Rata Share include a conforming change to replace dividends are or will be paid. The AGENCY: Internal Revenue Service (IRS), increase in earnings invested in United commentator recommended that the Treasury. States property with amount proposed regulations be amended to ACTION: Final regulations. determined under section 956 to reflect provide that dividend rights should not statutory changes made to section 956 of be taken into account if, as of an SUMMARY: This document contains final the Code by the Omnibus Budget appropriate date, the dividends have not regulations under section 951(a) of the Reconciliation Act of 1993, Public Law been paid. Internal Revenue Code (Code) that 103–66 (107 Stat. 312). Commentators The IRS and Treasury Department provide guidance for determining a recommended that the pro rata rules for have considered this comment and have United States shareholder’s pro rata section 956 be addressed in a separate concluded that, if the terms of a class of share of a controlled foreign regulatory project because, after the preferred stock are such that an corporation’s (CFC’s) subpart F income, statutory change to section 956, the obligation to pay a dividend with previously excluded subpart F income section 951 pro rata rules are no longer respect to the stock may or may not withdrawn from investment in less relevant to a United States shareholder’s arise during the CFC’s taxable year, developed countries, and previously inclusion of the amount determined depending on an exercise of discretion excluded subpart F income withdrawn under section 956. by the CFC’s board of directors or a from foreign base company shipping The IRS and Treasury Department similar governing body, then the stock operations. agree with this recommendation and should be considered to have accordingly have deleted all references discretionary distribution rights. In such DATES: Effective Date: These regulations to section 956 under § 1.951–(1)(e). case, the rule of § 1.951–1(e)(3)(ii) are effective August 25, 2005. Provisions of § 1.951–1(a) and (d) that would apply. Therefore, the suggested Applicability Date: For dates of concerned a United States shareholder’s amendment was not adopted. applicability, see § 1.951–1(e)(7). pro rata share of the CFC’s increase in A commentator recommended that, in FOR FURTHER INFORMATION CONTACT: earnings invested in United States the case of mandatorily redeemable Jeffrey L. Vinnik, (202) 622–3840 (not a property have been revised and preferred stock with cumulative toll-free number). removed, respectively, to conform the dividend rights, the regulation should SUPPLEMENTARY INFORMATION: regulations to the relevant post-1993 include an anti-abuse rule to be applied Code provisions. The IRS and Treasury where the amount of earnings and Background Department are considering a separate profits required to be allocated to such On August 6, 2004, the IRS published regulations project regarding the amount stock differs substantially on a present- in the Federal Register a notice of determined under section 956. value basis from the amount expected to proposed rulemaking (REG–129771–04, be distributed on such stock. 2004–36 I.R.B. 453) under section 951 of B. One Class of Stock—Proposed Additionally, a commentator the Code. Written comments were § 1.951–1(e)(2) recommended that an anti-abuse rule received in response to the notice of The proposed regulations state that if could target shareholder-level proposed rulemaking. No public hearing a CFC for a taxable year has only one agreements that are inconsistent with was requested or held on the notice of class of stock outstanding, each United the economic terms of the underlying proposed rulemaking. After States shareholder’s pro rata share of stock. consideration of the comments received, such corporation’s subpart F income for The IRS and Treasury Department the proposed regulations are adopted as the taxable year is determined by agree that it is appropriate to provide a final regulations with the modifications allocating the CFC’s earnings and profits special rule for the allocation of discussed below. This issue of the for such year on a per-share basis. A earnings and profits to certain Federal Register also includes a notice commentator asked that this rule be mandatorily redeemable cumulative of proposed rulemaking (REG–129782– modified to clarify that the relevant preferred stock held by persons who are 05) setting forth special pro rata share earnings and profits are earnings and not U.S. taxpayers. This special rule is rules that apply to (1) a CFC with more profits for such year unreduced by set forth in a notice of proposed than one class of stock which has distributions during the year. rulemaking published in this issue of earnings and profits and subpart F The IRS and Treasury Department the Federal Register (REG–129782–05). income for the taxable year that are agree with the comment and have With respect to the comments attributable to one or more deemed clarified § 1.951–1(e)(2) accordingly. regarding shareholder-level agreements,
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49865
while the proposed regulations are substantially the same even if the subpart F income) accumulated prior to finalized without modification in difference between them is more than the issuance of the preferred stock and respect of that comment, the IRS and de minimis. thus fail to attract an appropriate share Treasury Department may issue of the CFC’s subpart F income. E. Redemptions and Scope of Deemed regulations in the future if needed to Commentators suggested that this could Distributions—Proposed §§ 1.951– address those issues based on 1(e)(3)(ii)(B) and 1.951–1(e)(4) be addressed by allocating to dividend experience following the publication of arrearages only earnings and profits that these regulations. The proposed regulations contain a arise after the issuance of the preferred special rule that provides that no D. Discretionary Power To Allocate stock. amount shall be considered to be The IRS and Treasury Department Earnings to Different Classes of Stock— distributed with respect to a particular have considered these comments and Proposed § 1.951–1(e)(3)(ii)(A) class of stock to the extent that such a believe that such a rule is appropriate. The proposed regulations provide distribution would constitute a The final regulations adopt such a rule. that, where the allocation of the amount distribution in redemption of stock, a of a CFC’s earnings and profits for the distribution in liquidation, or a return of G. Section 958 of the Code taxable year between two or more capital. Commentators suggested that Commentators suggested that a classes of stock depends upon the this rule was too broad and that stock separate project was needed to address exercise of discretion by the board of rights resulting in deemed dividends the relationship between the indirect directors or a similar governing body of under sections 302 or 305 of the Code stock ownership rules and the pro rata the CFC, earnings and profits shall be should not be disregarded in situations share inclusion rules. allocated to classes of shares with that are unlikely to be abusive. The IRS and Treasury Department discretionary distribution rights by The IRS and Treasury Department have considered the comment. The need reference to the relative values of those have considered the comments and have for a separate regulations project of the classes at the time of the hypothetical concluded that no change is required. kind suggested may be considered at a distribution. Commentators suggested The hypothetical distribution mandated later date. that the use of a value test could be by section 951(a) of the Code complex, costly, and time consuming. contemplates a pro rata distribution to H. Effective Date They proposed an alternative facts-and- shareholders with respect to stock The proposed regulations were circumstances test, with the valuation owned on the relevant date, with no proposed to apply for taxable years of a approach being used as a fall back only disposition of the stock or change in CFC beginning on or after January 1, in limited situations. At the same time, stock rights being made at the same 2005. Commentators recommended that the commentators noted that stock with time. Disregarding redemptions, the regulations provide transitional discretionary distribution rights liquidations, or return of capital effective-date guidance to taxpayers that generally does not appear to exist in the distributions for this purpose serves the may need to take into account marketplace (apart from ordinary objectives of these regulations without backward-looking provisions of the common stock). creating undue potential for unfairness Code or regulations regarding the The IRS and Treasury Department or traps for the unwary. A rule that allocation of earnings and profits to have considered these comments and in provided that some deemed dividends stock of a CFC. light of the latter comment do not under sections 302 and 305 of the Code The IRS and Treasury Department believe that a value-based allocation is are disregarded and some are regarded have considered the comment and have likely to be required in many cases. The could be overly complex and difficult to provided a transitional effective date IRS and Treasury Department are aware administer. rule for cases in which the application that valuation is a sophisticated process The term deemed distributions in of these pro rata rules for purposes of but believe that the interests of sound proposed § 1.951–1(e)(4) has been applying a related Code section, such as tax policy and administration are served changed to hypothetical distribution in section 1248 of the Code, would result by requiring the value-based allocation order to conform to the language used in an allocation to the stock of the CFC in those instances covered by these in § 1.951–1(e)(3). of earnings and profits that have already regulations. been allocated to the stock for an earlier F. Dividend Arrearages—Proposed Under the proposed regulations, in year under the prior rules of § 1.951– § 1.951–1(e)(3)(iv) cases where the value of each of two or 1(e). In that case, the prior rules will more classes of stock with discretionary The proposed regulations retained the continue to apply for purposes of distribution rights is substantially the rule in existing regulations with respect applying the related Code section. same, the allocation of earnings and to arrearages in dividends with respect profits to each such class is made as if to classes of preferred stock of a CFC. Special Analyses such classes constituted one class of Specifically, the earnings and profits of It has been determined that this stock. A commentator suggested that the CFC for the taxable year are Treasury decision is not a significant values should be treated as substantially attributable to such arrearage only to the regulatory action as defined in the same for this purpose if they are extent the arrearage exceeds the Executive Order 12866. Therefore, a within a specified percentage of one earnings and profits remaining from regulatory assessment is not required. It another. prior taxable years beginning after has also been determined that section The IRS and Treasury Department December 31, 1962. Commentators 553(b) of the Administrative Procedure have considered the comment and have suggested that this rule can lead to Act (5 U.S.C. chapter 5) does not apply concluded that the existing language is anomalous results, particularly where to these regulations, and because the sufficient for the purposes of the cumulative preferred stock is issued regulations do not impose a collection regulations without the need to adopt a when a CFC has accumulated earnings of information on small entities, the specified percentage range. However, and profits. In such a case, a failure to Regulatory Flexibility Act (5 U.S.C. Example 3 in the regulations dealing pay dividends for some number of chapter 6) does not apply. Pursuant to with this issue has been revised to periods could cause the preferred stock section 7805(f) of the Code, the notice indicate that values may be considered to attract earnings and profits (and thus of proposed rulemaking preceding these
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49866 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
regulations was submitted to the Chief pro rata share determined under determined on the hypothetical Counsel for Advocacy of the Small § 1.952–1(a), § 1.955–1(c), or § 1.955A– distribution date, bears to the total value Business Administration for comment 1(c), respectively. of all shares of all classes of stock with on its impact on small business. (2) One class of stock. If a controlled discretionary distribution rights of such foreign corporation for a taxable year corporation, determined on the Drafting Information has only one class of stock outstanding, hypothetical distribution date. For The principal author of these each United States shareholder’s pro purposes of the preceding sentence, in regulations is Jeffrey Vinnik, Office of rata share of such corporation’s subpart the case where the value of each share Associate Chief Counsel (International). F income or withdrawal for the taxable of two or more classes of stock with However, other personnel from the IRS year under paragraph (e)(1) of this discretionary distribution rights is and Treasury Department participated section shall be determined by substantially the same on the in their development. allocating the controlled foreign hypothetical distribution date, the corporation’s earnings and profits on a allocation of earnings and profits to List of Subjects in 26 CFR Part 1 per share basis. such classes shall be made as if such Income taxes, Reporting and (3) More than one class of stock—(i) classes constituted one class of stock in recordkeeping requirements. In general. Subject to paragraphs which each share has the same rights to (e)(3)(ii) through (e)(3)(v) of this section, Adoption of Amendments to the dividends as any other share. if a controlled foreign corporation for a Regulations (B) Special rule for redemption rights. taxable year has more than one class of For purposes of paragraph (e)(3)(ii)(A) of n Accordingly, 26 CFR part 1 is amended stock outstanding, the amount of such this section, discretionary distribution as follows: corporation’s subpart F income or rights do not include rights to redeem withdrawal for the taxable year taken shares of a class of stock (even if such PART 1—INCOME TAXES into account with respect to any one redemption would be treated as a class of stock for purposes of paragraph n Paragraph 1. The authority citation for distribution of property to which part 1 continues to read, in part, as (e)(1) of this section shall be that section 301 applies pursuant to section amount which bears the same ratio to follows: 302(d)). the total of such subpart F income or (iii) Special allocation rule for stock Authority: 26 U.S.C. 7805 * * * withdrawal for such year as the earnings with mixed distribution rights. For n Par. 2. Section 1.951–1 is amended as and profits which would be distributed purposes of paragraphs (e)(3)(i) and follows: with respect to such class of stock if all (e)(3)(ii) of this section, in the case of a n 1. Revising paragraphs (a)(2)(i) and earnings and profits of such corporation class of stock with both discretionary (a)(2)(iv). for such year (not reduced by actual and non-discretionary distribution n 2. Removing and reserving paragraph distributions during the year) were rights, earnings and profits shall be (d). distributed on the last day of such allocated to the non-discretionary n 3. Revising paragraph (e), and corporation’s taxable year on which distribution rights under paragraph reserving paragraphs (e)(3)(v), (e)(4)(ii) such corporation is a controlled foreign (e)(3)(i) of this section and to the and (e)(6) Example 9. corporation (the hypothetical discretionary distribution rights under The revisions read as follows: distribution date), bear to the total paragraph (e)(3)(ii) of this section. In earnings and profits of such corporation such a case, paragraph (e)(3)(ii) of this § 1.951–1 Amounts included in gross for such taxable year. section will be applied such that the income of United States shareholders. (ii) Discretionary power to allocate value used in the ratio will be the value (a) * * * earnings to different classes of stock— of such class of stock solely attributable (2) * * * (A) In general. Subject to paragraph to the discretionary distribution rights (i) Such shareholder’s pro rata share (e)(3)(iii) of this section, the rules of this of such class of stock. (determined under paragraph (b) of this paragraph apply for purposes of (iv) Dividend arrearages. For purposes section) of the corporation’s subpart F paragraph (e)(1) of this section if the of paragraph (e)(3)(i) of this section, if income (as defined in section 952) for allocation of a controlled foreign an arrearage in dividends for prior such taxable year of the corporation, corporation’s earnings and profits for taxable years exists with respect to a * * * * * the taxable year between two or more class of preferred stock of such (iv) The amount determined under classes of stock depends upon the corporation, the earnings and profits for section 956 with respect to such exercise of discretion by that body of the taxable year shall be attributed to shareholder for such taxable year of the persons which exercises with respect to such arrearage only to the extent such corporation (but only to the extent not such corporation the powers ordinarily arrearage exceeds the earnings and excluded from gross income under exercised by the board of directors of a profits of such corporation remaining section 959(a)(2)). domestic corporation (discretionary from prior taxable years beginning after * * * * * distribution rights). First, the earnings December 31, 1962, or the date on (d) [Reserved]. and profits of the corporation are which such stock was issued, whichever (e) Pro rata share defined—(1) In allocated under paragraph (e)(3)(i) of is later. general. For purposes of paragraphs (b) this section to any class or classes of (v) Earnings and profits attributable to and (c) of this section, a United States stock with non-discretionary certain section 304 transactions. shareholder’s pro rata share of the distribution rights (e.g., preferred stock [Reserved]. controlled foreign corporation’s subpart entitled to a fixed return). Second, the (4) Scope of hypothetical F income, previously excluded subpart amount of earnings and profits allocated distribution—(i) Redemption rights. F income withdrawn from investment in to a class of stock with discretionary Notwithstanding the terms of any class less developed countries, or previously distribution rights shall be that amount of stock of the controlled foreign excluded subpart F income withdrawn which bears the same ratio to the corporation or any agreement or from investment in foreign base remaining earnings and profits of such arrangement with respect thereto, no company shipping operations, corporation for such taxable year as the amount shall be considered to be respectively, for any taxable year is his value of all shares of such class of stock, distributed as part of the hypothetical
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49867
distribution with respect to a particular (e.g., until another class of stock is distributed with respect to Individual B’s class of stock for purposes of paragraph redeemed); preferred shares and the remainder, $38x, (e)(3) of this section to the extent that a (B) A loan agreement entered into by would be distributed with respect to Corp A’s distribution of such amount would a controlled foreign corporation that common shares. Accordingly, under restricts or otherwise affects the ability paragraph (e)(3)(i) of this section, Corp A’s constitute a distribution in redemption pro rata share of FC1’s subpart F income is of stock (even if such redemption would to make distributions on its stock until $38x for taxable year 2005. be treated as a distribution of property certain requirements are satisfied; or Example 3. (i) Facts. The facts are the same to which section 301 applies pursuant (C) An arrangement that conditions as in Example 2, except that the shares to section 302(d)), a distribution in the ability of the controlled foreign owned by Individual B are Class B common liquidation, or a return of capital. corporation to pay dividends to its shares and the shares owned by Corp A are (ii) Certain cumulative preferred shareholders on the financial condition Class A common shares and the board of stock. [Reserved]. of the controlled foreign corporation. directors of FC2 may declare dividends with respect to one class of stock without (5) Restrictions or other limitations on (6) Examples. The application of this section may be illustrated by the declaring dividends with respect to the other distributions—(i) In general. A class of stock. The value of the Class A restriction or other limitation on following examples: common shares on the last day of FC2’s 2005 distributions of earnings and profits by Example 1. (i) Facts. FC1, a controlled taxable year is $680x and the value of the a controlled foreign corporation will not foreign corporation within the meaning of Class B common shares on that date is $300x. be taken into account, for purposes of section 957(a), has outstanding 100 shares of The board of directors of FC2 determines that this section, in determining the amount one class of stock. Corp E, a domestic FC2 will not make any distributions in 2005 corporation and a United States shareholder with respect to the Class A and B common of earnings and profits that shall be of FC1, within the meaning of section 951(b), shares of FC2. allocated to a class of stock of the owns 60 shares. Corp H, a domestic (ii) Analysis. The allocation of FC2’s controlled foreign corporation or the corporation and a United States shareholder earnings and profits between its Class A and amount of the United States of FC1, within the meaning of section 951(b), Class B common shares depends solely on shareholder’s pro rata share of the owns 40 shares. FC1, Corp E, and Corp H the exercise of discretion by the board of controlled foreign corporation’s subpart each use the calendar year as a taxable year. directors of FC2. Therefore, under paragraph F income or withdrawal for the taxable Corp E and Corp H are shareholders of FC1 (e)(3)(ii)(A) of this section, the allocation of year. for its entire 2005 taxable year. For 2005, FC1 earnings and profits between the Class A and (ii) Definition. For purposes of this has $100x of earnings and profits, and Class B common shares will depend on the income of $100x with respect to which value of each class of stock on the last day section, a restriction or other limitation amounts are required to be included in gross of the controlled foreign corporation’s taxable on distributions includes any limitation income of United States shareholders under year. On the last day of FC2’s taxable year that has the effect of limiting the section 951(a). FC1 makes no distributions 2005, the Class A common shares had a value allocation or distribution of earnings during that year. of $9.30x/share and the Class B common and profits by a controlled foreign (ii) Analysis. FC1 has one class of stock. shares had a value of $10x/share. Because corporation to a United States Therefore, under paragraph (e)(2) of this each share of the Class A and Class B shareholder, other than currency or section, FC1’s earnings and profits are common stock of FC2 has substantially the other restrictions or limitations imposed allocated on a per share basis. Accordingly, same value on the last day of FC2’s taxable under the laws of any foreign country as for the taxable year 2005, Corp E’s pro rata year, under paragraph (e)(3)(ii)(A) of this share of FC1’s subpart F income is $60x section, for purposes of allocating the provided in section 964(b). (60/100 x $100x) and Corp H’s pro rata share earnings and profits of FC2, the Class A and (iii) Exception for certain preferred of FC1’s subpart F income is $40x (40/100 x Class B common shares will be treated as one distributions. The right to receive $100x). class of stock. Accordingly, for FC2’s taxable periodically a fixed amount (whether Example 2. (i) Facts. FC2, a controlled year 2005, the earnings and profits of FC2 are determined by a percentage of par value, foreign corporation within the meaning of allocated $35x (70/100 x $50x) to the Class a reference to a floating coupon rate, a section 957(a), has outstanding 70 shares of A common shares and $15x (30/100 x $50x) stated return expressed in terms of a common stock and 30 shares of 4-percent, to the Class B common shares. For its taxable certain amount of dollars or foreign nonparticipating, voting, preferred stock with year 2005, Corp A’s pro rata share of FC2’s currency, or otherwise) with respect to a par value of $10x per share. The common subpart F income will be $35x. shareholders are entitled to dividends when Example 4. (i) Facts. FC3, a controlled a class of stock the distribution of which declared by the board of directors of FC2. foreign corporation within the meaning of is a condition precedent to a further Corp A, a domestic corporation and a United section 957(a), has outstanding 100 shares of distribution of earnings or profits that States shareholder of FC2, within the Class A common stock, 100 shares of Class year with respect to any class of stock meaning of section 951(b), owns all of the B common stock and 10 shares of 5-percent (not including a distribution in partial common shares. Individual B, a foreign nonparticipating, voting preferred stock with or complete liquidation) is not a individual, owns all of the preferred shares. a par value of $50x per share. The value of restriction or other limitation on the FC2 and Corp A each use the calendar year the Class A shares on the last day of FC3’s distribution of earnings and profits by a as a taxable year. Corp A and Individual B 2005 taxable year is $800x. The value of the controlled foreign corporation under are shareholders of FC2 for its entire 2005 Class B shares on that date is $200x. The taxable year. For 2005, FC2 has $50x of Class A and Class B shareholders each are paragraph (e)(5) of this section. earnings and profits, and income of $50x entitled to dividends when declared by the (iv) Illustrative list of restrictions and with respect to which amounts are required board of directors of FC3, and the board of limitations. Except as provided in to be included in gross income of United directors of FC3 may declare dividends with paragraph (e)(5)(iii) of this section, States shareholders under section 951(a). In respect to one class of stock without restrictions or other limitations on 2005, FC2 distributes as a dividend $12x to declaring dividends with respect to the other distributions include, but are not Individual B with respect to Individual B’s class of stock. Corp D, a domestic corporation limited to— preferred shares. FC2 makes no other and a United States shareholder of FC3, (A) An arrangement that restricts the distributions during that year. within the meaning of section 951(b), owns (ii) Analysis. FC2 has two classes of stock, all of the Class A shares. Corp N, a domestic ability of the controlled foreign and there are no restrictions or other corporation and a United States shareholder corporation to pay dividends on a class limitations on distributions within the of FC3, within the meaning of section 951(b), of shares of the corporation owned by meaning of paragraph (e)(5) of this section. If owns all of the Class B shares. Corp S, a United States shareholders until a the total $50x of earnings were distributed on domestic corporation and a United States condition or conditions are satisfied December 31, 2005, $12x would be shareholder of FC3, within the meaning of
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49868 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
section 951(b), owns all of the preferred included in gross income of United States shareholders until FC6 cumulatively earns shares. FC3, Corp D, Corp N, and Corp S each shareholders under section 951(a). In 2005, $100,000x of income is a restriction or other use the calendar year as a taxable year. Corp FC4’s retained earnings are equal to its limitation, within the meaning of paragraph D, Corp N, and Corp S are shareholders of earnings and profits. FC4 distributes as a (e)(5) of this section, and will be disregarded FC3 for all of 2005. For 2005, FC3 has $100x dividend $20x to Corp E that year with for purposes of calculating Corp M’s pro rata of earnings and profits, and income of $100x respect to Corp E’s preferred shares. The share of subpart F income. The non- with respect to which amounts are required board of directors of FC4 determines that FC4 discretionary distribution rights of the to be included in gross income of United will not make any other distributions during preferred shares are not a restriction or other States shareholders under section 951(a). In that year. limitation within the meaning of paragraph 2005, FC3 distributes as a dividend $25x to (ii) Analysis. The non-discretionary (e)(5) of this section. If the total $50x of Corp S with respect to the preferred shares. distribution rights of the preferred shares are earnings were distributed on December 31, The board of directors of FC3 determines that not a restriction or other limitation within 2005, $8x would be distributed with respect FC3 will make no other distributions during the meaning of paragraph (e)(5) of this to FC7’s preferred shares and the remainder, that year. section. The allocation of FC4’s earnings and $42x, would be distributed with respect to (ii) Analysis. The distribution rights of the profits between its preferred shares and Corp M’s common shares. Accordingly, preferred shares are not a restriction or other common shares depends, in part, on the under paragraph (e)(3)(i) of this section, Corp limitation within the meaning of paragraph exercise of discretion by the board of M’s pro rata share of FC6’s subpart F income (e)(5) of this section. Pursuant to paragraph directors of FC4 because the preferred shares is $42x for taxable year 2005. (e)(3)(i) of this section, if the total $100x of are shares with both discretionary Example 7. (i) Facts. FC8, a controlled earnings were distributed on December 31, distribution rights and non-discretionary foreign corporation within the meaning of 2005, $25x would be distributed with respect distribution rights. Paragraph (e)(3)(i) of this section 957(a), has outstanding 40 shares of to Corp S’s preferred shares and the section is applied first to determine the common stock and 10 shares of 4-percent remainder, $75x would be distributed with allocation of earnings and profits of FC4 to voting preferred stock with a par value of respect to Corp D’s Class A shares and Corp the non-discretionary distribution rights of $50x per share. Pursuant to the terms of the N’s Class B shares. The allocation of that the preferred shares. If the total $100x of preferred stock, FC8 has the right to redeem $75x between its Class A and Class B shares earnings were distributed on December 31, at any time, in whole or in part, the preferred depends solely on the exercise of discretion 2005, $20x would be distributed with respect stock. FP, a foreign corporation, owns all of by the board of directors of FC3. The value to the non-discretionary distribution rights of the preferred shares. Corp G, a domestic of the Class A shares ($8x/share) and the Corp E’s preferred shares. Accordingly, $20x corporation wholly owned by FP and a value of the Class B shares ($2x/share) are would be allocated to such shares under United States shareholder of FC8, within the not substantially the same on the last day of paragraphs (e)(3)(i) and (iii) of this section. meaning of section 951(b), owns all of the FC3’s taxable year 2005. Therefore for FC3’s The remainder, $80x, would be allocated common shares. FC8 and Corp G each use the taxable year 2005, under paragraph under paragraph (e)(3)(ii)(A) and (e)(3)(iii) of calendar year as a taxable year. FP and Corp (e)(3)(ii)(A) of this section, the earnings and this section between the preferred and G are shareholders of FC8 for all of 2005. For profits of FC3 are allocated $60x ($800/ common shareholders by reference to the 2005, FC8 has $100x of earnings and profits, $1,000 x $75x) to the Class A shares and $15x value of the discretionary distribution rights and income of $100x with respect to which ($200/$1,000 x $75x) to the Class B shares. of the preferred shares and the value of the amounts are required to be included in gross For the 2005 taxable year, Corp D’s pro rata common shares. Therefore, the remaining income of United States shareholder under share of FC3’s subpart F income will be $60x, $80x of earnings and profits of FC4 are section 951(a). In 2005, FC8 distributes as a Corp N’s pro rata share of FC3’s subpart F allocated $16x ($100x/$500x x $80x) to the dividend $20x to FP with respect to FP’s income will be $15x and Corp S’s pro rata preferred shares and $64x ($400x/$500x x preferred shares. FC8 makes no other share of FC3’s subpart F income will be $25x. $80) to the common shares. For its taxable distributions during that year. Example 5. (i) Facts. FC4, a controlled year 2005, Corp E’s pro rata share of FC4’s (ii) Analysis. Pursuant to paragraph foreign corporation within the meaning of subpart F income will be $36x ($20x + $16x). (e)(3)(ii)(B) of this section, the redemption section 957(a), has outstanding 40 shares of Example 6. (i) Facts. FC6, a controlled rights of the preferred shares will not be participating, voting, preferred stock and 200 foreign corporation within the meaning of treated as a discretionary distribution right shares of common stock. The owner of a section 957(a), has outstanding 10 shares of under paragraph (e)(3)(ii)(A) of this section. share of preferred stock is entitled to an common stock and 400 shares of 2-percent Further, if FC8 were treated as having annual dividend equal to 0.5-percent of FC4’s nonparticipating, voting, preferred stock with redeemed any preferred shares under retained earnings for the taxable year and a par value of $1x per share. The common paragraph (e)(3)(i) of this section, the also is entitled to additional dividends when shareholders are entitled to dividends when redemption would be treated as a declared by the board of directors of FC4. declared by the board of directors of FC6. distribution to which section 301 applies The common shareholders are entitled to Corp M, a domestic corporation and a United under section 302(d) due to FP’s constructive dividends when declared by the board of States shareholder of FC6, within the ownership of the common shares. However, directors of FC4. The board of directors of meaning of section 951(b), owns all of the pursuant to paragraph (e)(4) of this section, FC4 has discretion to pay dividends to the common shares. FC7, a foreign corporation no amount of earnings and profits would be participating portion of the preferred shares that is not a controlled foreign corporation allocated to the preferred shareholders on the (after the payment of the preference) and the within the meaning of section 957(a), owns hypothetical distribution date, under common shares. The value of the preferred all of the preferred shares. Corp M and FC7 paragraph (e)(3)(i) of this section, as a result shares on the last day of FC4’s 2005 taxable cause the governing documents of FC6 to of FC8’s right to redeem, in whole or in part, year is $600x ($100x of this value is provide that no dividends may be paid to the the preferred shares. FC8’s redemption rights attributable to the discretionary distribution common shareholders until FC6 with respect to the preferred shares cannot rights of these shares) and the value of the cumulatively earns $100,000x of income. FC6 affect the allocation of earnings and profits common shares on that date is $400x. Corp and Corp M each use the calendar year as a between FC8’s shareholders. Therefore, the E, a domestic corporation and United States taxable year. Corp M and FC7 are redemption rights are not restrictions or other shareholder of FC4, within the meaning of shareholders of FC6 for all of 2005. For 2005, limitations within the meaning of paragraph section 951(b), owns all of the preferred FC6 has $50x of earnings and profits, and (e)(5) of this section. Additionally, the non- shares. FC5, a foreign corporation that is not income of $50x with respect to which discretionary distribution rights of the a controlled foreign corporation within the amounts are required to be included in gross preferred shares are not restrictions or other meaning of section 957(a), owns all of the income of United States shareholders under limitations within the meaning of paragraph common shares. FC 4 and Corp E each use section 951(a). In 2005, FC6 distributes as a (e)(5) of this section. Therefore, if the total the calendar year as a taxable year. Corp E dividend $8x to FC7 with respect to FC7’s $100x of earnings were distributed on and FC5 are shareholders of FC4 for all of preferred shares. FC6 makes no other December 31, 2005, $20x would be 2005. For 2005, FC4 has $100x of earnings distributions during that year. distributed with respect to FP’s preferred and profits, and income of $100x with (ii) Analysis. The agreement restricting shares and the remainder, $80x, would be respect to which amounts are required to be FC6’s ability to pay dividends to common distributed with respect to Corp G’s common
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49869
shares. Accordingly, under paragraph (e)(3)(i) the extent necessary to avoid such clarifying changes. The corresponding of this section, Corp G’s pro rata share of duplicative allocation. temporary regulations are removed. FC8’s subpart F income is $80 for taxable * * * * * year 2005. Special Analyses Example 8. (i) Facts. FC9, a controlled Mark E. Matthews, It has been determined that these foreign corporation within the meaning of Deputy Commissioner for Services and regulations are not a significant section 957(a), has outstanding 40 shares of Enforcement. regulatory action as defined in common stock and 60 shares of 6-percent, Approved: August 9, 2005. Executive Order 12866. Therefore, a nonparticipating, nonvoting, preferred stock Eric Solomon, regulatory assessment is not required. It with a par value of $100x per share. Acting Deputy Assistant Secretary of the also has been determined that section Individual J, a United States shareholder of Treasury. 553(b) of the Administrative Procedure FC9, within the meaning of section 951(b), [FR Doc. 05–16611 Filed 8–24–05; 8:45 am] Act (5 U.S.C. chapter 5) does not apply who uses the calendar year as a taxable year, BILLING CODE 4830–01–P to these regulations, and because these owns 30 shares of the common stock, and 15 regulations do not impose a collection shares of the preferred stock during tax year of information on small entities, the 2005. The remaining 10 common shares and DEPARTMENT OF THE TREASURY Regulatory Flexibility Act (5 U.S.C. 45 preferred shares of FC9 are owned by chapter 6) does not apply. Pursuant to Foreign Individual N, a foreign individual. Internal Revenue Service section 7805(f) of the Internal Revenue Individual J and Individual N are Code, the notice of proposed rulemaking shareholders of FC9 for all of 2005. For 26 CFR Parts 40 and 49 preceding these final regulations was taxable year 2005, FC9 has $1,000x of submitted to the Chief Counsel for earnings and profits, and income of $500x [TD 9221] Advocacy of the Small Business with respect to which amounts are required RIN 1545–BB75 Administration for comment on their to be included in gross income of United impact on small business. States shareholders under section 951(a). Collected Excise Taxes; Duties of (ii) Analysis. The non-discretionary Collector Drafting Information distribution rights of the preferred shares are not a restriction or other limitation within AGENCY: Internal Revenue Service (IRS), The principal author of these the meaning of paragraph (e)(5) of this Treasury. regulations is Taylor Cortright of the section. If the total $1,000x of earnings and ACTION: Final regulations and removal of Office of Associate Chief Counsel profits were distributed on December 31, temporary regulations. (Passthroughs and Special Industries). 2005, $360x (0.06 x $100x x 60) would be However, other personnel from the IRS SUMMARY: distributed with respect to FC9’s preferred This document contains final and Treasury Department participated stock and $640x ($1,000x minus $360x) regulations relating to the reporting in their development. obligations of persons that receive would be distributed with respect to its List of Subjects common stock. Accordingly, of the $500x payments for air transportation or with respect to which amounts are required communications services subject to 26 CFR Part 40 to be included in gross income of United excise tax when persons liable for tax refuse to pay the tax. The final Excise taxes, Reporting and States shareholders under section 951(a), recordkeeping requirements. $180x ($360x/$1,000x x $500x) is allocated regulations affect persons that receive to the outstanding preferred stock and $320x payments subject to tax and persons 26 CFR Part 49 liable for those taxes. ($640x/$1,000x x $500x) is allocated to the Excise taxes, Reporting and outstanding common stock. Therefore, under DATES: Effective Date: These regulations recordkeeping requirements, Telephone, paragraph (e)(3)(i) of this section, Individual are effective August 25, 2005. Transportation. J’s pro rata share of such amounts for 2005 Applicability Date: For dates of is $285x [($180x x 15/60)+($320x x 30/40)]. applicability, see §§ 40.6302(c)–3(g) and Adoption of Amendments to the Example 9. [Reserved]. 49.4291–1. Regulations FOR FURTHER INFORMATION CONTACT: (7) Effective dates. This paragraph (e) n Accordingly, 26 CFR parts 40 and 49 Taylor Cortright, (202) 622–3130 (not a are amended as follows: applies for taxable years of a controlled toll-free number). foreign corporation beginning on or after SUPPLEMENTARY INFORMATION: PART 40—EXCISE TAX PROCEDURAL January 1, 2005. However, if the REGULATIONS application of this paragraph (e) for Background purposes of a related Internal Revenue This document amends the Excise n Paragraph 1. The authority citation for Code provision, such as section 1248, Tax Procedural Regulations (26 CFR part 40 is amended by removing the results in an allocation to the stock of part 40) and the Facilities and Services entry for § 40.6302(c)–3T to read, in part, such corporation of earnings and profits Excise Tax Regulations (26 CFR part 49). as follows: that have already been allocated to the On August 10, 2004, a temporary Authority: 26 U.S.C. 7805 * * * stock for an earlier year under the prior regulation (TD 9149, 60 FR 48393) was rules of § 1.951–1(e), as contained in 26 published in the Federal Register. A n Par. 2. Section 40.6302(c)–3 is CFR part 1 revised April 1, 2005, then notice of proposed rulemaking (REG– amended as follows: the prior rules will continue to apply to 163909–02, 69 FR 48432) cross- n 1. Paragraph (b)(2)(ii) is revised. referencing the temporary regulations n 2. Paragraph (g) is amended by was published in the Federal Register removing the language ‘‘October 1, on the same day. A written comment 2001’’ and adding the language ‘‘October was received and no public hearing was 1, 2001, except that paragraph requested or held. After considering the (b)(2)(ii)(B) of this section is applicable comment, the proposed regulations are October 1, 2004’’ in its place. adopted by this Treasury decision with The revision reads as follows:
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49870 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
§ 40.6302(c)–3 Special rules for use of § 49.4291–1T [Removed] Information Act, Privacy Act, and Government depositaries under chapter 33. n Par. 6. Section 49.4291–1T is removed. Government in Sunshine Act. * * * * * n Pursuant to the authority vested in the (b) * * * Mark E. Matthews, Attorney General by 5 U.S.C. 552a and (2) * * * Deputy Commissioner for Services and (ii) Separate account. The account Enforcement. delegated to me by Attorney General Order No. 793–78, amend 28 CFR part 16 required under paragraph (b)(2)(i)(A) of Approved: July 20, 2005. as follows: this section (the separate account)— Eric Solomon, (A) Must reflect for each month all Acting Deputy Secretary of the Treasury (Tax PART 16—[AMENDED] items of tax that are included in Policy). amounts billed or tickets sold to [FR Doc. 05–16612 Filed 8–24–05; 8:45 am] Subpart E—Exemption of Records customers during the month; Systems under the Privacy Act (B) May not reflect an item of BILLING CODE 4830–01–P adjustment for any month during a n 1. The authority for part 16 continues quarter if the adjustment results from a to read as follows: DEPARTMENT OF JUSTICE refusal to pay or inability to collect the Authority: 5 U.S.C. 301, 552, 552a, 552b(g), tax and the uncollected tax has not been 28 CFR Part 16 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, reported under § 49.4291–1 of this 534; 31 U.S.C. 3717, 9701. chapter on or before the due date of the [AAG/A Order No. 007–2005] return for that quarter; and n 2. Section 16.133 is added to read as (C) Must reflect for each month items Privacy Act of 1974; Implementation follows: of adjustment (including bad debts and AGENCY: Department of Justice. § 16.133 Exemption of Department of errors) relating to the tax for prior ACTION: Final rule. Justice Regional Data Exchange System months within the period of limitations (RDEX), DOJ–012. on credits or refunds. SUMMARY: The Department of Justice is (a) The Department of Justice Regional * * * * * exempting the Privacy Act system of Data Exchange System (RDEX), DOJ– records entitled, ‘‘Department of Justice § 40.6302(c)–3T [Removed] 012, is exempted from subsections (c)(3) Regional Data Exchange System (RDEX), and (4); (d)(1), (2), (3), and (4); (e)(1), (2), n Par. 3. Section 40.6302(c)–3T is DOJ–012,’’ from subsections (c)(3) and (3), (5), and (8); and (g) of the Privacy removed. (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), Act pursuant to 5 U.S.C. 552a(j)(2). (5), and (8); and (g) of the Privacy Act These exemptions apply only to the PART 49—FACILITIES AND SERVICES pursuant to 5 U.S.C. 552a(j)(2). The EXCISE TAXES extent that information in a record is information in this system of records subject to exemption pursuant to 5 relates to matters of criminal law n Par. 4. The authority citation for part U.S.C. 552a(j)(2). enforcement, and the exemption is 49 continues to read, in part, as follows: (b) This system is exempted from the necessary in order to avoid interference following subsections for the reasons set Authority: 26 U.S.C. 7805 * * * with law enforcement responsibilities forth below: n Par. 5. Section 49.4291–1 is amended and functions and to protect criminal (1) From subsection (c)(3) because as follows: law enforcement information. The making available to a record subject the n 1. The fourth sentence is revised. system of records document was accounting of disclosures of criminal n 2. The fifth sentence is amended by published in the Federal Register on law enforcement records concerning removing the language ‘‘this July 11, 2005 at 70 FR 39790. The him or her could inform that individual information’’ and adding the language proposed rule was published in the of the existence, nature, or scope of an ‘‘this report’’ in its place. Federal Register on July 11, 2005 at investigation, or could otherwise n 3. A new sentence is added at the end 39696. seriously impede law enforcement of the paragraph. DATES: Effective Date: This final rule is efforts. n 4. Paragraphs (a) and (b) are added. effective August 25, 2005. (2) From subsection (c)(4) because this The revisions and addition read as FOR FURTHER INFORMATION CONTACT: system is exempt from subsections follows: Mary E. Cahill, (202) 307–1823. (d)(1), (2), (3), and (4). § 49.4291–1 Persons receiving payment SUPPLEMENTARY INFORMATION: On July (3) From subsection (d)(1) because must collect tax. 11, 2005 at 70 FR 39696 a proposed rule disclosure of criminal law enforcement * * * Applicable October 1, 2004, was published in the Federal Register information could interfere with an this report must be made on or before with an invitation to comment. No investigation, reveal the identity of the report due date. * * * For purposes comments were received. confidential sources, and result in an of this section, the report due date is— unwarranted invasion of the privacy of (a) In the case of a person using the Regulatory Flexibility Act others. alternative method of making deposits This rule relates to individuals rather (4) From subsection (d)(2) because described in § 40.6302(c)–3 of this than small business entities. amendment of the records would chapter, the due date of the return on Nevertheless, pursuant to the interfere with ongoing criminal law which the item of adjustment relating to requirements of the Regulatory enforcement proceedings and impose an the uncollected tax would be reflected Flexibility Act, 5 U.S.C. 601–612, it is impossible administrative burden by if items of adjustment were determined hereby stated that this rule will not have requiring investigations to be without regard to the limitation in a significant economic impact on a continuously reinvestigated. § 40.6302(c)–3 of this chapter; and substantial number of small entities. (5) From subsections (d)(3) and (4) (b) In any other case, the due date of because these subsections are the return on which the tax would have List of Subjects in 28 CFR Part 16 inapplicable to the extent that been reported but for the refusal to pay Administrative Practices and exemption is claimed from subsections or inability to collect. Procedures, Courts, Freedom of (d)(1) and (2).
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49871
(6) From subsection (e)(1) because it ACTION: Final rule. Exploration & Production, Chevron is often impossible to determine in Texaco, the Domestic Petroleum advance if criminal law enforcement SUMMARY: MMS is changing some Council (DPC), EOG Resources, Exxon records contained in this system are existing fees and implementing several Mobil, the Independent Petroleum relevant and necessary, but, in the new fees to offset MMS’s costs of Association of America (IPAA), the interests of effective law enforcement, it performing certain services relating to International Association of Drilling is necessary to retain this information to its minerals programs. Contractors (IADC), the International aid in establishing patterns of activity EFFECTIVE DATE: This regulation is Association of Geophysical Contractors and provide investigative leads. effective as of September 26, 2005. (IAGC), Marathon Oil, NCX Company, (7) From subsection (e)(2) because FOR FURTHER INFORMATION CONTACT: the National Ocean Industries collecting information from the subject Angela Mazzullo, Offshore Minerals Association (NOIA), the Natural Gas individual could serve notice that he or Management (OMM) Budget Office at Supply Association (NGSA), Newfield she is the subject of a criminal law (703) 787–1691. Exploration Company, the Offshore enforcement matter and thereby present SUPPLEMENTARY INFORMATION: Operators Committee (OOC), Shell Exploration & Production Company a serious impediment to law Background enforcement efforts. Further, because of (Shell), Spinnaker Exploration, Success the nature of criminal law enforcement Legal Authority and Policy Guidance: Energy, the U.S. Oil & Gas Association matters, vital information about an The Independent Offices Appropriation (USOGA), Waring & Associates, and individual frequently can be obtained Act of 1952 (IOAA), 31 U.S.C. 9701, is WJP. These respondents raised a only from other persons who are a general law applicable Government- number of important issues that are familiar with the individual and his or wide, that provides authority to MMS to addressed immediately below. her activities and it often is not recover the costs of providing services Issue No. 1: The comment period practicable to rely on information to the non-federal sector. It requires should be extended. provided directly by the individual. implementation through rulemaking. MMS received seven requests to (8) From subsection (e)(3) because There are several policy documents that extend the comment period beyond 30 informing individuals as required by provide guidance on the process of days on the proposed rule. MMS this subsection could reveal the charging applicants for service costs. considers this rule to be fairly existence of a criminal law enforcement These policy documents are found in straightforward and not exceptionally matter and compromise criminal law the Office of Management and Budget complex, and the fees are not significant enforcement efforts. (OMB) Circular A–25, ‘‘User Charges,’’ in terms of potential economic impact. (9) From subsection (e)(5) because it and the Department of the Interior (DOI) Therefore, MMS considers thirty days to is often impossible to determine in Departmental Manual (DM), 330 DM be sufficient time for comment. advance if criminal law enforcement 1.3A and 6.4, ‘‘Cost Recovery’’ and Issue No. 2: The implementation of records contained in this system are ‘‘User Charges.’’ The general policy that the fees in this rule will discourage accurate, relevant, timely, and complete, governs charges for services provided exploration activity on the OCS, but, in the interests of effective law states that a charge ‘‘will be assessed particularly by small businesses. MMS received five comments on this enforcement, it is necessary to retain against each identifiable recipient for issue. MMS disagrees with the this information to aid in establishing special benefits derived from federal comments. The current classification of patterns of activity and obtaining activities beyond those received by the a small business by the Small Business investigative leads. general public’’ (OMB Circular A–25). Administration (SBA) is a company (10) From subsection (e)(8) because The DOI Manual mirrors this policy with fewer than 500 employees. Over 70 serving notice could give persons (330 DM 1.3 A.). Certain activities may percent of companies operating on the sufficient warning to evade criminal law be exempted from these fees under OCS meet that criterion. Most of these enforcement efforts. certain conditions set out at 330 DM companies are financially sound and (11) From subsection (g) to the extent 1.3A and 6.4.4. Cost Recovery Definition: In this payment of cost recovery fees will not that this system is exempt from other rulemaking, cost recovery means affect plans for exploratory drilling. In specific subsections of the Privacy Act. reimbursement to MMS for its costs of addition, the proposed fees represent a Dated: August 19, 2005. performing a service by charging a fee small percentage increase in operating Paul R. Corts, to the identifiable applicant/beneficiary costs when compared to the cost of Assistant Attorney General for of the service. Further guidance is drilling a well. For example, the Administration. provided by Solicitor’s Opinion M– proposed fees range from $150–$10,700 [FR Doc. 05–16866 Filed 8–24–05; 8:45 am] 36987, ‘‘BLM’s Authority to Recover while well drilling costs range from $5 BILLING CODE 4410–FB–P Costs of Mineral Document Processing’’ million–$23 million. (December 5, 1996). The DOI Office of Issue No. 3: The fees being Inspector General issued reports in 1988 implemented are too high. Can more DEPARTMENT OF THE INTERIOR and 1995 addressing BLM’s cost information be provided as to how the recovery responsibilities. fees were calculated? Minerals Management Service MMS received seven comments on Discussion of Comments Received this issue. Because this rule is 30 CFR Parts 250 and 256 MMS published a proposed rule to implementing cost recovery authority, revise some existing fees and implement the fees were set at what it currently RIN 1010–AD16 several new fees in the Federal Register costs MMS to perform these services. Oil, Gas, and Sulphur Operations and on March 15, 2005. The comment The following example provides greater Leasing in the Outer Continental Shelf period for the proposed rule closed on detail of how the costs were calculated. (OCS)—Cost Recovery April 14, 2005. MMS received 23 sets of The Suspension of Operations/ comments on the proposed rulemaking Suspension of Production (SOO/SOP) AGENCY: Minerals Management Service on 14 different issues. Respondents request was broken down into five sub- (MMS), Interior. included: Anadarko, BP, Beacon processes, also shown in the table below
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49872 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
with the associated employee’s grade, time, and labor dollars.
Employee’s grade/ Hours spent Sub-process step on task Labor dollars
Review application...... 13/3 ...... 2 $74 Perform necessary engineering, geological and/or geophysical assessment ...... 13/3, 13/6 ...... 13 490 Attend meetings and discussions (internal and with industry) ...... 14/5, 13/6, 13/3 ...... 6 242 Draft/review/discuss/final decision letter distribution ...... 14/5, 13/3, 5/8 ...... 6 200 Follow-up monitoring of activity schedule deadlines ...... 13/3 ...... 4 149
Subtotal ...... 1,155
The labor dollars for the SOO/SOP minerals. None of these obligations were (2) that is designated by the Administrator request total $1,155. Given that this ever intended to compensate the of the Office of Information and Regulatory example was for the Gulf of Mexico government for administrative costs. Affairs (OIRA) as a significant energy action. Region (GOMR) only, the actual average (c) ‘‘Agency’’ means any authority of the Nor was the relevant mineral leasing United States (U.S.) that is an ‘‘agency’’ benefit rate of 23.26 percent for that law (the Outer Continental Shelf Lands under 44 U.S.C. 3502(1), other than those Region was applied, bringing the cost to Act (OCSLA)), which granted the considered to be independent regulatory $1,424. The benefit rate includes the Secretary the authority to issue leases, agencies, as defined in 44 U.S.C. 3502(5). Federal Government’s share of health enacted as a cost recovery mechanism. Moreover, E.O. 12866 defines a significant insurance, life insurance, retirement, The government’s authority to recover regulatory action: and social security and Medicare. To certain administrative costs of the type (f) ‘‘Significant regulatory action’’ means arrive at the final fee, the bureau-wide involved in this rulemaking is granted any regulatory action that is likely to result in a rule that may: indirect cost rate of 21.5 percent is by a statute (the provision of IOAA) that applied, for a new total of $1,730. As (1) Have an annual effect on the economy predated the OCSLA and predated every of $100 million or more or adversely affect explained in the preamble of the lease issued under the OCSLA. The in a material way; the economy, a sector of proposed rule, the indirect cost rate IOAA is not related to royalty, bonus, or the economy, productivity, competition, jobs, includes costs such as rent, equipment, rental obligations. the environment, public health or safety, or telephone service, etc. This same Issue No. 5: The non-required State, local, or tribal governments or breakdown into sub-processes was done document filing fee is too high, given communities; (2) Create a serious inconsistency or for the other two MMS Regions with a that a single document can index to weighted average applied to establish otherwise interfere with an action taken or multiple leases, therefore multiplying planned by another agency; the fee at $1,800. the cost of a single submission. Since the same process was used to (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan calculate all fees in this rule, and MMS agrees. The calculation of this fee was reexamined and an programs or the rights and obligations of inclusion of all calculations would recipients thereof; or prove too voluminous and unwieldy, inconsistency was found in the cost data collected for this service. The (4) Raise novel legal or policy issues they are not included in this final rule. arising out of legal mandates, the President’s The preamble to the proposed rule commenter is correct and MMS has priorities, or the principles set forth in this provides greater detail on the process deleted the upward fee adjustment from E.O. used to calculate all fees. the rule. The non-required document filing fee will remain at $25 per lease Of the above-quoted thresholds, the Issue No. 4: MMS is already affected. MMS also reviewed all only one that could potentially be at compensated for these services from the remaining cost calculations affecting issue is section (f)(3), and MMS does not collection of bonus bids, rentals, and fees in this rule. believe that this rule meets that royalties. threshold. We note again that compared MMS received seven comments on Issue No 6: MMS states that a to the costs of drilling a well, the fees this issue. When a lease is issued, the ‘‘Statement of Energy Effects’’ is not established in this rule are not working interest is conveyed to the needed, because it does not consider the significant. lessee(s) to whom it is issued. The rule to be a significant energy action; Issue No. 7: The proposed rulemaking government reserves a royalty interest, commenter challenges this statement. may violate the Administrative which is a cost free share of the This rule meets none of the criteria for Procedure Act, because it does not production or the value of the a significant energy action. Executive disclose the basis of MMS’s assessment production. Under the bidding system Order (E.O.) 13211 defines a significant of the costs to be recovered, other than that is characteristic of most of the energy action: to give description of certain generic leases, the lessee pays a bonus to obtain Section 4(b): ‘‘Significant energy action’’ factors purportedly considered. the lease that is the result of competitive means any action by an agency (normally See Issue No. 3 above for a more in- bidding. During the primary term of a published in the Federal Register) that depth description of how the fees were lease and before the lease goes into promulgates or is expected to lead to the calculated. production (in other words, during the promulgation of a final rule or regulation, Issue No. 8: The proposed rule does time the lessor is not receiving any including notices of inquiry, advanced not compare the proposed fees to the benefit from its retained royalty notices of proposed rulemaking, and notices costs of similar services in the private of proposed rulemaking: interest), the lessee must pay annual (1)(i) that is a significant regulatory action sector. rentals. All of these obligations under E.O.12866 or any successor order; and To the knowledge of MMS, none of (royalties, bonus bids, and rentals) (ii) is likely to have a significant adverse these services is offered by the private reflect the value of the lessor’s (i.e., the effect on the supply, distribution, or use of sector. Even if some of these services public’s) property interest in the leased energy; or were offered by the private sector, the
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49873
fees are calculated based on the costs The commenter has misinterpreted specified in the lease instrument itself. incurred by the Federal Government to the fee table. The proposed fee for a That is a policy argument that the provide the service. The costs of what revision to a unit agreement is $760, lessees should direct to Congress, not to other entities may charge for similar while the $10,700 fee is for the original MMS. The commenters’ policy services are not relevant for purposes of voluntary unitization proposal or the preference does not nullify the this rule. expansion of a previously approved Government’s authority (or the lessee’s Issue No. 9: It is only fair that MMS voluntary unit to include additional obligations) under the IOAA when the not accept a processing fee for requests acreage. To prevent further confusion IOAA applies to the particular that are not processed through the the term, ‘‘Unitization Revision and administrative function involved. system, but are rejected early in the Modification’’ has been changed to just Issue No. 14: Industry will be forced evaluation due to submittal of an ‘‘Unitization Revision.’’ to pass along these new costs of doing incomplete request. How will MMS Issue No. 13: Eight commenters (one business to consumers. handle the payment for these denied consolidated letter from eight trade requests, as well as verbal approvals? groups) argue that because neither MMS is fulfilling its obligation to Will there be any refunds? Will credit existing lease terms nor regulations in recover the costs. As previously card payment be accepted? effect at the time of lease issuance discussed, the fees are insignificant in All fees imposed by this rule are non- contain provisions allowing the new relation to the overall costs of industry refundable; however, if a request is cost recovery fees, regulations imposing to explore for and produce crude oil. It deemed not complete, an additional fee such fees that are promulgated after would be inappropriate for MMS to will not be charged for its resubmission. lease issuance ‘‘are not within the scope anticipate or speculate on how the Any verbal approvals that might occur of the contract.’’ The commenter cites industry or the market will respond to must be preceded by payment for the Mobil Exploration and Producing the requirement to pay for fees. service. MMS is currently considering Southeast, Inc. v. United States, 530 Summary of Changes to Proposed Rule the different payment options available, U.S. 604 (2000), as standing for the and will notify lessees of the available proposition that offshore leases are In this final rule, MMS is removing payment options via a Notice to Lessees. subject only to regulations in existence two existing fee adjustments that were The Notice will be issued before the at the time of lease issuance and those proposed. Due to the inconsistency that effective date of the fees in this rule. promulgated thereafter that concern was found in the cost data collected in Issue No. 10: Commenter recommends prevention of waste and conservation of relation to the non-required document that ‘‘Should there be multiple lessees, resources. filing fee adjustment, the adjustment is all designation of operator forms shall The comment fails to acknowledge being removed from this rule. The be collected by one lessee and submitted that the Independent Offices current fee amount of $25 per lease to MMS in a single submittal subject to Appropriation Act, the statute under affected will remain in effect. only one filing fee.’’ MMS agrees with commenter, and whose authority MMS is promulgating MMS is also removing the adjustment that was the original intent. Section this rule, was enacted in 1952, and of the Pipeline Right-of-Way (ROW) § 250.143(d) will be changed to predates the OCS Lands Act and the Grant Application. This fee was incorporate this recommendation. leases issued under the authority of that proposed to be lowered; however, Issue No. 11: Commenter does not act. The comment also misinterprets the further analysis proved that the current agree that the agency’s legal authority Mobil decision. In Mobil, the Supreme fee of $2,350 accurately reflects the cost and policy guidance require new fees or Court addressed a statute enacted by to MMS to provide that service. that the fees are required to fund the Congress years after lease issuance (the Outer Banks Protection Act) whose Further, MMS is adding language to agency’s activities. 30 CFR 250.171 to clarify what has The Solicitor’s Office has determined substantive effect was to prohibit always been implied; to obtain a that the Department of the Interior exploration of a certain class of existing suspension, ‘‘Your request must Manual and OMB Circular A–25 require leases. The Supreme Court held the include:’’ the four factors currently that cost recovery action be taken statute to be a breach of contract on the listed in § 250.171(a)–(d). whenever possible. While the structure part of the United States. The Supreme of MMS’ appropriation does not Court in Mobil did not address the Finally, since the proposed rule was mandate collection of fees, the validity of regulations at all, including published, the bureau has updated its President’s Budget assumes that MMS regulations implementing express indirect cost rate from 15 to 21.5 will collect these fees and has offset its statutory authority already in existence. percent. As required by OMB and appropriated funds accordingly. Further, contrary to the commenters’ Departmental guidance, indirect cost Issue No. 12: A $10,000 fee is assertion, Solicitor’s Opinion M–36987 rates are to be included in the excessive for processing revisions, is not inconsistent with the Mobil calculation of cost recovery fees. No modifications or amendments to unit decision. specific comments addressing the agreements once the original analysis The commenters are arguing indirect cost rate calculation were conducted by MMS for the original unit essentially that they should not be received. Shown below is the revised application has been completed. obligated to pay any costs that are not fee table.
Fee Service amount 30 CFR citation
Change in Designation of Operator ...... $150 § 250.143 Suspensions of Operations/Suspensions of Production (SOO/SOP) Request ...... 1,800 § 250.171 *Pipeline Right-of-Way (ROW) Grant Application ...... 2,350 § 250.1015 Pipeline Conversion of Lease Term to ROW ...... 200 § 250.1015 Pipeline ROW Assignment ...... 170 § 250.1018 500 feet from Lease/Unit Line Production Request ...... 3,300 § 250.1101 Gas Cap Production Request ...... 4,200 § 250.1101
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49874 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Fee Service amount 30 CFR citation
Downhole Commingling Request ...... 4,900 § 250.1106 Voluntary Unitization Proposal or Unit Expansion ...... 10,700 § 250.1303 Unitization Revision ...... 760 § 250.1303 Record Title/Operating Rights (Transfer) ...... 170 § 256.64 *Non-required Document Filing ...... 25 § 256.64 * Indicates no change to current amount.
Procedural Matters 500 employees. Based on these criteria, Unfunded Mandate Reform Act (UMRA) an estimated 70 percent of these of 1995 (E.O. 12866) Regulatory Planning and Review (E.O. companies are considered small. This 12866) This rule will not impose an rule, therefore, affects a substantial unfunded mandate on State, local, or This document is not a significant number of small entities. tribal governments or the private sector rule as determined by the Office of The fees established in the rule will of more than $100 million per year. The Management and Budget (OMB) and is not have a significant economic effect rule will not have a significant or not subject to review under E.O. 12866. on a substantial number of small entities unique effect on State, local, or tribal (1) This rule will not have an annual because the fees are very small governments or the private sector. A effect of $100 million or more on the compared to normal costs of doing statement containing the information economy. It will not adversely affect in business on the OCS. For example, the required by the UMRA (2 U.S.C. 1531 et a material way the economy, fees range from $150 to $10,700 while seq.) is not required. This is because the productivity, competition, jobs, the the cost of drilling a well ranges from $5 rule will not affect State, local, or tribal environment, public health or safety, or million to $23 million. governments, and the effect on the State, local, or tribal governments or Additionally, the fees established in private sector is small. communities. This rule establishes fees the rule will apply to both large and based on cost recovery principles. Based small firms in the same way. Applying Takings Implication Assessment (E.O. on historical filings, MMS projects the for MMS services provides a benefit to 12630) fees will raise revenue by approximately the applicant (both large and small) if With respect to E.O. 12630, the rule $1.65 million annually. the applicant decides to operate in the will not have significant takings (2) This rule will not create a serious OCS. implications. A Takings Implication inconsistency or otherwise interfere Comments are important. The SBA Assessment is not required. The with an action taken or planned by Regulatory Enforcement Ombudsman rulemaking is not a governmental action another agency because the costs and 10 Regional Fairness Boards were capable of interfering with incurred are for specific MMS services established to receive comments from constitutionally protected property and other agencies are not involved in small business about federal agency rights. these aspects of the OCS program. enforcement actions. The Ombudsman (3) This rule will not alter the will annually evaluate the enforcement Federalism (E.O. 13132) budgetary effects of entitlements, grants, activities and rate each agency’s With respect to E.O.13132, the rule user fees, or loan programs or the rights responsiveness to small business. If you will not have federalism implications. It or obligations of their recipients. This wish to comment on the actions of will not substantially and directly affect change will have no effect on the rights MMS, call 1–888–734–3247. You may the relationship between the Federal of the recipients of entitlements, grants, comment to the SBA without fear of and State Governments. To the extent user fees, or loan programs. The fees retaliation. Disciplinary action for that State and local governments have a established by this rule are service fees retaliation by an MMS employee may role in OCS activities, this change will based on cost recovery, and not user include suspension or termination from not affect that role. fees. employment with the DOI. (4) This rule will not raise novel legal Civil Justice Reform (E.O. 12988) or policy issues. Small Business Regulatory Enforcement With respect to E.O. 12988, the Office Fairness Act (SBREFA) of the Solicitor has determined that this Regulatory Flexibility Act (RFA) This is not a major rule under the rule will not unduly burden the judicial MMS certifies that this rule will not SBREFA (5 U.S.C. 804(2)). This rule: system, and meets the requirements of have a significant economic effect on a (a) Does not have an annual effect on Sections 3(a) and 3(b)(2) of the E.O. substantial number of small entities the economy of $100 million or more. under the RFA (5 U.S.C. 601 et seq.). (b) Will not cause a major increase in Paperwork Reduction Act (PRA) of 1995 This change will affect lessees and costs or prices for consumers, This rulemaking relates to 30 CFR operators of leases in the OCS. This individual industries, Federal, State, or part 250, subparts A, J, K, and M, and includes about 130 Federal oil and gas local government agencies, or to 30 CFR part 256, subpart J. The lessees and 115 holders of pipeline geographic regions. rulemaking affects the information rights-of-way. Small lessees that operate (c) Will not have significant adverse collections for these regulations but will under this rule will fall under the Small effects on competition, employment, not change the approved burden hours, Business Administration’s (SBA) North investment, productivity, innovation, or just the associated fees. Therefore, OMB American Industry Classification the ability of U.S.-based enterprises to has determined that there is no change System Codes (NAICS) 211111, Crude compete with foreign-based enterprises. in the information collection and that Petroleum and Natural Gas Extraction Leasing on the U.S. OCS is limited to MMS does not need to make a formal and 213111, Drilling Oil and Gas Wells. residents of the U.S. or companies submission by Form OMB 83-I for this For these NAICS code classifications, a incorporated in the U.S. This rule does rulemaking. When this rule becomes small company is one with fewer than not change that requirement. effective, MMS will submit Form OMB
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49875
83–C to modify the fees in each (2) Is not likely to have a significant recordkeeping requirements, Sulphur collection. adverse effect on the supply, development and production, Sulphur OMB has approved the information distribution, or use of energy, and exploration, Surety bonds. collections for the affected regulations (3) Has not been designated by the 30 CFR Part 256 as 30 CFR part 250, subpart A, OMB Administrator of the OIRA, OMB, as a Control Number 1010–0114 (expiration significant energy action. Administrative practice and 10/31/07); subpart J, 1010–0050 procedure, Continental shelf, Consultation and Coordination with (expiration 1/31/06); subpart K, 1010– Environmental protection, Government Indian Tribal Governments (E.O. 13175) 0041 (expiration 7/31/06); and subpart contracts, Intergovernmental relations, M, 1010–0068 (expiration 8/31/05, In accordance with E.O. 13175, this Minerals Management Service, Oil and currently in renewal); and as 30 CFR rule will not have tribal implications gas exploration, Public lands-mineral part 256, subpart J, 1010–0006, that impose substantial direct resources, Public lands-rights-of-way, (expiration 3/31/07). An agency may not compliance costs on Indian tribal Reporting and recordkeeping conduct or sponsor, and a person is not governments. requirements, Surety bonds. required to respond to, a collection of Dated: August 5, 2005. information unless it displays a Clarity of This Regulation currently valid OMB control number. E.O. 12866 requires each agency to Chad Calvert, write regulations that are easy to Acting Assistant Secretary, Land and National Environmental Policy Act understand. We invite your comments Minerals Management. (NEPA) of 1969 on how to make this proposed rule n For the reasons stated in the preamble, The MMS has determined that this easier to understand, including answers the Minerals Management Service rule is administrative and involves to questions such as the following: (MMS) amends 30 CFR parts 250 and 256 changes addressing fee requirements. (1) Are the requirements in the rule as follows: Therefore, it is categorically excluded clearly stated? from environmental review under (2) Does the rule contain technical PART 250—OIL AND GAS AND section 102(2)(C) of the NEPA, pursuant language or jargon that interferes with SULPHUR OPERATIONS IN THE to 516 DM 2.3A and 516 DM 2, its clarity? OUTER CONTINENTAL SHELF Appendix 1, Item 1.10. (3) Does the format of the rule In addition, the rule does not meet (grouping and order of sections, use of n 1. Revise the authority citation for part any of the 10 criteria for exceptions to headings, paragraphing, etc.) aid or 250 to read as follows: categorical exclusions listed in 516 DM reduce its clarity? Authority: 43 U.S.C. 1331 et seq., 31 U.S.C. 2, Appendix 2. Pursuant to Council on (4) Is the description of the rule in the 9701. Environmental Quality regulations (40 SUPPLEMENTARY INFORMATION section of n CFR 1508.4) and the environmental this preamble helpful in understanding 2. In 30 CFR part 250, subpart A, add policies and procedures of the the rule? What else can we do to make a new § 250.125 and add a new Department of the Interior, the term the rule easier to understand? undesignated center heading preceding ‘‘categorical exclusions’’ means Send a copy of any comments that the new § 250.125 to read as follows: categories of actions which do not concern how we could make this rule Subpart A—General individually or cumulatively have a easier to understand to: Office of significant effect on the human Regulatory Affairs, Department of the * * * * * environment and which have no such Interior, Room 7229, 1849 C Street, Fees effect in procedures adopted by a NW., Washington, DC 20240. You may Federal agency and therefore require also e-mail the comments to this § 250.125 Service fees. neither an environmental assessment address: [email protected]. nor an environmental impact statement. (a) The table in this paragraph (a) List of Subjects shows the fees that you must pay to Effects on the Nation’s Energy Supply MMS for the services listed. The fees (E.O. 13211) 30 CFR Part 250 will be adjusted periodically according E.O. 13211 requires the agency to Continental shelf, Environmental to the Implicit Price Deflator for Gross prepare a Statement of Energy Effects impact statements, Environmental Domestic Product by publication of a when it takes a regulatory action that is protection, Government contracts, document in the Federal Register. If a identified as a significant energy action. Investigations, Mineral royalties, Oil significant adjustment is needed to This rule is not a significant energy and gas development and production, arrive at the new actual cost for any action, and therefore does not require a Oil and gas exploration, Oil and gas reason other than inflation, then a Statement of Energy Effects, because it: reserves, Penalties, Pipelines, Public proposed rule containing the new fees (1) Is not a significant regulatory lands-mineral resources, Public lands- will be published in the Federal action under E.O. 12866, rights-of-way, Reporting and Register for comment. SERVICE FEE TABLE [Effective September 26, 2005]
Fee Service amount 30 CFR citation
(1) Change In Designation of Operator ...... $150 § 250.143 (2) Suspension of Operations/Suspension of Production (SOO/SOP) Request ...... 1,800 § 250.171 (3) Pipeline Right-of-Way (ROW) Grant Application ...... 2,350 § 250.1015 (4) Pipeline Conversion of Lease Term to ROW ...... 200 § 250.1015 (5) Pipeline ROW Assignment ...... 170 § 250.1018 (6) 500 feet from Lease/Unit Line Production Request ...... 3,300 § 250.1101
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49876 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
SERVICE FEE TABLE—Continued [Effective September 26, 2005]
Fee Service amount 30 CFR citation
(7) Gas Cap Production Request ...... 4,200 § 250.1101 (8) Downhole Commingling Request ...... 4,900 § 250.1106 (9) Voluntary Unitization Proposal or Unit Expansion ...... 10,700 § 250.1303 (10) Unitization Revision ...... 760 § 250.1303
(b) Once a fee is paid, it is must address those items required by request for either a 500 feet from lease/ nonrefundable, even if an application or § 250.1007(a) or (b) of this subpart, as unit line production interval or to other request is withdrawn. If your applicable. It must also state the produce from a completion in an application is returned to you as primary purpose for which you will use associated gas cap of a sensitive incomplete, you are not required to the ROW grant. If the ROW has been reservoir under this section. submit a new fee with the amended used before the application is made, the n 8. In § 250.1106, add a new paragraph application. application must state the date such use (d) to read as follows: n 3. In § 250.143, add a new paragraph began, by whom, and the date the (d) to read as follows: applicant obtained control of the § 250.1106 Downhole commingling. improvement. When you file your * * * * * § 250.143 How do I designate an operator? application, you must pay the rental * * * * * required under § 250.1012 of this (d) The applicant must pay the service (d) If you change the designated subpart, as well as the service fees listed fee listed in § 250.125 of this part with operator on your lease, you must pay in § 250.125 of this part for a pipeline its request for downhole commingling. the service fee listed in § 250.125 of this ROW grant to install a new pipeline, or n 9. In § 250.1303, add a new paragraph subpart with your request for a change to convert an existing lease term (d) to read as follows: in designation of operator. Should there pipeline into a ROW pipeline. An be multiple lessees, all designation of application to modify an approved ROW § 250.1303 How do I apply for voluntary operator forms must be collected by one grant must be accompanied by the unitization? lessee and submitted to MMS in a single additional rental required under * * * * * submittal, which is subject to only one § 250.1012 if applicable. You must file (d) You must pay the service fee listed filing fee. a separate application for each ROW. in § 250.125 of this part with your n 4. Revise § 250.171 to read as follows: * * * * * request for a voluntary unitization n 6. In § 250.1018, revise paragraph (b) to proposal or the expansion of a § 250.171 How do I request a suspension? read as follows: previously approved voluntary unit to You must submit your request for a include additional acreage. suspension to the Regional Supervisor, § 250.1018 Assignment of pipeline right-of- Additionally, you must pay the service and MMS must receive the request way grants. fee listed in § 250.125 with your request before the end of the lease term (i.e., end * * * * * for unitization revision. of primary term, end of the 180-day (b) Any application for approval for period following the last leaseholding an assignment, in whole or in part, of PART 256—LEASING OF SULPHUR OR operation, and end of a current any right, title, or interest in a right-of- OIL AND GAS IN THE OUTER suspension). Your request must include: way grant must be accompanied by the CONTINENTAL SHELF (a) The justification for the same showing of qualifications of the suspension including the length of assignees as is required of an applicant n 10. Revise the authority citation for suspension requested; for a ROW in § 250.1015 of this subpart part 256 to read as follows: (b) A reasonable schedule of work and must be supported by a statement Authority: 43 U.S.C. 1331 et seq., 42 U.S.C. leading to the commencement or that the assignee agrees to comply with 6213, 31 U.S.C. 9701. restoration of the suspended activity; and to be bound by the terms and (c) A statement that a well has been conditions of the ROW grant. The n 11. Add a new § 256.63 to read as drilled on the lease and determined to assignee must satisfy the bonding follows: be producible according to §§ 250.115, requirements in § 250.1011 of this § 256. 63 Service fees. 250.116, or 250.1603 (SOP only); subpart. No transfer will be recognized (d) A commitment to production (SOP unless and until it is first approved, in (a) The table in this paragraph (a) only); and writing, by the Regional Supervisor. The shows the fees that you must pay to (e) The service fee listed in § 250.125 assignee must pay the service fee listed MMS for the services listed. The fees of this subpart. in § 250.125 of this part for a pipeline will be adjusted periodically according n 5. In § 250.1015, revise paragraph (a) to ROW assignment request. to the Implicit Price Deflator for Gross Domestic Product by publication of a read as follows: n 7. In § 250.1101, add a new paragraph (f) to read as follows: document in the Federal Register. If a § 250.1015 Applications for pipeline right- significant adjustment is needed to of-way grants. § 250.1101 General requirements and arrive at the new actual cost for any (a) You must submit an original and classification of reservoirs. reason other than inflation, then a three copies of an application for a new * * * * * proposed rule containing the new fees or modified pipeline ROW grant to the (f) The lessee must pay the service fee will be published in the Federal Regional Supervisor. The application listed in § 250.125 of this part with its Register for comment.
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49877
SERVICE FEE TABLE [Effective September 26, 2005]
Fee Service amount 30 CFR citation
(1) Record Title/Operating Rights (Transfer) ...... $170 § 256.64 (2) Non-required Document Filing ...... 25 § 256.64
(b) Once a fee is paid, it is position from 8 a.m. to 11 a.m. on the draw opens on signal for the passage nonrefundable, even if an application or September 25, 2005. This rule allows of river traffic. The Rock Island Arsenal other request is withdrawn. If your the drawbridge be maintained in the requested the drawbridge be permitted application is returned to you as closed-to-navigation position to allow to remain closed-to-navigation from 8 incomplete, you are not required to the annually scheduled running of a a.m. until 11 a.m. on Sunday, submit a new fee with the amended foot race as part of a local community September 25, 2005. application. event. Discussion of Comments and Changes n 12. In § 256.64, revise paragraph (a)(8) DATES: This rule is effective 8 a.m. to 11 to read as follows: a.m., September 25, 2005. The Coast Guard received no ADDRESSES: Comments and material comment letters. No changes will be § 256.64 How to file transfers. received from the public, as well as made to this temporary rule. * * * * * documents indicated in this preamble as Regulatory Evaluation (a) * * * being available in the docket, are part of (8) You must pay the service fee listed This rule is not a ‘‘significant this docket (CGD08–05–025) and are regulatory action’’ under section 3(f) of in § 256.63 of this subpart with your available for inspection or copying at application for approval of any Executive Order 12866, Regulatory room 2.107f in the Robert A. Young Planning and Review, and does not instrument of transfer you are required Federal Building, Eighth Coast Guard to file (Record Title/Operating Rights require an assessment of potential costs District, 1222 Spruce Street, Saint Louis, and benefits under section 6(a)(3) of that (Transfer) Fee). Where multiple MO 63103, between 8 a.m. and 4 p.m., transfers of interest are included in a Order. The Office of Management and Monday through Friday, except Federal Budget has not reviewed it under that single instrument, a separate fee applies holidays. Commander (obr), Eighth to each individual transfer of interest. Order. It is not ‘‘significant’’ under the Coast Guard District, maintains the regulatory policies and procedures of For any document you are not required public docket for this rulemaking. to file by these regulations but which the Department of Homeland Security FOR FURTHER INFORMATION CONTACT: you submit for record purposes per Mr. (DHS). lease affected, you must also pay the Roger K. Wiebusch, Bridge The Coast Guard expects that this service fee listed in § 256.63 (Non- Administrator, (314) 539–3900, temporary change to operation of the required Document Filing Fee). Such extension 2378. Rock Island Railroad & Highway documents may be rejected at the SUPPLEMENTARY INFORMATION: Drawbridge will have minimal economic impact on commercial traffic discretion of the authorized officer. Regulatory History operating on the Upper Mississippi * * * * * On June 2, 2005, we published a River. This temporary change has been [FR Doc. 05–16854 Filed 8–24–05; 8:45 am] notice of proposed rulemaking (NPRM) written in such a manner as to allow for BILLING CODE 4310–MR–P entitled Drawbridge Operation minimal interruption of the Regulation; Mississippi River, Iowa and drawbridge’s regular operation. Illinois in the Federal Register (70 FR DEPARTMENT OF HOMELAND 32276). We received no comment letters Small Entities SECURITY on the proposed rule. No public meeting Under the Regulatory Flexibility Act was requested, and none was held. (5 U.S.C. 601–612), we have considered Coast Guard whether this rule would have a Background and Purpose significant economic impact on a 33 CFR Part 117 On March 29, 2005, the Department of substantial number of small entities. [CGD08–05–025] the Army, Rock Island Arsenal, The term ‘‘small entities’’ comprises requested a temporary change to the small businesses, not-for-profit RIN 1625–AA09 operation of the Rock Island Railroad & organizations that are independently Highway Drawbridge, across the Upper Drawbridge Operation Regulation; owned and operated and are not Mississippi River, Mile 482.9, at Rock Mississippi River, Rock Island, IL dominant in their fields, and Island, Illinois to allow the drawbridge governmental jurisdictions with AGENCY: Coast Guard, DHS. to remain in the closed-to-navigation populations of less than 50,000. ACTION: Temporary rule. position for a three hour period while a The Coast Guard certifies under 5 foot race is held in the city of U.S.C. 605(b) that this rule would not SUMMARY: The Coast Guard is Davenport, IA. The drawbridge has a have a significant economic impact on temporarily changing the regulation vertical clearance of 23.8 feet above a substantial number of small entities. governing the Rock Island Railroad & normal pool in the closed-to-navigation Highway Drawbridge, across the Upper position. Navigation on the waterway Assistance for Small Entities Mississippi River at Mile 482.9, at Rock consists primarily of commercial tows Under section 213(a) of the Small Island, Illinois. The drawbridge need and recreational watercraft that will be Business Regulatory Enforcement not open for river traffic and may minimally impacted by the limited Fairness Act of 1996 (Public Law 104– remain in the closed-to-navigation closure period of three hours. Presently, 121), we want to assist small entities in
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49878 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
understanding the rule so that they Children from Environmental Health (NEPA) (42 U.S.C. 4321–4370f), and could better evaluate its effects on them Risks and Safety Risks. This rule is not have concluded that there are no factors and participate in the rulemaking an economically significant rule and in this case that would limit the use of process. Small businesses may send would not create an environmental risk a categorical exclusion under section comments on the actions of Federal to health or risk to safety that might 2.B.2 of the Instruction. Therefore, this employees who enforce or otherwise disproportionately affect children. rule is categorically excluded, under determine compliance with Federal figure 2–1, paragraph 32(e) of the Indian Tribal Governments regulations to the Small Business and Instruction, from further environmental Agriculture Regulatory Enforcement This rule does not have tribal documentation. Ombudsman and the Regional Small implications under Executive Order List of Subjects in 33 CFR Part 117 Business Regulatory Fairness Boards. 13175, Consultation and Coordination The Ombudsman evaluates these with Indian Tribal Governments, Bridges. because it does not have a substantial actions annually and rates each agency’s Regulations responsiveness to small business. If you direct effect on one or more Indian wish to comment on actions by tribes, on the relationship between the n For the reasons discussed in the employees of the Coast Guard, call 1– Federal Government and Indian tribes, preamble, the Coast Guard amends 33 800–REG–FAIR (1–800–734–3247). or on the distribution of power and CFR part 117 as follows: responsibilities between the Federal Collection of Information Government and Indian tribes. PART 117—DRAWBRIDGE This rule calls for no new collection OPERATION REGULATIONS Energy Effects of information under the Paperwork n 1. The authority citation for part 117 Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under continues to read as follows: 3520). Executive Order 13211, Actions Concerning Regulations That Authority: 33 U.S.C. 499; Department of Federalism Significantly Affect Energy Supply, Homeland Security Delegation No. 0170.1; 33 A rule has implications for federalism Distribution, or Use. We have CFR 1.05–1(g); section 117.255 also issued under Executive Order 13132, determined that it is not a ‘‘significant under the authority of Pub. L. 102–587, 106 Federalism, if it has a substantial direct energy action’’ under that order because Stat. 5039. effect on State or local governments and it is not a ‘‘significant regulatory action’’ n 2. From 8 a.m. to 11 a.m. on September would either preempt State law or under Executive Order 12866 and is not 25, 2005, temporarily add new section impose a substantial direct cost of likely to have a significant adverse effect 117.T394, to read as follows: compliance on them. We have analyzed on the supply, distribution, or use of this rule under that Order and have energy. The Administrator of the Office § 117.T394 Upper Mississippi River. determined that it does not have of Information and Regulatory Affairs The Rock Island Railroad and implications for federalism. has not designated it as a significant Highway Drawbridge, Mile 482.9, at energy action. Therefore, it does not Rock Island, Illinois, need not open for Unfunded Mandates Reform Act require a Statement of Energy Effects river traffic and may be maintained in The Unfunded Mandates Reform Act under Executive Order 13211. the closed-to-navigation position. of 1995 (2 U.S.C. 1531–1538) requires Technical Standards Dated: August 5, 2005. Federal agencies to assess the effects of Kevin L. Marshall, their discretionary regulatory actions. In The National Technology Transfer particular, the Act addresses actions and Advancement Act (NTTAA) (15 Captain, U.S. Coast Guard, Commander, 8th Coast Guard Dist. Acting. that may result in the expenditure by a U.S.C. 272 note) directs agencies to use State, local, or tribal government, in the voluntary consensus standards in their [FR Doc. 05–16923 Filed 8–24–05; 8:45 am] aggregate, or by the private sector of regulatory activities unless the agency BILLING CODE 4910–15–P $100,000,000 or more in any one year. provides Congress, through the Office of Though this rule will not result in such Management and Budget, with an an expenditure, we do discuss the explanation of why using these ENVIRONMENTAL PROTECTION effects of this rule elsewhere in this standards would be inconsistent with AGENCY preamble. applicable law or otherwise impractical. Voluntary consensus standards are 40 CFR Part 52 Taking of Private Property technical standards (e.g., specifications [TN–2000506; FRL–7952–2] This rule will not affect a taking of of materials, performance, design, or private property or otherwise have operation; test methods; sampling Approval and Promulgation of Air taking implications under Executive procedures; and related management Quality Implementation Plans; Knox Order 12630, Government Actions and systems practices) that are developed or County, Tennessee; Revised Format Interference with Constitutionally adopted by voluntary consensus for Materials Being Incorporated by Protected Property Rights. standards bodies. Reference This rule does not use technical Civil Justice Reform standards. Therefore, we did not AGENCY: Environmental Protection This rule meets applicable standards consider the use of voluntary consensus Agency (EPA). in sections 3(a) and 3(b)(2) of Executive standards. ACTION: Final rule; notice of Order 12988, Civil Justice Reform, to Environment administrative change. minimize litigation, eliminate ambiguity, and reduce burden. We have analyzed this rule under SUMMARY: EPA is revising the format of Commandant Instruction M16475.1D, part 52 of title 40 of the Code of Federal Protection of Children which guides the Coast Guard in Regulations (40 CFR part 52) for We have analyzed this rule under complying with the National materials submitted by Knox County Executive Order 13045, Protection of Environmental Policy Act of 1969 that are incorporated by reference (IBR)
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49879
into the Tennessee State should they want to know which Statutory and Executive Order Reviews Implementation Plan (SIP). The measures are contained in a given SIP. A. General Requirements regulations affected by this format The information provided allows EPA change have all been previously and the public to monitor the extent to Under Executive Order 12866 (58 FR submitted by the local agency and which a state implements a SIP to attain 51735, October 4, 1993), this approved by EPA. and maintain the NAAQS and to take administrative action is not a This format revision will affect the enforcement action if necessary. ‘‘significant regulatory action’’ and is ‘‘Identification of Plan’’ sections of 40 therefore not subject to review by the CFR part 52, by adding a table for the The SIP is a living document which Office of Management and Budget. This Knox County portion of the Tennessee the state can revise as necessary to action is not subject to Executive Order SIP. This revision will also affect the address the unique air pollution 13211, ‘‘Actions Concerning Regulations format of the SIP materials that will be problems in the state. Therefore, EPA That Significantly Affect Energy Supply, available for public inspection at the from time to time must take action on Distribution, or Use’’ (66 FR 28355, May Office of Federal Register (OFR), the Air SIP revisions containing new and/or 22, 2001) because it is not a significant and Radiation Docket and Information revised regulations as being part of the regulatory action under Executive Order Center, and the Regional Office. SIP. On May 22, 1997, (62 FR 27968), 12866. Because the agency has made a DATES: This action is effective August EPA revised the procedures for ‘‘good cause’’ finding that this action is 25, 2005. incorporating by reference (IBR), into not subject to notice-and-comment ADDRESSES: SIP materials which are the Code of Federal Regulations, requirements under the APA or any incorporated by reference into 40 CFR materials submitted by states in their other statute as indicated in the part 52 are available for inspection at EPA-approved SIP revisions. These Supplementary Information section the following locations: Environmental changes revised the format for the above, it is not subject to the regulatory Protection Agency, Region 4, 61 Forsyth identification of the SIP in 40 CFR part flexibility provisions of the Regulatory Street, SW., Atlanta, GA 30303; the 52, streamlined the mechanisms for Flexibility Act (5 U.S.C. 601 et seq.), or EPA, Air and Radiation Docket and announcing EPA approval of revisions to sections 202 and 205 of the Unfunded Information Center, Air Docket (Mail to a SIP, and streamlined the Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4). In addition, this action Code 6102T), 1200 Pennsylvania mechanisms for EPA’s updating of the does not significantly or uniquely affect Avenue, NW., Washington, DC 20460, IBR information contained for each SIP small governments or impose a and the National Archives and Records in 40 CFR part 52. Pursuant to these Administration (NARA). For significant intergovernmental mandate, revised procedures, EPA is revising the as described in sections 203 and 204 of information on the availability of this format for the identification of the Knox material at NARA, call 202–741–6030, UMRA. This administrative action also County portion of the Tennessee SIP, does not have a substantial direct effect or go to: http://www.archives.gov/ appearing in 40 CFR part 52. EPA has federal_register/ on one or more Indian tribes, on the _ _ _ previously revised the format for the relationship between the Federal code of federal regulations/ identification of the Tennessee SIP and ibr_locations.html. government and Indian tribes, or on the the Memphis Shelby County portion of distribution of power and FOR FURTHER INFORMATION CONTACT: Ms. the SIP. responsibilities between the Federal Stacy DiFrank at the above Region 4 EPA has determined that today’s government and Indian tribes, as address or at (404) 562–9042. action falls under the ‘‘good cause’’ specified by Executive Order 13175 (65 SUPPLEMENTARY INFORMATION: Each state exemption in section 553(b)(3)(B) of the FR 67249, November 9, 2000), nor will has a SIP containing the control Administrative Procedure Act (APA) it have substantial direct effects on the measures and strategies used to attain which, upon finding ‘‘good cause,’’ states, on the relationship between the and maintain the national ambient air authorizes agencies to dispense with national government and the states, or quality standards (NAAQS). The SIP is public participation, and APA section on the distribution of power and extensive, containing such elements as 553(d)(3) which allows an agency to responsibilities among the various air pollution control regulations, make an action effective immediately levels of government, as specified in emission inventories, monitoring (thereby avoiding the 30-day delayed Executive Order 13132 (64 FR 43255, networks, attainment demonstrations, August 10, 1999). This administrative effective date otherwise provided for in and enforcement mechanisms. action also is not subject to Executive the APA). Today’s administrative action Each state must formally adopt the Order 13045 (62 FR 19885, April 23, simply codifies provisions which are control measures and strategies in the 1997), because it is not economically SIP after the public has had an already in effect as a matter of law in significant. This administrative action opportunity to comment on them and Federal and approved state programs. does not involve technical standards; then submit the SIP to EPA. Once these Under section 553 of the APA, an thus the requirements of section 12(d) of control measures and strategies are agency may find good cause where the National Technology Transfer and approved by EPA, after notice and procedures are ‘‘impractical, Advancement Act of 1995 (15 U.S.C. comment, they are incorporated into the unnecessary, or contrary to the public 272) do not apply. This administrative federally approved SIP and are interest.’’ Public comment for this action also does not involve special identified in 40 CFR part 52 ‘‘Approval administrative action is ‘‘unnecessary’’ consideration of environmental justice and Promulgation of Implementation and ‘‘contrary to the public interest’’ related issues as required by Executive Plans.’’ The full text of the state since the codification only reflects Order 12898 (59 FR 7629, February 16, regulation approved by EPA is not existing law. Immediate notice of this 1994). This administrative action does reproduced in its entirety in 40 CFR part action in the Federal Register benefits not impose an information collection 52, but is ‘‘incorporated by reference.’’ the public by providing the public burden under the Paperwork Reduction This means that EPA has approved a notice of the Knox County portion of the Act of 1995 (44 U.S.C. 3501 et seq.). given state regulation with a specific Tennessee SIP in Tennessee’s EPA’s compliance with these Statutes effective date. The public is referred to ‘‘Identification of Plan’’ portion of the and Executive Orders for the underlying the location of the full text version Federal Register. rules are discussed in previous actions
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49880 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
taken on Knox County, Tennessee’s afforded interested parties the EPA approval date prior to December 1, rules. opportunity to file a petition for judicial 1998 was approved for incorporation by review in the United States Court of reference by the Director of the Federal B. Submission to Congress and the Appeals for the appropriate circuit Register in accordance with 5 U.S.C. Comptroller General within 60 days of such rulemaking 552(a) and 1 CFR part 51. Material is The Congressional Review Act (CRA) action. incorporated as it exists on the date of (5 U.S.C. 801 et seq.), as added by the the approval, and notice of any change List of Subjects in 40 CFR Part 52 Small Business Regulatory Enforcement in the material will be published in the Fairness Act of 1996, generally provides Environmental protection, Air Federal Register. Entries in paragraph that before a rule may take effect, the pollution control, Carbon monoxide, (c) of this section with EPA approval agency promulgating the rule must Incorporation by reference, dates after December 1, 1998, for submit a rule report, which includes a Intergovernmental relations, Lead, Tennessee (Table 1 of the Tennessee copy of the rule, to each House of the Nitrogen dioxide, Ozone, Particulate State Implementation Plan), January 1, Congress and to the Comptroller General matter, Reporting and recordkeeping 2003, for Memphis Shelby County of the United States. Section 808 allows requirements, Sulfur oxides, Volatile (Table 2 of the Memphis Shelby County the issuing agency to make a rule organic compounds. portion of the Tennessee State effective sooner than otherwise Dated: August 4, 2005. Implementation Plan) and March 1, provided by the CRA if the agency 2005, for Knox County (Table 3 of the makes a good cause finding that notice J.I. Palmer, Jr., Regional Administrator, Region 4. Knox County portion of the Tennessee and public procedure is impracticable, State Implementation Plan) and unnecessary or contrary to the public n 40 CFR part 52 is amended as follows: paragraph (d) of this section with an interest. Today’s administrative action PART 52—[AMENDED] EPA approval date after December 1, simply codifies provisions which are 1998 will be incorporated by reference already in effect as a matter of law in n 1. The authority citation for part 52 in the next update to the SIP Federal and approved state programs. 5 continues to read as follows: compilation. U.S.C. 808(2). These announced actions (2) EPA Region 4 certifies that the were effective when EPA approved Authority: 42 U.S.C. 7401 et seq. rules/regulations provided by EPA in them through previous rulemaking Subpart RR—Knox County, Tennessee the SIP compilation at the addresses in actions. EPA will submit a report paragraph (b)(3) of this section are an containing this action and other n 2. Section 52.2220 is amended as exact duplicate of the officially required information to the U.S. Senate, follows: promulgated State rules/regulations the U.S. House of Representatives, and n a. By revising paragraph (b); and which have been approved as part of the the Comptroller General of the United n b. Adding table 3 to paragraph (c) for State implementation plan as of the States prior to publication of this action Knox County, ‘‘EPA Approved Knox dates referenced in paragraph (b)(1). in the Federal Register. This revision to County Regulations’’. Knox County’s portion of Tennessee’s (3) Copies of the materials SIP in the ‘‘Identification of Plan’’ § 52.2220 Identification of plan. incorporated by reference may be section of 40 CFR part 52 is not a ‘‘major * * * * * inspected at the Region 4 EPA Office at rule’’ as defined by 5 U.S.C. 804(2). (b) Incorporation by reference. 61 Forsyth Street, SW., Atlanta, GA (1) Material listed in paragraph (c) of 30303; the EPA, Air and Radiation C. Petitions for Judicial Review this section with an EPA approval date Docket and Information Center, Air EPA has also determined that the prior to December 1, 1998, for Docket (Mail Code 6102T), 1200 provisions of section 307(b)(1) of the Tennessee (Table 1 of the Tennessee Pennsylvania Avenue, NW., Clean Air Act pertaining to petitions for State Implementation Plan), January 1, Washington, DC 20460 and the National judicial review are not applicable to this 2003, for Memphis Shelby County Archives and Records Administration action. This action is simply an (Table 2 of the Memphis Shelby County (NARA). For information on the announcement of prior rulemakings that portion of the Tennessee State availability of this material at NARA, have previously undergone notice and Implementation Plan), and March 1, call 202–741–6030, or go to: http:// comment rulemaking. Prior EPA 2005, for Knox County (Table 3 of the www.archives.gov/federal_register/ rulemaking actions for each individual Knox County portion of the Tennessee code_of_federal_regulations/ component of the Knox County portion State Implementation Plan) and ibr_locations.html. of the Tennessee SIP previously paragraph (d) of this section with an (c) * * * TABLE 3.—EPA APPROVED KNOX COUNTY, REGULATIONS
State effec- State section Title/subject tive date EPA approval date Explanation
12.0 ...... Introduction ...... 06/18/86 08/03/89, 54 FR 31953 13.0 ...... Definitions ...... 12/13/90 02/21/90, 55 FR 5985 14.0 ...... Ambient Air Quality Standards ...... 07/19/89 02/21/90, 55 FR 5985 15.0 ...... Prohibitions of Air Pollution ...... 06/18/86 08/03/89, 54 FR 31953 16.0 ...... Open Burning ...... 01/13/93 11/05/99, 64 FR 60348 17.0 ...... Regulation of Visible Emissions ...... 10/13/93 11/01/94, 59 FR 54523 18.0 ...... Regulation of Non-Process Emissions ...... 10/13/93 11/01/94, 59 FR 54523 19.0 ...... Regulation of Process Emissions ...... 12/11/96 06/08/98, 63 FR 31121 20.0 ...... Regulation of Incinerators ...... 06/18/86 08/03/89, 54 FR 31953 22.0 ...... Regulation of Fugitive Dust and Materials ...... 06/18/86 08/03/89, 54 FR 31953 23.0 ...... Regulation of Hydrocarbon Emissions ...... 06/16/72 10/28/72, 37 FR 23085 24.0 ...... Regulation of Airborne and Windborne Materials ...... 06/18/86 08/03/89, 54 FR 31953 25.0 ...... Permits ...... 06/10/98 11/05/99, 64 FR 60348
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49881
TABLE 3.—EPA APPROVED KNOX COUNTY, REGULATIONS—Continued
State effec- State section Title/subject tive date EPA approval date Explanation
26.0 ...... Monitoring, Recording, and Reporting ...... 06/10/92 04/28/93, 58 FR 25777 27.0 ...... Sampling and Testing Methods ...... 06/10/92 04/28/93, 58 FR 25777 28.0 ...... Variances ...... 06/10/92 04/28/93, 58 FR 25777 29.0 ...... Appeals ...... 05/25/94 12/26/95, 60 FR 66748 30.0 ...... Violations ...... 01/10/96 03/26/97, 62 FR 14327 31.0 ...... Right of Entry ...... 06/18/86 08/03/89, 54 FR 31953 32.0 ...... Use of Evidence ...... 06/18/86 08/03/89, 54 FR 31953 33.0 ...... Confidentiality and Accessibility of Records ...... 06/18/86 08/03/89, 54 FR 31953 34.0 ...... Malfunction of Equipment ...... 06/18/86 08/03/89, 54 FR 31953 36.0 ...... Emergency Regulations ...... 07/19/89 02/21/90, 55 FR 5985 37.0 ...... Separation of Emissions ...... 06/18/86 08/03/89, 54 FR 31953 38.0 ...... Combination of Emissions ...... 06/18/86 08/03/89, 54 FR 31953 39.0 ...... Severability ...... 06/18/86 08/03/89, 54 FR 31953 41.0 ...... Regulation for the Review of New Sources ...... 06/18/86 08/03/89, 54 FR 31953 45.0 ...... Prevention of Significant Deterioration ...... 06/10/92 04/28/93, 58 FR 25776 46.0 ...... Regulation of Volatile Organic Compounds ...... 11/10/98 11/03/99, 64 FR 59628 47.0 ...... Good Engineering Practice Stack Height ...... 10/13/93 11/01/94, 59 FR 54523
* * * * * [FR Doc. 05–16931 Filed 8–24–05; 8:45 am] BILLING CODE 6560–50–P
VerDate jul<14>2003 15:45 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\25AUR1.SGM 25AUR1 49882
Proposed Rules Federal Register Vol. 70, No. 164
Thursday, August 25, 2005
This section of the FEDERAL REGISTER Executive Order 12866 and Regulatory This proposed fee increase should contains notices to the public of the proposed Flexibility Act result in an estimated $1.8 million in issuance of rules and regulations. The additional revenues per year (effective purpose of these notices is to give interested This rule has been determined to be in FY–2006, if the fees are implemented persons an opportunity to participate in the ‘‘non-significant’’ for the purposes of by October 1, 2005). This will not cover rule making prior to the adoption of the final Executive Order 12866, and therefore, rules. all of FPB’s costs. FPB will need to has not been reviewed by the Office of continue to increase fees in order to Management and Budget. cover the program’s operating cost and Also, pursuant to the requirement set DEPARTMENT OF AGRICULTURE maintain the required reserve balance. forth in the Regulatory Flexibility Act FPB believes that increasing fees Agricultural Marketing Service (RFA), AMS has considered the incrementally is appropriate at this economic impact of this action on small time. Additional fee increases beyond 7 CFR Part 51 entities. Accordingly, AMS proposes FY–2006 will be needed to sustain the this initial regulatory flexibility [Docket Number FV–04–310] program in the future. analysis. Employee salaries and benefits are RIN# 0581–AC46 The purpose of the RFA is to fit major program costs that account for regulatory actions to the scale of approximately 80 percent of FPB’s total Revision of Fees for the Fresh Fruit businesses subject to such actions in operating budget. A general and locality and Vegetable Terminal Market order that small businesses will not be salary increase for Federal employees, Inspection Services unduly or disproportionately burdened. ranging from 3.71 to 4.87 percent AGENCY: Agricultural Marketing Service, The proposed action described herein is depending on locality, effective January USDA. being taken for several reasons, 2005, has significantly increased including that additional user fee program costs. In addition, general and ACTION: Proposed rule. revenues are needed to cover the costs locality salary increases for Federal SUMMARY: This proposed rule revises or: (1) Providing current program employees ranging from 3.90% to 4.92% regulations governing the inspection operations and services: (2) improving depending on locality, effective from and certification for fresh fruits, the timeliness in which inspection January 2004, also significantly vegetables and other products by services are provided; and (3) improving increased program costs. This salary increasing by approximately 15 percent the work environment. adjustment will increase FPB’s costs by certain fees charged for the inspection of AMS regularly reviews its user-fee over $700,000 per year. Increases in these products at destination markets. financed programs to determine if the health and life insurance premiums, These revisions are necessary in order to fees are adequate. The Fresh Products along with workers compensation will recover, as nearly as practicable, the Branch (FPB) has and will continue to also increase program costs. In addition, costs of performing inspection services seek out cost saving opportunities and inflation also impacts FPB’s non-salary at destination markets. implement appropriate changes to costs. These factors have increased DATES: Comments must be postmarked, reduce its costs. Such actions can FPB’s costs of operating this program by courier dated, or sent via the Internet on provide alternatives to fee increases. over $600,000 per year. or before September 26, 2005. However, even with these efforts, FPB’s Additional funds of approximately existing fee schedule will not generate $155,000 are necessary in order for FPB ADDRESSES: Interested persons are sufficient revenue to cover program to continue to cover the costs associated invited to submit written comments costs while maintaining the Agency with additional staff and to maintain concerning this proposal. Comments mandated reserve balance. Current office space and equipment. Additional can be sent to: (1) U.S. Department of revenue projections for FPB’s revenues are also necessary to improve Agriculture, Agricultural Marketing destination market inspection work the work environment by providing Service, Fruit and Vegetable Programs, during FY 2005 are $14.6 million with training and purchasing needed Fresh Products Branch, 1400 costs projected at $20.9 million and an equipment. In addition, FPB began in Independence Ave., SW., Room 0640–S, end-of-year reserve balance of $16.4 2001, developing (with appropriated Washington, DC 20250–0295; (2) faxed million. However, this reserve balance funds) the Fresh Electronic Inspection to (202) 720–5136; (3) via e-mail to is due to appropriated funding received Reporting/Resource System (FEIRS) to [email protected].; or (4) in October 2001, for infrastructure, replace its manual paper and pen Internet: http://www.regulations.gov. workplace, and technological inspection reporting process. FEIRS was Comments should make reference to the improvements. FPB’s costs of operating implemented in 2004. This system has date and page number of this issue of the destination market program are been put in place to enhance and the Federal Register and will be made expected to increase to approximately streamline FPB’s fruit and vegetable available for public inspection in the $22.4 million during FY–06 and $23.1 inspection process, however additional above office during regular business million during FY–07. The current fee revenue is required to maintain FEIRS. hours. structure with the infusion of the This proposed rule should increase FOR FURTHER INFORMATION CONTACT: Rita appropriated funding is expected to user fee revenue generated under the Bibbs-Booth, USDA, 1400 Independence fund the terminal market inspection destination market program by Ave., SW., Room 0640–S, Washington, program until FY–2008, when FPB will approximately 15 percent. This action is DC 20250–0295, or call (202) 720–0391. fall below the Agency’s mandated four- authorized under the Agricultural SUPPLEMENTARY INFORMATION: month reserve level. Marketing Act of 1946 (AMA of 1946)
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49883
(See 7 U.S.C. 1622(h)), which provides Proposed Action increased inspection demands, and the that the Secretary of Agriculture may The AMA of 1946 authorizes official acquisition and maintenance of assess and collect ‘‘such fees as will be inspection, grading, and certification, on computer technology (i.e. FEIRS). reasonable and as nearly as may be to a user-fee basis, of fresh fruits, Employee salaries and benefits are cover the costs of services rendered vegetables and other products such as major program costs that account for * * *’’ There are more than 2,000 users raw nuts, Christmas trees and flowers. approximately 80 percent of FPB’s total of FPB’s destination market grading The AMA of 1946 provides that operating budget. A general and locality services (including applicants who must reasonable fees be collected from the salary increase for Federal employees, meet import requirements 1— users of the services to cover, as nearly ranging from 3.71 to 4.87 percent inspections which amount to under 2.5 as practicable, the cost of the services depending on locality, effective January percent of all lot inspections rendered. This proposed rule would 2005, has significantly increased performed). A small portion of these amend the schedule for fees and charges program costs. In addition, general and users are small entities under the for inspection services rendered to the locality salary increases for Federal criteria established by the Small fresh fruit and vegetable industry to Business Administration (13 CFR employees ranging from 3.90% to 4.92% reflect the costs necessary to operate the depending on locality, effective from 121.201). There would be no additional program. reporting, recordkeeping, or other January 2004, also significantly The Agricultural Marketing Service increased program costs. This salary compliance requirements imposed upon (AMS) regularly reviews its user-fee small entities as a result of this adjustment will increase FPB’s costs by programs to determine if the fees are over $700,000 per year. Increases in proposed rule. In compliance with the adequate. While the Fresh Products Paperwork Reduction Act of 1995 (44 health and life insurance premiums, Branch (FPB) of the Fruit and Vegetable along with workers compensation will U.S.C. Chapter 35), the information Programs, AMS, continues to search for collection and recordkeeping also increase program costs. In addition, opportunities to reduce its costs, the inflation also impacts FPB’s non-costs. requirements in part 51 have been existing fee schedule will not generate approved previously by OMB and These factors have increased FPB’s costs sufficient revenues to cover program of operating this program by over assigned OMB No. 0581–0125. FPB has costs while maintaining the Agency not identified any other Federal rules $600,000 per year. mandated reserve balance. Current which may duplicate, overlap or revenue projections for destination Additional revenues (approximately conflict with this proposed rule. market inspection work during FY–05 $155,000) are necessary in order for FPB The destination market grading to continue to cover the costs associated services are voluntary (except when are $14.6 million with costs projected at $20.9 million and an end-of-year reserve with additional staff and to maintain required for imported commodities) and office space and equipment. Additional the fees charged to users of these of $17.9 million. However, this reserve balance is due to appropriated funding revenues are also necessary to continue services vary with usage. However, the to improve the work environment by impact on all businesses, including received from Congress in October of 2001. These funds were established to providing training and purchasing small entities, is very similar. Further, needed equipment. In addition, FPB even though fees will be raised, the build up the terminal market inspection reserve fund and for infrastructure began in 2001, developing (with increase is not excessive and should not appropriate funds) an automated system significantly affect these entities. improvements including development and maintenance of the inspector known as FEIRS, to replace its manual Finally, except for those persons who paper and pen inspection reporting are required to obtain inspections, most training center, workplace and technological improvements, including process. Approximately $10,000 in of these businesses are typically under additional revenue per month will be no obligation to use these inspection digital imaging and automation of the inspection process. However, by FY–08, needed to maintain the system. This services, and, therefore, any decision on system has been put in place to enhance their part to discontinue the use of the without increasing fees, FPB’s trust fund balance for this program will be below FPB’s fruit and vegetable inspection services should not prevent them from processes. marketing their products. the agency mandated four-months of operating reserve (approximately $4.6 Based on the aforementioned analysis Executive Order 12988 million) deemed necessary to provide of this program’s increasing costs, AMS This proposed rule has been reviewed an adequate reserve balance in light of proposes to increase the fees for under Executive Order 12988, Civil increasing program costs. Further, FPB’s destination market inspection services. Justice Reform. This action is not costs of operating the destination market The following table compares current intended to have retroactive effect. This program are expected to increase to fees and charges with the proposed fees rule will not preempt any state or local approximately $22 million in FY–06 and charges for fresh fruit and vegetable laws, regulations or policies, unless they and to approximately $22.8 million inspection as found in 7 CFR 51.38. present an irreconcilable conflict with during FY–07. These cost increases Unless otherwise provided for by this rule. There are no administrative (which are outlined below) will result regulation or written agreement between procedures which must be exhausted from inflationary increases with regard the applicant and the Administrator, the prior to any judicial challenge to the to current FPB operations and services charge in the schedule of fees as found provisions of this rule. (primarily salaries and benefit), in § 51.38 are:
1 Section 8e of the Agriculture Marketing commodities must be issued. Import regulations Currently, there are 14 commodities subject to 8e Agreement Act of 1937, as amended (7 U.S.C. 601– apply during those periods when domestic import regulations: avocados, dates (other than 674), requires that whatever the Secretary of marketing order regulations are in effect. Section dates for processing), filberts, grapefruits, kiwifruit, Agriculture issues grade, size, quality or maturity 1308 of the Farm Security and Rural Investment Act olives (other than Spanish-style green olives), regulations under domestic marketing orders for of 2002 (Pub. L. 107–171), 7 U.S.C. 7958, requires onions, oranges, potatoes, prunes, raisins, table certain commodities, the same or comparable regulations on imports of those commodities must USDA among other things to develop new peanut grapes, tomatoes and walnuts. A current listing of be issued. Import regulations apply during those quality and handling standards for imported the regulated commodities can be found under 7 periods when domestic marketing order peanuts marketing in the United States. CFR parts 944, 980, 996, and 999.
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49884 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
Service Current Proposed
Quality and condition inspections of products each in quantities of 51 or more packages and unloaded from the same land or air conveyance: —Over a half carlot equivalent of each product ...... $99.00 $114.00 —Half carlot equivalent or less of each product ...... 83.00 95.00 —For each additional lot of the same product ...... 45.00 52.00 Condition only inspections of products each in quantities of 51 or more packages and unloaded from the same land or air conveyance: —Over a half carlot equivalent of each product ...... 83.00 95.00 —Half carlot equivalent or less of each product ...... 76.00 87.00 —For each additional lot of the same product ...... 45.00 52.00 Quality and condition and condition only inspections of products each in quantities of 50 or less packages unloaded from the same land or air conveyance: —For each product ...... 45.00 52.00 —For each additional lot of any of the same product ...... 45.00 52.00 —Lots in excess of carlot equivalents will be charged proportionally by the quarter carlot ...... Dock side inspections of an individual product unloaded directly from the same ship: —For each package weighing less than 30 pounds ...... 1 2.5 1 2.9 —For each package weighing 30 or more pounds ...... 1 3.8 1 4.4 —Minimum charge per individual product ...... 99.00 114.00 —Minimum charge for each additional lot of the same product ...... 45.00 52.00 Hourly rate for inspections performed for other purposes during the grader’s regularly scheduled work week 49.00 56.00 —Hourly rate for other work performed during the grader’s regular scheduled work week will be charged at a reasonable rate ...... Audit based services ...... 75.00 Overtime or holiday premium rate (per hour additional) for all inspections performed outside the grader’s regularly scheduled work week ...... 25.00 29.00 Hourly rate for inspections performed under 40 hour contracts during the grader’s regularly scheduled work week ...... 49.00 56.00 Rate for billable mileage ...... 1.00 1.00 1 Cents.
A thirty day comment period is (ii) $95 for a half carlot equivalent or (iii) Minimum charge of $114 per provided for interested persons to less of an individual product; individual product; comment on this proposed action. (iii) $52 for each additional lot of the (iv) Minimum charge of $52 for each Thirty days is deemed appropriate same product. additional lot of the same product. because it is preferable to have any fee (2) Condition only inspection of (2) [Reserved]. increase, if adopted, to be in place as products each in quantities of 51 or (c) When performing inspections of close as possible to the beginning of the more packages and unloaded from the products from sea containers unloaded fiscal year, October 1, 2005. same land or air conveyance: directly from sea transportation or when (i) $95 for over a half carlot equivalent palletized products unloaded directly List of Subjects in 7 CFR Part 51 of an individual product; from sea transportation are not offered Agricultural commodities, Food (ii) $87 for a half carlot equivalent or for inspection at dock-side, the carlot grades and standards, Fruits, Nuts, less of an individual product; fees in paragraph (a) of this section shall Reporting and record keeping (iii) $52 for each additional lot of the apply. requirements, Trees, Vegetables. same product. (d) When performing inspections for (3) For quality and condition For reasons set forth in the preamble, Government agencies, or for purposes inspection and condition only 7 CFR part 51 is proposed to be other than those prescribed in inspection of products in quantities of amended as follows: paragraphs (a) through (c) of this 50 or less packages unloaded from the section, including weight-only and PART 51—[AMENDED] same conveyance: (i) $52 for each individual product; freezing-only inspections, fees for 1. The authority citation for 7 CFR (ii) $52 for each additional lot of any inspections shall be based on the time part 51 continues to read as follows: of the same product. Lots in excess of consumed by the grader in connection with such inspections, computed at a Authority: 7 U.S.C. 1621–1627. carlot equivalents will be charged proportionally by the quarter carlot. rate of $56 per hour: Provided, That: 2. Section 51.38 is revised to read as (b) When performing inspections of (1) Charges for time shall be rounded follows: palletized products unloaded directly to the nearest half hour. from sea transportation or when (2) The minimum fee shall be two § 51.38 Basis for fees and rates. palletized product is first offered for hours for weight-only inspections, and (a) When performing inspections of inspection before being transported one-half hour for other inspections. product unloaded directly from land or from the dock-side facility, charges shall (3) When weight certification is air transportation, the charges shall be be determined on the following basis: provided in addition to quality and/or determined on the following basis: (1) Dock side inspections of an condition inspection, a one hour charge (1) Quality and condition inspections individual product unloaded directly shall be added to the carlot fee. of products in quantities of 51 or more from the same ship: (4) When inspections are performed to packages and unloaded from the same (i) 2.9 cents per package weighing less certify product compliance for Defense air or land conveyance: than 30 pounds; Personnel Support Centers, the daily or (i) $114 for over a half carlot (ii) 4.4 cents per package weighing 30 weekly charge shall be determined by equivalent of an individual product; or more pounds; multiplying the total hours consumed to
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49885
conduct inspections by the hourly rate. quality, and size requirements. This Justice Reform. This rule is not intended The daily or weekly charge shall be action is expected to assure the quality to have retroactive effect. This proposal prorated among applicants by of pistachios, improve the marketability will not preempt any State or local laws, multiplying the daily or weekly charge of pistachios, and provide handlers regulations, or policies, unless they by the percentage of product passed more marketing flexibility. The benefits present an irreconcilable conflict with and/or failed for each applicant during of this action are expected to offset the this rule. that day or week. Waiting time and increased inspection costs. The Act provides that administrative overtime charges shall be charged DATES: Comments must be received by proceedings must be exhausted before directly to the applicant responsible for September 1, 2005. parties may file suit in court. Under their incurrence. ADDRESSES: Interested persons are section 608c(15)(A) of the Act, any (e) When performing inspections at invited to submit written comments handler subject to an order may file the request of the applicant during concerning this proposal. Comments with USDA a petition stating that the periods which are outside the grader’s must be sent to the Docket Clerk, order, any provision of the order, or any regularly scheduled work week, a Marketing Order Administration obligation imposed in connection with charge for overtime or holiday work Branch, Fruit and Vegetable Programs, the order is not in accordance with law shall be made at the rate of $29.00 per AMS, USDA, 1400 Independence and request a modification of the order hour or portion thereof in addition to Avenue SW, STOP 0237, Washington, or to be exempted therefrom. A handler the carlot equivalent fee, package DC 20250–0237; Fax: (202) 720–8938, or is afforded the opportunity for a hearing charge, or hourly charge specified in E-mail: [email protected], or on the petition. After the hearing USDA this subpart. Overtime or holiday Internet: http://www.regulations.gov. All would rule on the petition. The Act charges for time shall be rounded to the comments should reference the docket provides that the district court of the nearest half hour. number and the date and page number United States in any district in which (f) When an inspection is delayed of this issue of the Federal Register and the handler is an inhabitant, or has his because product is not available or will be made available for public or her principal place of business, has readily accessible, a charge for waiting inspection in the Office of the Docket jurisdiction to review USDA’s ruling on time shall be made at the prevailing Clerk during regular business hours, or the petition, provided an action is filed hourly rate in addition to the carlot can be viewed at: http:// not later than 20 days after the date of equivalent fee, package charge, or www.ams.usda.gov/fv/moab.html. the entry of the ruling. hourly charge specified in this subpart. This rule would modify sampling FOR FURTHER INFORMATION CONTACT: Rose Waiting time shall be rounded to the procedures for dark-stained pistachios Aguayo or Terry Vawter, Marketing nearest half hour. which are intended to be dyed or color- Specialists, California Marketing Field coated. It would also establish Dated: August 18, 2005. Office, Marketing Order Administration reinspection requirements for lots of Kenneth C. Clayton, Branch, Fruit and Vegetable Programs, pistachios, which are materially Associate Administrator, Agricultural AMS, USDA; Telephone: (559) 487– changed after meeting initial aflatoxin, Marketing Service. 5901, Fax: (559) 487–5906; or George quality, and size requirements. This [FR Doc. 05–16863 Filed 8–24–05; 8:45 am] Kelhart, Technical Advisor, Marketing action is expected to assure the quality BILLING CODE 3410–02–P Order Administration Branch, Fruit and of pistachios, provide handlers more Vegetable Programs, AMS, USDA, 1400 marketing flexibility, and improve the Independence Avenue SW, STOP 0237, marketability of pistachios. The benefits DEPARTMENT OF AGRICULTURE Washington, DC 20250–0237; of this action are expected to offset the Telephone: (202) 720–2491, Fax: (202) increased inspection costs. For the Agricultural Marketing Service 720–8938. Small businesses may request purposes of this proposed rule, the 7 CFR Part 983 information on complying with this terms ‘‘marketing year’’ and regulation by contacting Jay Guerber, ‘‘production year’’ are synonymous. [Docket No. FV05–983–2 PR] Section 983.46 of the order authorizes Marketing Order Administration the Committee to recommend that the Pistachios Grown in California; Branch, Fruit and Vegetable Programs, Secretary modify or suspend the order Establishment of Additional Inspection AMS, USDA, 1400 Independence provisions contained in §§ 983.38 Requirements Avenue SW, STOP 0237, Washington, through 983.45. These sections took DC 20250–0237; Telephone: (202) 720– AGENCY: Agricultural Marketing Service, effect August 1, 2005. USDA. 2491, Fax: (202) 720–8938, or E-mail: [email protected]. Sampling Procedures ACTION: Proposed rule. SUPPLEMENTARY INFORMATION: This Sections 983.38 and 983.39 of the SUMMARY: This rule invites comments proposal is issued under Marketing order specify maximum aflatoxin, on the establishment of additional Order No. 983 (7 CFR part 983), minimum quality and minimum size inspection requirements authorized regulating the handling of pistachios requirements, respectively, that must be under the California pistachio marketing grown in California, hereinafter referred met prior to the shipment of pistachios. order (order). The order regulates the to as the ‘‘order.’’ The order is effective Sections 983.38(d)(1) and 983.39(e)(1) handling of pistachios grown in under the Agricultural Marketing of the order specify that a sample must California and is administered locally Agreement Act of 1937, as amended (7 be drawn from each lot, and that this lot by the Administrative Committee for U.S.C. 601–674), hereinafter referred to sample must be divided into two Pistachios (Committee). This rule would as the ‘‘Act.’’ samples—one portion for aflatoxin modify sampling procedures for dark- The Department of Agriculture testing and one for minimum quality stained pistachios which are intended to (USDA) is issuing this rule in and size testing. be dyed or color-coated. It would also conformance with Executive Order Section 983.39(b)(3)(iv) of the order establish reinspection requirements for 12866. currently defines dark stain and lots of pistachios, which are materially This proposal has been reviewed specifies that pistachios that are dyed or changed after meeting initial aflatoxin, under Executive Order 12988, Civil color-coated to improve their marketing
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49886 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
quality are not subject to the maximum minimum quality requirements under pound for these previously permissible defects for dark stain. the U.S. Grade Standards for Pistachios unmarketable dark-stained inshell Pistachios grow on trees in grape-like in the Shell (7 CFR 51.2540 through pistachios. This increased value also is clusters and are encased in an outer 51.2549) or the minimum quality expected to contribute to improved or skin, or hull. During the pistachio requirements under the order, that maintained producer returns. harvest process, the nuts, which contain became effective August 1, 2005. a significant amount of moisture when On dark stained lots, it is common Reinspection harvested, must arrive at the handling practice for handlers to use or submit Sections 983.38 and 983.39 of the facility as soon as possible and the hulls the portion of the initial natural sample order will specify maximum aflatoxin, covering the shell must be removed. If designated for aflatoxin testing for the and minimum quality and minimum the hulls are not removed from the nuts aflatoxin testing at a USDA or USDA size requirements, respectively. These within 24 hours of their removal from approved laboratory. If the sample sections took effect August 1, 2005. the tree, staining of the outer shell meets the aflatoxin requirements, Section 983.39(e) of the pistachio occurs. After being hulled, the handlers then return the sample portion order will provide minimum quality pistachios are then dried, and placed in designated for the minimum quality and testing and inspection procedures and storage containers. When the nuts are minimum size testing to the lot, dye or require each lot of pistachios to be removed from storage, they are sorted, color-coat the lot, and draw or have certified, be uniquely identified, and sized, graded, and mechanically drawn a second representative dyed or traceable from testing through shipment separated into open and closed shell color-coated sample for minimum by the handler. product (pin-picked), and placed into quality and size testing. The second Section 983.41 of the pistachio order lots for aflatoxin and minimum quality representative sample is taken after the provides handlers who handle less than testing. Some handlers have the pistachios have been dyed or color- 1 million pounds of assessed weight pistachios tested for aflatoxin prior to coated to assure that the coloring is (dried weight) pistachios per production these processes. A ‘‘lot’’ is any quantity uniform and adequately covers the year (September 1–August 31) with of pistachios that is designated for stained pistachios. certain aflatoxin testing options and testing. Because the inspection requirements allows such handlers to apply to the During the sorting process, the inshell do not provide for a second sample after Committee for an exemption from pistachios are separated by the color of dyeing or color-coating, the Committee, minimum quality testing. Handlers the shells and the amount of stain on on December 15, 2004, recommended granted an exemption will be required the shells. On average, approximately 95 modifying the order’s sampling to pull the samples, make them percent of the harvested inshell procedures and establishing a new available for review by the Committee, pistachios are placed into lots section entitled ‘‘§ 983.138—Samples and maintain these samples in their designated as non-stained or light- for testing.’’ The vote was 8 in favor and handling facilities for 90 days. Handlers stained pistachios. Such pistachios are 0 opposed. who do not apply or who are not typically marketed without any For those lots that consist of primarily granted an exemption from minimum treatment to cover the stains. The light-stained or non-stained inshell quality testing, must test all lots for remaining 5 percent are placed into lots pistachios, one sample would continue aflatoxin, quality, and size requirements consisting primarily of dark-stained to be drawn as specified in under the order. This section also took inshell pistachios. Handlers typically §§ 983.38(d)(1) and 983.39(e)(1) of the effect August 1, 2005. dye or color-coat the dark-stained order. Section 983.42 of the pistachio order inshell pistachios to cover the stains, The Committee estimated that the provides that handlers may commingle because they are generally not total 2005–06 inshell pistachio crop will aflatoxin and minimum quality certified marketable in their natural state. The be approximately 200 million pounds lots with other certified lots. This staining detracts from their appearance. and that approximately 5 percent (6 section took effect August 1, 2005. The color-coating process usually million pounds or 600 lots) of all inshell Section 983.43 of the pistachio order consists of applying a white coating or pistachios marketed domestically would provides authority for the Committee to a flavoring to the shells of the be dyed or color-coated to cover dark- recommend the establishment of rules pistachios. The dyeing process consists stained shells. and regulations to specify conditions of applying a dye to the shells. These While this modification to sampling under which pistachios would be pistachios are marketed after either of procedures under the order is expected subject to reinspection. This section, these processes are performed by the to result in a slight increase in too, took effect August 1, 2005. handler. inspection costs for lots which are dyed Section 983.70 of the pistachio order Under the regulatory requirements of or color-coated, the improvement in the exempts handlers who handle 1,000 the order, one test sample will be drawn marketability of these pistachios is pounds or less of dried weight per lot and divided into two portions— expected to offset the additional costs. pistachios during any marketing year one for aflatoxin testing and the other When the dark-stained pistachios are (dried to 5 percent moisture) within the for minimum quality and size testing. shelled out, the kernels generally have production area from all aflatoxin and Handlers or the inspection service will an approximate value of $1.00 per minimum quality requirements. draw this sample while the pistachios pound, which is substantially less than As mentioned earlier, during the are in their natural state (prior to dyeing the $2.00 per pound value of dyed or production year handlers typically hull or color-coating) because false positive color-coated inshell pistachios. and dry pistachios and place the nuts test results may occur when dyed or Producers, handlers, and consumers into storage containers. These nuts color-coated pistachios are used in benefit from dyeing or color-coating, usually remain in storage until an order conducting aflatoxin tests. Lots of badly because dyeing or color-coating dark- is received from a buyer. When the nuts stained natural condition pistachios stained inshell pistachios results in nuts are removed from storage, handlers have would likely exceed the maximum having a more desirable color. This the option of sampling and having the permissible 3 percent by weight makes the nuts more appealing to nuts tested for aflatoxin prior to further tolerance for dark stain. Thus, they retailers and consumers. Thus, retailers processing (i.e., sorting, sizing, grading, would fail to meet existing voluntary are willing to pay on average $2.00 per and pin-picking (segregating the split-
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49887
and closed-shell pistachios)), or placing more than 1,000 pounds and less than Initial Regulatory Flexibility Analysis the nuts into lots for aflatoxin and a million pounds and who are not Pursuant to requirements set forth in minimum quality and size testing after granted such an exemption by the the Regulatory Flexibility Act (RFA), these processes have been performed. Committee are required to meet the AMS has considered the economic The first option is expected to be used traceability procedures as specified in impact of this action on small entities. primarily by those handlers who have § 983.38(d) of the order and the Accordingly, AMS has prepared this been granted an exemption from aflatoxin, quality, and size requirements initial regulatory flexibility analysis. minimum quality and size testing under the order. The purpose of the RFA is to fit pursuant to § 983.41(b). Most handlers After certification for aflatoxin, regulatory actions to the scale of are expected to perform these processes, quality, and size or pulling and business subject to such actions in order segregate the pistachios into lots, and retaining required samples, the majority that small businesses would not be then draw or have drawn the samples of these lots are shipped directly into unduly or disproportionately burdened. for the required aflatoxin, quality, and the channels of commerce. However, Marketing orders issued pursuant to the size tests. some certified lots are readied and Typically, handlers who handle a Act, and the rules issued thereunder, are retained in the handler’s facility in million or more pounds of assessed unique in that they are brought about anticipation of future orders. weight pistachios per marketing year through group action of essentially further process the nuts prior to testing When handlers receive new orders, small entities acting on their own for aflatoxin, quality, and size they typically either resort or resize behalf. Thus, both statutes have small requirements. Such handlers, pursuant existing certified lots of inshell entity orientation and compatibility. to § 983.38(d) are required to uniquely pistachios or create new lots from There are approximately 24 handlers identify each lot so that it can be traced uncertified stored nuts. When existing of California pistachios subject to from the point of testing through certified lots are used they generally regulation under the order and shipment. have to be reworked to meet specific approximately 741 producers in the Pistachio handlers who handle less buyer needs. For instance, light-stained production area. Small agricultural than a million pounds of assessed nuts, dark-stained nuts, insect infested producers are defined by the Small weight pistachios per marketing year nuts, smaller or larger-sized nuts, closed Business Administration (13 CFR and whose pistachios pass aflatoxin shell or open shell nuts may have to be 121.201) as those having annual receipts testing requirements would not have to removed via hand-sorting, color-sorting, less than $750,000, and small comply with the traceability procedures pin-picking and/or resizing. Removal of agricultural service firms are defined as set forth in § 983.38(d). Furthermore, these nuts results in new lots which no those whose annual receipts are less pursuant to § 983.41(a) of the order, longer have representative inspection than $6,000,000. Seventeen of the 24 such handlers may test their entire certificates. Such lots would be handlers subject to regulation have inventory (maximum lot size of 150,000 considered to have been ‘‘materially annual pistachio receipts of less than pounds) or segregate receipts into changed’’. $6,000,000. In addition, 722 producers various sized lots and have an inspector have annual receipts less than $750,000. Thus, the Committee at its November Thus, the majority of handlers and sample and test each specified lot for 3, 2004, meeting, unanimously aflatoxin and may also, pursuant to producers of California pistachios may recommended establishing a new be classified as small entities. § 983.41(b) of the order, apply to the section entitled ‘‘§ 983.143— Committee for an exemption from This rule would modify sampling Reinspection’’ to define the term procedures for dark-stained pistachios minimum quality testing. ‘‘materially changed’’ and to specify Because it is more economical for which are intended to be dyed or color- handler reinspection requirements to smaller handlers to test larger lots for coated. It would also establish assure the quality of pistachios entering aflatoxin and to be exempt from reinspection requirements for lots of market channels. minimum quality testing, it is expected pistachios, which are materially that the majority, if not all such The Committee, at its April 12, 2005, changed after meeting initial aflatoxin, handlers, will apply for the exemption meeting, reconsidered and further quality, and size requirements. This from minimum quality testing. clarified its previous recommendation. action is expected to assure the quality Exempted handlers, who handle more The Committee unanimously of pistachios, provide handlers more than 1,000 pounds and less than a recommended that, effective August 1, marketing flexibility, improve the million pounds of assessed weight 2005, lots which are color-sorted, hand- marketability of pistachios, and enhance pistachios per marketing year, would sorted, pin-picked, and/or resized after the marketability of reworked draw or have one sample drawn per lot. being initially certified for aflatoxin, pistachios. These benefits are expected This sample would be divided into two quality, and size requirements under the to offset increased inspection costs. portions, one for aflatoxin and one for order be considered ‘‘materially Section 983.46 of the order authorizes minimum quality testing. Typically, changed’’ and that any portion of a lot the Committee to recommend that the when such handlers receive notice that (the portion resorted and resized to meet Secretary modify or suspend order the lots have passed aflatoxin testing buyer specifications or the portion that provisions contained in §§ 983.38 requirements, they return the sample was removed from the original lot) be through 983.45. These provisions took portion designated for minimum quality inspected as new lots. The Committee effect August 1, 2005. testing to the lot. Such lots are then clarified, that § 983.42 which provides further processed (i.e., sized, sorted, air- that previously certified lots can be Sampling Procedures legged, pin-picked, and graded). commingled with other certified lots, Sections 983.38 and 983.39 of the Handlers would then draw a new does not apply to portions of lots which order specify maximum aflatoxin, sample, which is required to be are materially changed under the order, minimum quality and minimum size maintained for 90 days at the handler’s as such newly formed lots may no requirements, respectively, that must be facilities and required to be made longer contain the same quantity or met prior to the shipment of pistachios. available for review or auditing by the quality of inshell pistachios as the Sections 983.38(d)(1) and 983.39(e)(1) Committee. Those handlers who handle original lots. of the order specify that a sample must
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49888 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
be drawn from each lot, and that this lot (prior to dyeing or color-coating) or color-coated, the improvement in the sample must be divided into two because false positive test results may marketability of these pistachios is samples—one portion for aflatoxin occur when dyed or color-coated expected to offset the additional costs. testing and one for minimum quality pistachios are used in conducting When the dark-stained pistachios are and size testing. aflatoxin tests. shelled out, the kernels are expected to Section 983.39(b)(3)(iv) of the order When handlers believe that lots of have an approximate value of $1.00 per defines dark stain and specifies that natural condition pistachios exceed the pound, which is substantially less than pistachios that are dyed or color-coated maximum permissible 3 percent by the $2.00 per pound value of dyed or to improve their marketing quality are weight tolerance for dark stain under color-coated inshell pistachios. not subject to the maximum permissible the existing voluntary minimum quality Accordingly, producers, handlers, and defects for dark stain. requirements of the U.S. Grade consumers would benefit, as dyeing and Pistachios grow on trees in grape-like Standards for Pistachios in the Shell (7 color-coating dark-stained inshell clusters and are encased in an outer CFR part 51.2540 through 51.2549), or pistachios results in nuts with a more skin, or hull. During the pistachio the minimum quality requirements pleasing appearance. Covering the dark harvest process, the nuts, which contain under the order, they will have the stain would allow these edible a significant amount of moisture when natural condition portion of the sample pistachios to meet minimum quality harvested, must arrive at the handling designated for aflatoxin testing tested. If requirements under the order and also facility as soon as possible and the hulls the sample meets the aflatoxin make the pistachios more appealing to covering the shell must be removed. If requirements, handlers then return the retailers and consumers. Retailers are the hulls are not removed from the nuts sample portion designated for the expected to be willing to pay on average within 24 hours of their removal from minimum quality and minimum size $2.00 per pound for these nuts that were the tree, staining of the outer shell testing to the lot, dye or color-coat the previously unmarketable as inshell nuts. occurs. After being hulled, the lot, and draw or have drawn a second This increased value also is expected to pistachios are then dried, and placed in representative dyed or color-coated contribute to improved or maintained storage containers. When the nuts are sample to be tested for minimum quality producer returns. removed from storage, they are sorted, and size. This second sample is taken sized, graded, and mechanically after the pistachios have been dyed or Reinspection separated into open and closed shell color-coated to assure that the color is Sections 983.38 and 983.39 of the product (pin-picked) and placed into uniform and adequately covers the order specify maximum aflatoxin lots for aflatoxin and minimum quality staining. requirements, and minimum quality and testing. A ‘‘lot’’ is any quantity of Because the inspection requirements minimum size requirements, pistachios that is segregated for testing. do not provide for sampling and respectively. During the sorting process, the inshell inspections at this stage of the process, Section 983.39(e) of the pistachio pistachios are separated by the color of the Committee, on December 15, 2004, order provides minimum quality testing the shells and the amount of stain on recommended modifying the order’s and inspection procedures and requires the shells. On average, approximately 95 sampling procedures and establishing a that each lot of pistachios to be certified percent of the harvested inshell new section entitled ‘‘§ 983.138 Samples pistachios are placed into lots for testing.’’ The vote was 8 in favor and be uniquely identified and traceable designated as non-stained or light- 0 opposed. from testing through shipment by the stained pistachios. Such pistachios are The first alternative considered was to handler. typically marketed without any leave the order provisions unchanged, Section 983.43 of the pistachio order treatment to cover or remove the stains. but this alternative was not adopted, as provides authority for the Committee to The remaining 5 percent are placed into handlers, producers, and consumers recommend the establishment of rules lots consisting primarily of dark-stained would benefit from permitting the and regulations to specify conditions inshell pistachios. Handlers typically orderly marketing of pistachios under which pistachios would be dye or color-coat the dark-stained containing edible nutmeats that fail subject to reinspection. inshell pistachios to cover the stains, minimum quality for external cosmetic Section 983.41 of the pistachio order because they are generally not reasons. The Committee also considered provides handlers who handle less than marketable in their natural state. providing handlers with more flexibility 1 million pounds of assessed weight The color-coating process usually in removing dark-stained inshell (dried weight) pistachios per production consists of applying a white coating or pistachios from lots, but decided that year (September 1–August 31) with a flavoring to the shells of the modifying the sampling procedures for certain aflatoxin testing options and pistachios. The dyeing process consists lots intended for dyeing or color-coating allows such handlers to apply to the of applying a dye to the shells. would allow handlers to market these Committee for an exemption from Prior to placing pistachios into the dark-stained pistachios without having minimum quality testing. Handlers domestic channels of commerce on to implement lengthy and costly granted an exemption must pull the August 1, 2005, and later, handlers will removal processes. samples and maintain these samples in be required to draw or have drawn a The Committee estimated that the their handling facilities for 90-days for sample and test or have tested each total 2005–06 inshell pistachio crop will review and audit by the Committee sample for aflatoxin, quality, and size be approximately 200 million pounds when requested. Handlers who are not requirements, unless exempted under and that approximately 5 percent (6 granted an exemption from minimum §§ 983.41 or 983.70 of the order. million pounds or 600 lots) of all inshell quality testing, must test all lots for Under the regulatory requirements of pistachios marketed domestically would aflatoxin, quality and size requirements the order, one test sample will be drawn be dyed or color-coated to cover dark- under the order. per lot and divided into two portions— stained shells. Section 983.42 of the pistachio order one for aflatoxin testing and the other While this modification to sampling provides that handlers may commingle for minimum quality and size testing. procedures under the order is expected aflatoxin and minimum quality certified Handlers will draw this sample while to result in a slight increase in lots with other certified lots. This the pistachios are in their natural state inspection costs for lots which are dyed section took effect August 1, 2005.
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49889
Section 983.43 of the pistachio order into two portions, one for aflatoxin and was removed from the original lot) be provides authority for the Committee to one for minimum quality testing. inspected as new lots. The Committee recommend the establishment of rules Typically, when such handlers receive clarified, that § 983.42 which provides and regulations to specify conditions notice that the lots have passed that previously certified lots can be under which pistachios would be aflatoxin testing requirements, they commingled with other certified lots, subject to reinspection. This section, return the sample portion designated for does not apply to portions of lots which too, took effect August 1, 2005. minimum quality testing to the lot. Such are materially changed under the order, Section 983.70 of the pistachio order lots are then further processed (sized, as such newly formed lots may no exempts handlers who handle 1,000 sorted, air-legged, pin-picked, and longer contain the same quantity or pounds or less of dried weight graded). Handlers would then draw a quality of inshell pistachios as the pistachios during any marketing year new sample, which is required to be original lots. (dried to 5 percent moisture) within the maintained for 90-days at the handler’s Lastly, the Committee recommended production area from all aflatoxin and facilities and made available for review that some handlers be exempt from minimum quality requirements. or auditing by the Committee. reinspection requirements under the As mentioned earlier, during the Those handlers who handle more order. As previously mentioned, production year handlers typically hull than 1,000 pounds and less than a § 983.70 of the pistachio order exempts and dry pistachios and place the nuts million pounds and who are not granted handlers who handle 1,000 pounds or into storage containers. These nuts such an exemption by the Committee less of dried weight pistachios during usually remain in storage until an order are required to meet the traceability any marketing year (dried to 5 percent is received from a buyer. When the nuts procedures as specified in § 983.38(d) of moisture) from all aflatoxin and are removed from storage, handlers have the order and the aflatoxin, quality, and minimum quality requirements. Thus, the option of testing the nuts for size requirements under the order for the Committee recommended that such aflatoxin prior to further processing (i.e., each lot of pistachios. handlers also be exempt from any sorting, sizing, grading, pin-picking After certification for aflatoxin, reinspection requirements under the (segregating the split- and closed-shell quality, and size or pulling and order. nuts), or placing the nuts into lots for retaining required samples, the majority Additionally, § 983.41 of the pistachio aflatoxin and minimum quality and size of these lots are shipped directly into order provides that handlers who testing after these processes have been the channels of commerce. However, completed. some certified lots are readied and handle less than 1 million pounds of Typically, handlers who handle a retained in the handler’s facility in assessed weight (dried weight) million or more pounds of assessed anticipation of future orders. pistachios per production year weight pistachios per marketing year When handlers receive new orders, (September–August 31) with certain further process the nuts prior to testing they typically either resort or resize aflatoxin testing options and allows for aflatoxin, quality, and size existing certified lots of inshell such handlers to apply to the Committee requirements. Such handlers, pursuant pistachios or create new lots from for an exemption from minimum quality to § 983.38(d) are required to uniquely uncertified stored nuts. When existing and size testing. The order further identify each lot so that it can be traced certified lots are used they generally provides that handlers, who are granted from the point of testing through have to be reworked to meet specific an exemption, shall pull and maintain shipment. buyer needs. For instance, light-stained for 90 days representative lot samples of Pistachio handlers who handle less nuts, dark-stained nuts, insect infested any lots intended to be shipped into the than a million pounds of assessed nuts, smaller or larger sized nuts, closed domestic channels of commerce for weight pistachios per marketing year shell or open shell nuts may have to be review and audit by the Committee as and whose pistachios pass aflatoxin removed via hand-sorting, color-sorting, requested. testing requirements would not have to pin-picking and/or resizing. Removal of The Committee recommended comply with the traceability procedures these nuts, results in new lots which no exempting such handlers from set forth in § 983.38(d). Furthermore, longer have representative inspection reinspection requirements, as typically pursuant to § 983.41(a) of the order, certificates. Such lots would be such handlers pull or have pulled such handlers may test their entire considered to have been ‘‘materially representative lot samples immediately inventory (maximum lot size of 150,000 changed’’. prior to shipment, do not materially pounds) or segregate receipts into Thus, the Committee at its November change the lots, and ship such lots various sized lots and have an inspector 3, 2004, meeting, unanimously directly into the domestic channels of sample and have each specified lot recommended establishing a new commerce and because the Committee tested for aflatoxin and may also, section entitled ‘‘§ 983.143— believed such smaller handlers could be pursuant to § 983.41(b) of the order, Reinspection’’ to define the term negatively impacted by the additional apply to the Committee for exemption ‘‘materially changed’’ and to specify cost of reinspection. However, because from minimum quality testing. handler reinspection requirements. such handlers could materially change Because it is more economical for The Committee, at its April 12, 2005, their lots prior to shipment into the smaller handlers to test larger lots for meeting, reconsidered and further domestic channels of commerce, USDA aflatoxin and to be exempt from clarified its previous recommendation. is proposing to require such handlers to minimum quality testing, it is expected The Committee unanimously pull or have pulled representative that the majority, if not all such recommended that, effective August 1, samples of the materially changed lots handlers, will apply for the exemption 2005, lots which are color-sorted, hand- to assure the quality of the pistachios from minimum quality and size testing. sorted, pin-picked, and/or resized after and to keep the sampling and inspection Thus, those exempted handlers, who being initially certified for aflatoxin, procedures consistent with order handle more than 1,000 pounds and less quality, and size requirements under the authority. As noted in this document, than a million pounds of assessed order be considered ‘‘materially the costs for reinspection are expected weight pistachios per marketing year, changed’’ and that any portion of a lot to be small compared to the benefit of would draw or have one sample drawn (the portion resorted and resized to meet assuring the quality of the pistachios per lot. This sample would be divided buyer specifications or the portion that entering commercial channels.
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49890 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
Such representative lot samples Typically, nuts removed from materially duplication by industry and public would be divided into two parts, one changed lots are blended into other lots sector agencies. part would be retested for aflatoxin and of uninspected inshell pistachios, USDA has not identified any relevant the other part would be maintained for shelled out into kernels, dyed or color- Federal rules that duplicate, overlap or 90 days at the handler’s facilities. Such coated, or discarded. Very few inshell conflict with this proposed rule. samples would be stored in the pistachios are discarded, as handlers In addition, the Committee’s meetings handler’s facility and should not add to typically further process the nuts to were widely publicized throughout the the handler’s cost. Additionally, obtain as many marketable nuts as pistachio industry and all interested handlers would be required to make possible. persons were encouraged to attend the those samples maintained for 90 days Closed-shell pistachios that are not meetings and participate in the available for auditing by the Committee. blended into other uninspected lots are Committee’s deliberations on all issues. While handlers who handle less than typically shelled out into kernels. Like all Committee meetings, the a million pounds may apply to the Kernels are marketed on average for November 3, December 15, 2004, and Committee for a minimum quality $1.00 per pound on the domestic market April 12, 2005, meetings, were public testing exemption, there may be and can be marketed in some export meetings and all entities, both large and occasions when the Committee does not markets for $2.00 to $3.00 per pound. small, were able to express their views grant these handlers such an exemption. Ordinarily, the dark-stained pistachios on these issues. Finally, interested The Committee unanimously that are not blended into other persons are invited to submit recommended that such handlers and uninspected lots are dyed or color- information on the regulatory and any handler who handles more than a coated and are marketed for $2.00 per informational impacts of this action on million pounds of assessed weight pound in the domestic market, slightly small businesses. pistachios during per marketing year less than the price received for natural A small business guide on complying and who materially changes any lot of condition, inshell pistachios. Dyed or with fruit, vegetable, and specialty crop pistachios shall test or have tested such color-coated nuts occasionally can be marketing agreements and orders may lots for aflatoxin, and minimum quality marketed in export markets as well. The be viewed at: http://www.ams.usda.gov/ and size requirements under the order Committee mentioned that the cost of fv/moab.html. Any questions about the before shipping such pistachios into the resorting and resizing lots varies from compliance guide should be sent to Jay domestic channels of commerce, when lot to lot, and that such costs are Guerber at the previously mentioned the order requirements took effect on dependent upon whether the product is address in the FOR FURTHER INFORMATION August 1, 2005. hand sorted or mechanically sorted, the CONTACT section. The Committee also discussed size of the lot, the percentage of the lot A 7-day comment period is provided alternatives to this change, including removed, and other similar factors. The to allow interested persons to respond not establishing these reinspection Committee believes that the overall to this proposal. Seven days is deemed requirements, but believes that handler cost for resorting and/or appropriate because any changes consumers should be provided with resizing such lots is typically resulting from this proposed rule should assurance of a certified high quality insignificant compared to the prices be in place by mid-September. The product that does not currently exist received for better quality lots. beginning of harvest for the 2005–06 when a certified lot is ‘‘materially In reviewing inspection costs, the season is expected to start at the end of changed.’’ Also, the Committee Committee believes that a typical initial August and handlers are expected to discussed but decided not to include the aflatoxin certification costs begin reworking their lots of pistachios following processes in the definition of approximately $70 per lot and an initial by mid-September. All written ‘‘materially changed’’: (1) Roasting, minimum quality inspection costs $100 comments timely received will be salting, flavoring, dyeing, color-coating, per lot. Buyers and consumers are considered before a final determination were discussed but not included in the willing to pay more for more appealing is made on this matter. definition as these processes do not alter pistachios. Therefore, the Committee a lot’s minimum quality or maximum expects that handlers will market these List of Subjects in 7 CFR Part 983 aflatoxin levels; (2) cleaning was materially changed lots at prices that Pistachios, Marketing agreements and considered but not included because will offset the combined costs of initial orders, Reporting and recordkeeping cleaning typically is accomplished prior inspection, reprocessing, and requirements. to the initial inspection; and (3) air- reinspection. For the reasons set forth in the legging which is performed to remove Thus, this action is expected to preamble, 7 CFR part 983 is proposed to loose shells, was considered but not benefit handlers, buyers, and be amended as follows: included because this process does not consumers. Handlers and buyers would significantly change a lot. be able to offer higher quality lots and PART 983—PISTACHIOS GROWN IN Lastly, the Committee discussed consumers would receive more CALIFORNIA whether tracing a lot would provide appealing, higher quality pistachios. 1. The authority citation for 7 CFR assurance that materially changed lots These higher quality lots also should part 983 continues to read as follows: would continue to meet the order’s contribute to improved grower returns. maximum aflatoxin and minimum The Committee does not foresee any Authority: 7 U.S.C. 601–674. quality requirements and believed that industry problems that may result from 2. In part 983, Subpart—Rules and it would not provide such assurance. It implementation of this Regulations is amended by adding new is of the view, that the best way to recommendation. §§ 983.138 and 983.143 to read as assure the quality of materially changed This action would not impose any follows: lots was through resampling and additional reporting or recordkeeping retesting. requirements on either small or large § 983.138 Samples for testing. The Committee also discussed the pistachio handlers. As with all Federal Prior to testing, a sample shall be slight increase in the cost of inspection marketing order programs, reports and drawn from each lot and divided into and the benefits of this action for forms are periodically reviewed to two subsamples to be used to test handlers, consumers, and producers. reduce information requirements and pistachios for aflatoxin and for
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49891
minimum quality. The lot subsamples Electronic Fund Transfer Act (EFTA). I. Background shall be of sufficient weight to comply The proposal would also revise the The Electronic Fund Transfer Act with Tables 1 and 2 of § 983.38 and official staff commentary to the (EFTA or Act) (15 U.S.C. 1693 et seq.), Table 4 of § 983.39: Provided, that lots regulation. The commentary interprets enacted in 1978, establishes the rights, of pistachios which are intended for the requirements of Regulation E to liabilities, and responsibilities of dyeing or color-coating shall be sampled facilitate compliance primarily by participants in electronic fund transfer for minimum quality after the dyeing or financial institutions that offer (EFT) systems. The Board’s Regulation E color-coating process. electronic fund transfer services to (12 CFR part 205) implements the consumers. EFTA. Examples of types of transfers § 983.143 Reinspection. The proposed revisions would clarify covered by the Act and regulation (a) Any lot of inshell pistachios that the disclosure obligations of automated include transfers initiated through an is pin-picked, hand-sorted, color-sorted, teller machine (ATM) operators with automated teller machine (ATM), point- and/or resized is considered to be respect to fees imposed on a consumer of-sale (POS) terminal, automated ‘‘materially changed.’’ Pistachios which for initiating an electronic fund transfer clearinghouse (ACH), telephone bill- are roasted, salted, flavored, air-legged, or a balance inquiry at an ATM. The payment plan, or remote banking dyed, color-coated, cleaned, and Board is withdrawing previously service. The Act and regulation require otherwise subjected to similar processes proposed revisions to the Regulation E disclosure of terms and conditions of an are not considered to be materially staff commentary that would have EFT service; documentation of changed. addressed this issue. (b) Each handler who handles electronic transfers by means of DATES: Comments must be received on terminal receipts and periodic account pistachios shall cause any lot or portion or before October 7, 2005. of a lot initially certified for aflatoxin, activity statements; limitations on ADDRESSES: You may submit comments, consumer liability for unauthorized quality, and size requirements, and identified by Docket No. R–1234, by any subsequently materially changed, to be transfers; procedures for error of the following methods: resolution; and certain rights related to reinspected for aflatoxin, quality, and • Agency Web site: http:// size, and certified as new lots: Provided, preauthorized EFTs. www.federalreserve.gov. Follow the The Official Staff Commentary (12 that: (1) Pursuant to § 983.41(b) handlers instructions for submitting comments at CFR part 205 (Supp. I)) is designed to exempted from minimum quality testing http://www.federalreserve.gov/ facilitate compliance and provide shall pull or have pulled representative generalinfo/foia/ProposedRegs.cfm. protection from liability under sections lot samples for aflatoxin testing of any • Federal eRulemaking Portal: http:// 915 and 916 of the EFTA for financial materially changed lots intended to be www.regulations.gov. Follow the institutions and persons subject to the shipped into the domestic channels of instructions for submitting comments. Act. 15 U.S.C. 1593m(d)(1). The commerce. Such representative lot • E-mail: commentary is updated periodically, as samples shall be divided into two parts, [email protected]. necessary, to address significant one part shall be retested for aflatoxin Include docket number in the subject questions that arise. and the other part shall be maintained line of the message. for 90 days at the handler’s facilities. • FAX: 202/452–3819 or 202/452– II. Summary of Proposed Revisions Handlers shall make the samples 3102. • Section 205.16 provides that an ATM maintained for 90 days available for Mail: Jennifer J. Johnson, Secretary, operator that imposes a fee on a auditing by the Administrative Board of Governors of the Federal consumer for initiating an EFT or a Committee for Pistachios; and (2) Reserve System, 20th Street and balance inquiry must post notices at handlers exempted from order Constitution Avenue, NW., Washington, ATMs that a fee will be imposed. requirements under § 983.70 are DC 20551. Section 205.16(b) would be revised to All public comments are available exempted from all reinspection clarify the operation of the ATM signage from the Board’s Web site at http:// requirements. rule when fees are not imposed by the www.federalreserve.gov/generalinfo/ Dated: August 22, 2005. ATM operator on all consumers. The foia/ProposedRegs.cfm as submitted, Lloyd C. Day, revised language specifically clarifies unless modified for technical reasons. the intent of the rule that ATM Administrator, Agricultural Marketing Accordingly, your comments will not be Service. operators may provide a notice that a fee edited to remove any identifying or may be imposed if there are [FR Doc. 05–16981 Filed 8–23–05; 11:52 am] contact information. Public comments circumstances in which an ATM fee BILLING CODE 3410–02–P may also be viewed electronically or in will not be charged for a particular paper in Room MP–500 of the Board’s transaction, such as where the card has Martin Building (20th and C Streets, been issued by a foreign bank or the FEDERAL RESERVE SYSTEM NW.) between 9 a.m. and 5 p.m. on card issuer has entered into a weekdays. 12 CFR Part 205 contractual relationship with the ATM FOR FURTHER INFORMATION CONTACT: Ky operator regarding surcharges. [Regulation E; Docket No. R–1234] Tran-Trong, Senior Attorney, or Daniel Section 205.16 does not require that G. Lonergan, David A. Stein, Natalie E. Electronic Fund Transfers any sign be posted if no fee is charged Taylor or John C. Wood, Counsels, to the consumer by the ATM operator. AGENCY: Board of Governors of the Division of Consumer and Community The rule is intended to allow consumers Federal Reserve System. Affairs, Board of Governors of the to identify immediately ATMs that ACTION: Proposed rule; official staff Federal Reserve System, Washington, generally charge a fee for use. It is not interpretation. DC 20551, at (202) 452–2412 or (202) intended to represent a complete 452–3667. For users of disclosure to the consumer regarding SUMMARY: The Board is publishing for Telecommunications Device for the Deaf the fees associated with the particular comment a proposal to amend (TDD) only, contact (202) 263–4869. type of transaction the consumer seeks Regulation E, which implements the SUPPLEMENTARY INFORMATION: to conduct. Rather, a more detailed
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49892 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
disclosure of whether in fact a fee will the ATM that a fee ‘‘will’’ be imposed be imposed. The commenter also be charged for the type of transaction in all instances could be overly broad challenged industry commenters’ contemplated by the consumer and the with respect to consumers who would characterizations regarding common amount of the fee is required to be made not be assessed a fee for usage of the industry practice at the time the either on the ATM screen or on an ATM ATM. amendments were adopted, stating that receipt before the transaction is In September 2004, as part of an existing practice of many ATM completed. See § 205.16(c). update to Regulation E, the Board operators at the time was to post signs proposed to revise comment on the machines stating that a fee will III. Section-by-Section Analysis of the 205.16(b)(1)–1 to clarify that ATM be imposed for cash withdrawals. Proposed Revisions operators may disclose on the ATM The Board continues to believe that a Section 205.16 Disclosures at signage that a fee may be imposed or literal interpretation of the current rule Automated Teller Machines may specify the type of EFTs or could lead to overly broad disclosures of consumers for which a fee is imposed, an ATM operator’s surcharge practices Under section 904(d) of the EFTA, as if there are circumstances in which an where some consumers would not be amended by the Gramm-Leach-Bliley ATM surcharge will not be charged for assessed a fee for usage of the ATM, and Act of 1999 (GLB Act), an ATM operator a particular transaction. See 69 FR that a reasonable interpretation of the that imposes a fee on any consumer for 55996, 56005 (September 17, 2004). The statute and regulation would allow providing EFT services is required to Board’s proposal acknowledged that a ATM operators to provide an alternative provide notice of the fee to the strict requirement to post a notice that disclosure that a fee ‘‘may’’ be imposed consumer in a prominent and a fee will be imposed in all instances to avoid potential consumer confusion. conspicuous location on or at the ATM Upon further analysis and after 1 could result in an inaccurate disclosure on which the EFT is initiated. An ATM of the ATM operators’ surcharge consideration of the comments received, operator is any person who operates an practices and is not mandated by the however, the Board believes it would be ATM at which consumers initiate an current language in § 205.16. appropriate to make this clarification in EFT or a balance inquiry, and that does Industry commenters overwhelmingly the regulation rather than in the not hold the account to or from which agreed with the Board’s proposal, commentary. Therefore, the Board is the transfer is made, or about which an stating that the proposed staff withdrawing its proposed commentary inquiry is made. See EFTA commentary was consistent with revisions addressing this issue and is 904(d)(3)(D)(i); § 205.16(a). In addition sections 904(d)(3)(A) and (B) of the instead proposing to exercise its to posting notice of the fee on or at the EFTA, and would help ATM operators authority under section 904(a) of the ATM, the ATM operator must also more accurately disclose their EFTA to amend both the regulation and disclose that a fee will be imposed and surcharging practices. Industry the commentary. A re-proposal allows the amount of the fee, either on the commenters cited a press release issued the Board to elicit additional comments screen of the ATM or on a paper notice, by the original act’s sponsor, Rep. Marge to better understand ATM disclosure before the consumer is committed to Roukema, stating that the act ‘‘simply practices, both at the time of the passage completing the transaction. These puts existing practice into law.’’ 2 of the GLB Act and currently. requirements are implemented in According to these commenters, the As proposed, § 205.16(b) would be § 205.16 of Regulation E. See 66 FR common practice of many banks at the revised to explicitly clarify that ATM 13409 (March 6, 2001). time of the ATM surcharge amendments operators may disclose in all cases that Several large institutions have asked was to state that a fee may be imposed. a fee will be imposed, or in the whether it is permissible under § 205.16 Consumer groups believed that a alternative, disclose that a fee may be to provide notice on the ATM that a fee general statement on ATM signage that imposed on consumers initiating an EFT ‘‘may be’’ charged for providing EFT a fee ‘‘may’’ be imposed could or a balance inquiry if there are services, because many ATM operators, significantly weaken consumer notice, circumstances under which some in particular those owned or operated and that the current staff commentary consumers would not be charged for by banks, apply ATM surcharges to permitting ATM operators to specify the such services. Before an ATM operator some categories of their ATM users, but type of EFTs for which a fee is imposed may impose an ATM fee on a consumer not others. For example, an ATM provides sufficient flexibility to address for initiating an electronic fund transfer operator might not charge a fee to concerns about overbroad ATM signage or a balance inquiry, the ATM operator cardholders of foreign banks, disclosures. A consumer rights attorney must provide to the consumer notice, cardholders whose card issuer has stated that a disclosure that an ATM fee either on-screen or via paper receipt, entered into a special contractual ‘‘may’’ be imposed is too general to be that an ATM fee will be imposed and relationship with the ATM operator useful, and further asserted that the the amount of the fee, and the consumer with respect to surcharges, and persons Congress intended that ATM signs must must elect to continue the transaction or who carry cards that are issued under state that a fee will be charged whenever inquiry after receiving such notice. See electronic benefit transfer governmental there is a possibility that a surcharge § 205.16(e). Comment 16(b)(1)–1 would programs. (While many financial will be imposed on any consumer. This be revised to reflect the proposed rule, institutions do not impose ATM commenter believed that section 904(d) and to clarify that ATM operators that surcharges on their own cardholders, of the EFTA did not provide a basis for impose an ATM surcharge in all cases they are not ATM operators with respect ATM operators to avoid providing must provide notice on the ATM to those cardholders for purposes of notice on ATM signage to consumers to signage that a fee will be charged. Comment is solicited on the current § 205.16 because the institutions hold whom a fee would be imposed even if disclosure practices of ATM operators the cardholders’ accounts.) Also, an some consumers would not have a fee that impose surcharges on some, but not ATM operator might charge a fee for imposed or if there are other all, consumers. Under what types of cash withdrawals, but not for balance transactions for which a fee would not inquiries. As a result, a disclosure on circumstances might an ATM operator 2 Banking Committee OKs Roukema ATM Fee not impose a surcharge for providing 1 Pub. L. 106–102, § 702, 113 Stat. 1338, 1463–64 Disclosure (March 10, 1999), http:// electronic transfer services or (1999). financialservices.house.gov/banking/31099rou.htm. responding to balance inquiries? If
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49893
surcharges are not imposed on all disclosure of terms and conditions of an Budget (OMB). The proposed rule consumers, how do ATM operators EFT service; documentation of contains requirements subject to the disclose their surcharge practices? What electronic transfers by means of PRA. The collection of information that adverse impact on consumers, if any, terminal receipts and periodic is required by this proposed rule is might result from a disclosure that states statements; limitations on consumer found in 12 CFR 205.16(c) and in that an ATM surcharge will be imposed liability for unauthorized transfers; Appendix A. The Federal Reserve may when the operator’s practice is not to procedures for error resolution; and not conduct or sponsor, and an impose a surcharge on certain certain rights related to preauthorized organization is not required to respond consumers? Conversely, what adverse EFTs. The Act and regulation also to, this information collection unless it impact on consumers who are charged prescribe restrictions on the unsolicited displays a currently valid OMB control an ATM fee, if any, might result if ATM issuance of ATM cards and other access number. The OMB control number is signage states that a fee may be devices. The EFTA authorizes the Board 7100–0200. This information is required imposed? In addition, comment is to prescribe regulations to carry out the to obtain a benefit for consumers and is solicited on disclosure practices of ATM purpose and provisions of the statute. mandatory (15 U.S.C. 1693 et seq.). The operators with respect to surcharges at 15 U.S.C. 1693b(a). The Act expressly respondents/recordkeepers are for-profit the time the GLB Act was passed. states that the Board’s regulations may financial institutions, including small contain ‘‘such classifications, IV. Form of Comment Letters businesses. Institutions are required to differentiations, or other provisions, retain records for 24 months. Comment letters should refer to * * * as, in the judgment of the Board, All depository institutions, of which Docket No. R–1234 and, when possible, are necessary or proper to carry out the there are approximately 19,300, should use a standard typeface with a purposes of [the Act], to prevent potentially are affected by this font size of 10 or 12; this will enable the circumvention or evasion [of the act], or collection of information because all Board to convert text submitted in paper to facilitate compliance [with the Act].’’ depository institutions are potential form to machine-readable form through 15 U.S.C. 1693b(c). The Act also states ATM operators subject to Regulation E electronic scanning, and will facilitate that ‘‘[i]f electronic fund transfer and are required to provide notice to automated retrieval of comments for services are made available to consumers of an ATM surcharge, and review. Comments may be mailed consumers by a person other than a thus are respondents for purposes of the electronically to financial institution holding a PRA. However, the extent to which this [email protected]. consumer’s account, the Board shall by collection of information affects a regulation assure that the disclosures, V. Solicitation of Comments Regarding particular depository institution protections, responsibilities, and the Use of ‘‘Plain Language’’ depends on the number of ATMs an remedies created by [the Act] are made institution operates. Section 722 of the Gramm-Leach- applicable to such persons and The proposed revision is not expected Bliley Act of 1999 requires the Board to services.’’ 15 U.S.C. 1693b(d). The to significantly increase the ongoing use ‘‘plain language’’ in all proposed Board believes that the proposed annual burden of Regulation E; rather and final rules published after January revisions to Regulation E discussed this would be a one-time burden 1, 2000. The Board invites comments on above are within the Congress’ broad increase for those institutions that, whether the proposed rules are clearly grant of authority to the Board to adopt although not required, decide to revise stated and effectively organized, and provisions that carry out the purposes of their ATM signage disclosures. For how the Board might make the proposed the statute. purposes of the PRA, the Federal text easier to understand. 2. Small entities affected by the Reserve estimates that it would take proposal. The number of small entities VI. Initial Regulatory Flexibility depository institutions, on average, 8 affected by this proposal is unknown. Analysis hours (one business day) to revise and ATM operators that do not impose ATM update ATM signage; therefore, the In accordance with section 3(a) of the surcharges in all instances would be Federal Reserve estimates that the total Regulatory Flexibility Act, the Board permitted to disclose that surcharges annual burden for all depository has reviewed the proposed amendments may be disclosed on signage appearing institutions for this requirement would to Regulation E. A final regulatory on ATMs. ATM operators that choose to be 154,400 hours. With respect to the flexibility analysis will be conducted make the proposed alternative 1,289 Federal Reserve-regulated after consideration of comments disclosure may have to revise their signs institutions which must comply with received during the public comment on their ATMs. period. 3. Other Federal rules. The Board Regulation E, it is estimated that the 1. Statement of the objectives of the believes no Federal rules duplicate, total annual burden for this requirement proposal. The Board is proposing overlap, or conflict with the proposed would be 10,312 hours. revisions to Regulation E to allow ATM revisions to Regulation E. The preceding estimate represents an operators flexibility to disclose that 4. Significant alternatives to the average across all respondents and ATM surcharges will or may be imposed proposed revisions. The Board reflect variations between institutions on consumers initiating an EFT or a welcomes comment on any significant based on their size, complexity, and balance inquiry when there are alternatives that would minimize the practices. The other federal agencies are circumstances under which such impact of the proposed rule on small responsible for estimating and reporting surcharges will not be charged. entities. to OMB the total paperwork burden for The EFTA was enacted to provide a the institutions for which they have basic framework establishing the rights, VII. Paperwork Reduction Act administrative enforcement authority. liabilities, and responsibilities of In accordance with the Paperwork They may, but are not required to, use participants in electronic fund transfer Reduction Act (PRA) of 1995 (44 U.S.C. the Federal Reserve’s burden estimates. systems. The primary objective of the 3506; 5 CFR part 1320 Appendix A.1), Because the records would be EFTA is the provision of individual the Board reviewed the proposed rule maintained at state member banks and consumer rights. 15 U.S.C. 1693. The under the authority delegated to the the notices are not provided to the EFTA and Regulation E require Board by the Office of Management and Federal Reserve, no issue of
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49894 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
confidentiality arises under the (1) Provide notice that a fee will be By order of the Board of Governors of the Freedom of Information Act. imposed for providing electronic fund Federal Reserve System, August 19, 2005. Comments are invited on: (a) Whether transfer services or a balance inquiry; Robert deV. Frierson, the proposed collection of information and Deputy Secretary of the Board. is necessary for the proper performance (2) Disclose the amount of the fee. [FR Doc. 05–16801 Filed 8–24–05; 8:45 am] of the Federal Reserve’s functions; BILLING CODE 6210–01–P including whether the information has (c) Notice requirement. An automated practical utility; (b) the accuracy of the teller machine operator must comply Federal Reserve’s estimate of the burden with the following: DEPARTMENT OF THE TREASURY of the proposed information collection, (1) On the machine. Post øthe notice including the cost of compliance; (c) required by paragraph (b)(1) of this Internal Revenue Service ways to enhance the quality, utility, and section¿ in a prominent and clarity of the information to be conspicuous location on or at the 26 CFR Part 1 collected; and (d) ways to minimize the automated teller machine fl a notice [REG–129782–05] burden of information collection on that: respondents, including through the use RIN 1545–BE71 of automated collection techniques or (i) A fee will be imposed for providing other forms of information technology. electronic fund transfer services or a Special Rule Regarding Certain Comments on the collection of balance inquiry; or Section 951 Pro Rata Share Allocations information should be sent to Michelle (ii) A fee may be imposed for AGENCY: Internal Revenue Service (IRS), Long, Federal Reserve Board Clearance providing electronic fund transfer Treasury. Officer, Division of Research and services or a balance inquiry, but this ACTION: Notice of proposed rulemaking. Statistics, Mail Stop 41, Board of notice may be substituted only if there Governors of the Federal Reserve are circumstances under which a fee SUMMARY: This document contains System, Washington, DC 20551, with will not be imposed for such servicesfi; proposed amendments to regulations under section 951(a) of the Internal copies of such comments sent to the and Office of Management and Budget, Revenue Code (Code) regarding a United Paperwork Reduction Project (7100– (2) Screen or paper notice. Provide States shareholder’s pro rata share of a 0200), Washington, DC 20503. the notice required by paragraphs (b)(1) controlled foreign corporation’s (CFC’s) and (b)(2) of this section either by subpart F income, previously excluded Text of Proposed Revisions showing it on the screen of the subpart F income withdrawn from Certain conventions have been used automated teller machine or by investment in less developed countries, to highlight the proposed changes to the providing it on paper, before the and previously excluded subpart F text of the regulation and staff consumer is committed to paying a fee. income withdrawn from foreign base commentary. New language is shown 2. In Supplement I to part 205, under country shipping operations. These inside bold-faced arrows, while Section 205.16—Disclosures at proposed regulations are intended to language that would be deleted is set off Automated Teller Machines, under ensure that a CFC’s earnings and profits with bold-faced brackets. Comments are for a taxable year attributable to a 16(b) General, under Paragraph 16(b)(1), numbered to comply with Federal section 304 transaction will not be paragraph 1. would be revised. Register publication rules. allocated in a manner that results in the List of Subjects in 12 CFR Part 205 SUPPLEMENT I TO PART 205— avoidance of Federal income tax. These OFFICIAL STAFF INTERPRETATIONS proposed regulations are also intended Consumer protection, Electronic fund to ensure that earnings and profits of a transfers, Federal Reserve System, * * * * * CFC are not allocated to certain Reporting and recordkeeping Section 205.16—Disclosures on preferred stock in a manner inconsistent requirements. Automated Teller Machines with the economic interest that such For the reasons set forth in the stock represents. preamble, the Board proposes to amend 1. Specific notices. An ATM operator DATES: Written or electronic comments 12 CFR part 205 and the Official Staff that imposes a fee for a specific type of and requests for a public hearing must Commentary, as follows: transactionfl—fi such as flforfi a be received by October 24, 2005. cash withdrawal, but not fl for fia ADDRESSES: Send submissions to: PART 205—ELECTRONIC FUND balance inquiry, fl or for some cash TRANSFERS (REGULATION E) CC:PA:LPD:PR (REG–129782–05), room withdrawals (such as where the card 5203, Internal Revenue Service, POB 1. The authority citation for part 205 was issued by a foreign bank or by a 7604, Ben Franklin Station, Washington, would continue to read as follows: card issuer that has entered into a DC 20044. Submissions may be hand Authority: 15 U.S.C. 1693b. special contractual relationship with the delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. 2. Section 205.16 would be amended ATM operator regarding surcharges), but to: CC:PA:LPD:PR (REG–129782–05), by republishing paragraph (b) and not for others—fi may provide a ø ¿ Courier’s Desk, Internal Revenue revising paragraph (c)(1) as follows: general statement fl notice fi on or at the ATM machine fi that a fee will Service, 1111 Constitution Avenue, § 205.16 Disclosures on automated teller fl or may fi be imposed for providing NW., Washington, DC, or sent machines. EFT services or may specify the type of electronically, via the IRS Internet site * * * * * EFT for which a fee is imposed. fl If, at http://www.irs.gov/regs or via the (b) General. An automated teller however, a fee will be imposed in all Federal eRulemaking Portal athttp:// machine operator that imposes a fee on instances, the notice must state that a www.regulations.gov (IRS and REG– a consumer for initiating an electronic fee will be imposed.fi 129782–05). fund transfer or a balance inquiry FOR FURTHER INFORMATION CONTACT: shall— * * * * * Concerning the proposed regulations,
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49895
Jefferson VanderWolk, (202) 622–3810; permit the allocation of earnings and is to avoid Federal income taxation by concerning submissions of comments profits between different classes of stock allocating the subpart F income and requests for a public hearing, Robin (e.g., common stock and preferred stock) resulting from the section 304 Jones, (202) 622–3521 (not toll-free in a manner inconsistent with the transaction disproportionately to a tax- numbers). economic interests in the CFC indifferent party. Pursuant to the rule, SUPPLEMENTARY INFORMATION: represented by the respective classes of such earnings and profits will be stock. The IRS and Treasury Department allocated to each class of stock of the Background believe that such allocations are CFC in accordance with the value of This document contains proposed inconsistent with the policies such class relative to all other classes. amendments to 26 CFR part 1 under underlying subpart F. These proposed In the absence of the special rule, the section 951(a) of the Code relating to the regulations would provide additional current earnings and profits of a CFC determination of a United States guidance to ensure results that are having a class of preferred stock with a shareholder’s pro rata share of a CFC’s consistent with such economic interests. fixed return and a class of common Responding to regulations proposed subpart F income, previously excluded stock would be allocated under the under section 951 on August 6, 2004, subpart F income withdrawn from general rule on the basis of a and published in final form in this issue investment in less developed countries, hypothetical distribution. Thus, the of the Federal Register (REG–129771– and previously excluded subpart F preferred stock would receive an 04), a commentator observed that U.S. income withdrawn from foreign base allocation equal to the amount of the country shipping operations. shareholders of CFCs sometimes have caused mandatorily redeemable fixed return on the total investment in In general, section 951(a)(1) requires a such stock, and the common stock United States shareholder that owns preferred stock with cumulative dividend rights to be issued to (or would receive an allocation of the stock in a CFC to include its pro rata remainder of the earnings and profits. share of such amounts in its gross otherwise acquired by) foreign persons. Relying on the fact that the hypothetical This result would not reflect the actual income. Pro rata share is defined in economic interest in the CFC of the section 951(a)(2) of the Code as the distribution rule does not take into account the time value of money, the respective classes of stock in a case amount: where the earnings and profits were (A) Which would have been parties in these transactions provide a relatively high dividend rate on such artificially inflated as a result of the distributed with respect to the stock dividend arising from the section 304 which such shareholder owns (within stock but forego compounding on the accrued but unpaid dividends, which transaction. The amount allocated to the the meaning of section 958(a)) in such preferred stock in such a case under the corporation if on the last day in its would generally be required in an arms’ length transaction. This would general rule would be a significantly taxable year on which the corporation is smaller percentage of the total than the a [CFC] it had distributed pro rata to its inappropriately deflect subpart F income inclusions with respect to the percentage of the corporation’s value shareholders an amount which bears the represented by the preferred stock. same ratio to its subpart F income for U.S. shareholder’s stock in the CFC. To the taxable year, as the part of such year address this concern, the proposed This is illustrated by the example that during which the corporation is a [CFC] regulations provide a special allocation would be added to § 1.951–1(e)(6) by bears to the entire year, reduced by rule for such stock which would these proposed regulations. By (B) The amount of distributions appropriately discount the amount of modifying the allocation of earnings and received by any other person during earnings and profits allocated to the profits to classes of stock in this limited such year as a dividend with respect to preferred stock in annual hypothetical category of cases, the proposed such stock, but only to the extent of the distributions. regulations ensure that the allocation will be consistent with the economic dividend which would have been Explanation of Provisions received if the distribution by the interest in the CFC represented by the corporation had been the amount which A. Earnings and Profits From Certain respective classes of stock. Section 304 Transactions bears the same ratio to the subpart F B. Certain Cumulative Preferred Stock income of such corporation for the Section 1.951–1(e) defines pro rata taxable year, as the part of such year share for purposes of section 951(a) of Proposed § 1.951–1(e)(4)(ii) would during which such shareholder did not the Code. Proposed § 1.951–1(e)(3)(v) add a special rule that would determine own (within the meaning of section adds a special rule that would modify the hypothetical distribution of earnings 958(a)) such stock bears to the entire the general rule of § 1.951–1(e)(3)(i) and profits with respect to cumulative year. regarding the allocation of a CFC’s preferred stock with a mandatory A CFC’s earnings and profits are current earnings and profits to more redemption date by reflecting the allocated among different classes of the than one class of stock. The general rule present value of accrued but unpaid CFC’s stock for the purpose of provides for the allocation of current dividends with respect to such stock, determining the pro rata share of the earnings and profits to different classes determined generally on the basis of the CFC’s subpart F income or withdrawal of stock on the basis of the respective implied annual rate of return on such of previously excluded subpart F amounts of such earnings and profits stock and the length of time between the income of a United States shareholder of that would be distributed with respect current year’s hypothetical distribution such CFC under § 1.951–1(e). The IRS to each class if such earnings and profits date and the mandatory redemption and Treasury Department are aware of were distributed on the last day of the date. This special rule would apply only certain transactions in which a CFC’s CFC’s taxable year on which it is a CFC. if the rate of compounding on the earnings and profits and subpart F The special rule applies where a CFC accrued but unpaid cumulative income for a taxable year are increased has earnings and profits and subpart F dividends would be less than the by a deemed dividend arising from a income for its taxable year attributable appropriate applicable Federal rate and transaction described in section 304, to a transaction described in section 304 if a distribution on the stock would not with respect to which taxpayers take the of the Code and that transaction is part be included in the gross income of a position that the current regulations of a plan a principal purpose of which United States taxpayer.
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49896 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
Proposed Effective Dates the Office of the Associate Chief (A) A distribution with respect to Sections 1.951–1(e)(3)(v) and 1.951– Counsel (International). However, other such stock on the hypothetical 1(e)(4)(ii) are proposed to apply for personnel from the IRS and Treasury distribution date would not be taxable years of a controlled foreign Department participated in their includible in the gross income of a corporation beginning on or after development. citizen or individual resident of the United States, a domestic corporation, January 1, 2006. List of Subjects in 26 CFR Part 1 or a foreign person as income effectively Special Analyses Income taxes, Reporting and connected with such foreign person’s It has been determined that this notice recordkeeping requirements. conduct of a trade or business in the of proposed rulemaking is not a Proposed Amendments to the United States; and significant regulatory action as defined Regulations (B) Any dividends accruing with in Executive Order 12866. Therefore, a respect to such stock during the taxable regulatory assessment is not required. It Accordingly, 26 CFR part 1 is year of the controlled foreign has also been determined that section proposed to be amended as follows: corporation have not been paid during 553(b) of the Administrative Procedure such taxable year (accrued but unpaid PART 1—INCOME TAXES Act (5 U.S.C. chapter 5) does not apply dividends), the amount of earnings and to these regulations and because these Par. 1. The authority citation for part profits that shall be considered to be regulations do not impose a collection 1 continues to read, in part, as follows: distributed as part of the hypothetical distribution for purposes of paragraph of information on small entities, a Authority: 26 U.S.C. 7805 * * *. Regulatory Flexibility Analysis under (e)(3)(i) of this section with respect to the Regulatory Flexibility Act (5 U.S.C. Par. 2. Section 1.951–1 is amended by such stock shall be equal to the present chapter 6) does not apply. Pursuant to revising paragraphs (e)(3)(v), (e)(4)(ii), value of such accrued but unpaid section 7805(f) of the Code, this notice (e)(6) Example 9, and (e)(7). dividends for the taxable year. The of proposed rulemaking will be The revisions read as follows: present value of such accrued but submitted to the Chief Counsel for § 1.951–1 Amounts included in gross unpaid dividends for the taxable year is Advocacy of the Small Business income of United States shareholders. determined for the purposes of this Administration for comment on its paragraph by discounting such accrued * * * * * impact on small business. (e) * * * but unpaid dividends for that taxable year from the mandatory redemption Comments and Requests for Public (3) * * * Hearing (v) Earnings and profits attributable to date to the hypothetical distribution date using the implied annual rate of Before these proposed regulations are certain section 304 transactions. For taxable years of a controlled foreign return on an investment at par in a share adopted as final regulations, of such stock that is held from the date consideration will be given to any corporation beginning on or after January 1, 2006, if a controlled foreign of issue until the mandatory redemption written (a signed original and eight (8) date, on the assumption that no copies) or electronic comments that are corporation has more than one class of stock outstanding and the corporation dividends with respect to the stock are submitted timely to the IRS. The IRS paid prior to redemption. and Treasury Department specifically has earnings and profits and subpart F income for a taxable year attributable to * * * * * request comments regarding appropriate (6) * * * rules for determining under section 951 a transaction described in section 304, and such transaction is part of a plan a Example 9. (i) Facts. In 2006, FC10, a the hypothetical distribution of earnings controlled foreign corporation within the and profits for cumulative preferred principal purpose of which is the meaning of section 957(a), has outstanding stock that does not have a mandatory avoidance of Federal income taxation, 100 shares of common stock and 100 shares redemption date, or that is subject to a the amount of such earnings and profits of 6-percent, voting, preferred stock with a shareholder-level agreement, such as a allocated to any one class of stock shall par value of $10x per share. All of the purchase option, to take into account be that amount which bears the same common stock is held by Corp H, a foreign the present value of accrued but unpaid ratio to the remainder of such earnings corporation which invested $1000x in FC10 and profits as the value of all shares of in exchange for the common stock. All of dividends. The IRS and Treasury FC10’s preferred stock is held by Corp J, a Department contemplate that if such class of stock, determined on the domestic corporation which invested $1000x promulgated, such rules would be hypothetical distribution date, bears to in FC10 in exchange for the FC10 preferred effective for taxable years of a controlled the total value of all shares of all classes stock. The value of the common stock of foreign corporation beginning on or after of stock of the corporation, determined FC10 at all relevant times is $1000x and the January 1, 2006. on the hypothetical distribution date. value of the preferred stock of FC10 at all The IRS and Treasury Department (4) * * * (i) * * * relevant times is also $1000x. In 2006, FC10 also request comments on the clarity of (ii) Certain cumulative preferred borrows $3000x from a bank and invests $5000x in preferred stock issued by FC11, a the proposed rules and how they can be stock. For taxable years of a controlled foreign corporation beginning on or after foreign corporation owned by Corp J. FC11, made easier to understand. All which has no current or accumulated comments will be available for public January 1, 2006, if a controlled foreign earnings and profits, uses the proceeds to inspection and copying. A public corporation has one or more classes of lend $5000x to Corp J. In 2008, FC10 sells the hearing will be scheduled if requested preferred stock with a mandatory FC11 preferred stock to FC12, a wholly in writing by any person who timely redemption date and cumulative owned foreign subsidiary of FC11 that has submits written comments. If a public dividend rights, arrearages on which $5000x of accumulated earnings and profits, hearing is scheduled, notice of the date, compound at a rate less than an annual for $5000x in a transaction described in section 304. FC10 repays the bank loan in time, and place of the hearing will be compounding at the applicable Federal rate (as defined in section 1274(d)(1)) full. The acquisition and sale of the FC11 published in the Federal Register. preferred stock by FC10 was part of a plan (AFR) that applies on the date the stock Drafting Information a principal purpose of which was the is issued for the term from such issue avoidance of Federal income tax. For 2008, The principal author of these date to the mandatory redemption date, FC10 has $5000x of earnings and profits, all regulations is Jefferson VanderWolk of then, to the extent that— of which is subpart F income attributable to
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49897
a deemed dividend arising from FC10’s sale 5203, Internal Revenue Service, POB plan qualified under section 401(a) and of the FC11 preferred stock to FC12. 7604, Ben Franklin Station, Washington, designed to invest primarily in (ii) Analysis. FC10 has $5000x of earnings DC 20044. Submissions may be hand- qualifying employer securities. Section and profits for 2008 attributable to a dividend 4975(e)(8) states that the term qualifying from a section 304 transaction which was delivered Monday through Friday part of a plan a principal purpose of which between the hours of 8 a.m. and 4 p.m. employer security means any employer was the avoidance of Federal income to: CC:PA:LPD:PR (REG–133578–05), security within the meaning of section taxation. Under paragraph (e)(3)(v) of this Courier’s Desk, Internal Revenue 409(l). Section 409(l) generally provides section, these earnings and profits are Service, 1111 Constitution Avenue, that the term employer security means allocated to the common and preferred stock NW., Washington, DC. Alternatively, common stock issued by the employer of FC10 in accordance with the relative value taxpayers may submit comments (or a corporation that is a member of the of each class of stock. Thus, for taxable year electronically directly to the IRS same controlled group) that is readily 2008, $2500x is allocated to FC10’s common tradable on an established securities stock and $2500x is allocated to its preferred Internet site at http://www.irs.gov/regs, stock. or via the Federal eRulemaking Portal at market, if the corporation (or a member http://www.regulations.gov (IRS–REG– of the controlled group) has common (7) Effective dates. Except as provided 133578–05). stock that is readily tradable on an in paragraphs (e)(3)(v) and (e)(4)(ii) of FOR FURTHER INFORMATION CONTACT: established securities market. Section this section, this paragraph (e) applies 409(l)(4)(A) provides that, for purposes for taxable years of a controlled foreign Concerning the regulations, John T. Ricotta at (202) 622–6060 with respect of section 409(l), the term controlled corporation beginning on or after group of corporations has the meaning January 1, 2005. * * * to section 404(k) or Martin Huck at (202) 622–7750 with respect to section 162(k); given to that term by section 1563(a) * * * * * concerning submission of comments or (determined without regard to subsections (a)(4) and (e)(3)(C) of Mark E. Matthews, to request a public hearing, Robin Jones at (202) 622–7180 (not toll-free section 1563). Section 409(l)(4)(B) Deputy Commissioner for Services and provides that, for purposes of section Enforcement. numbers). 409(l)(4)(A), if a common parent owns [FR Doc. 05–16610 Filed 8–24–05; 8:45 am] SUPPLEMENTARY INFORMATION: directly stock possessing at least 50 BILLING CODE 4830–01–P Background and Explanation of percent of the voting power of all Provisions classes of stock and at least 50 percent of each class of nonvoting stock in a first DEPARTMENT OF THE TREASURY This document contains proposed tier subsidiary, such subsidiary (and all regulations under sections 162(k) and Internal Revenue Service corporations below it in the chain 404(k) of the Internal Revenue Code which would meet the 80 percent test of (Code). These regulations address two 26 CFR Part 1 section 1563(a) if the first tier subsidiary issues that have arisen in the were the common parent) are treated as [REG–133578–05] application of these sections. The first includible corporations. issue arises in a case in which the RIN 1545–BE74 Section 404(k)(2), for taxable years applicable employer securities held in beginning on or after January 1, 2002, Dividends Paid Deduction for Stock an employee stock ownership plan generally provides that the term Held in Employee Stock Ownership (ESOP) are not securities of the applicable dividend means any Plan corporation or corporations that dividend which, in accordance with the maintain the plan. The issue is which plan provisions—(i) is paid in cash to AGENCY: Internal Revenue Service (IRS), corporation is entitled to the deduction the participants in the plan or their Treasury. under section 404(k) for certain beneficiaries, (ii) is paid to the plan and ACTION: Notice of proposed rulemaking. dividends paid with respect to the stock is distributed in cash to participants in held in the ESOP. The second issue is the plan or their beneficiaries not later SUMMARY: This document contains whether payments in redemption of than 90 days after the close of the plan proposed regulations under sections stock held by an ESOP are deductible. year in which paid, (iii) is, at the 162(k) and 404(k) of the Internal election of such participants or their Revenue Code (Code) relating to Code and Regulations beneficiaries—(I) payable as provided in employee stock ownership plans Section 404(a) provides that clause (i) or (ii), or (II) paid to the plan (ESOPs). The regulations provide contributions paid by an employer to or and reinvested in qualifying employer guidance concerning which corporation under a stock bonus, pension, profit securities, or (iv) is used to make is entitled to the deduction for sharing, or annuity plan are deductible payments on a loan described in section applicable dividends under section under section 404(a), if they would be 404(a)(9), the proceeds of which were 404(k). These regulations also clarify otherwise deductible, within the used to acquire the employer securities that a payment in redemption of limitations of that section. Section (whether or not allocated to employer securities held by an ESOP is 404(k)(1) provides that, in the case of a participants) with respect to which the not deductible. These regulations will C corporation, there is allowed as a dividend is paid. Under section affect administrators of, employers deduction for a taxable year the amount 404(k)(4), the deduction is allowable in maintaining, participants in, and of any applicable dividend paid in cash the taxable year of the corporation in beneficiaries of ESOPs. In addition, they by such corporation during the taxable which the dividend is paid or will affect corporations that make year with respect to applicable distributed to a participant or distributions in redemption of stock employer securities held by an ESOP. beneficiary. held in an ESOP. The deduction under section 404(k) is Prior to 2002, section 404(k)(5)(A) DATES: Written or electronic comments in addition to the deductions allowed provided that the Secretary may and requests for a public hearing must under section 404(a). disallow the deduction under section be received by November 23, 2005. Section 4975(e)(7) provides, in 404(k) for any dividend if the Secretary ADDRESSES: Send submissions to: relevant part, that an ESOP is a defined determines that such dividend CC:PA:LPD:PR (REG–133578–05), room contribution plan that is a stock bonus constitutes, in substance, an evasion of
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49898 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
taxation. Section 662(b) of the Economic by an ESOP that are used to make once for the value of the stock originally Growth and Tax Relief Reconciliation benefit distributions to participants or contributed to the ESOP and again for Act of 2001 (115 Stat. 38, 2001) beneficiaries, including distributions of the amount paid to redeem the same amended section 404(k)(5)(A) to provide a participant’s account balance upon stock. See Charles Ilfeld Co. v. that the Secretary may disallow a severance from employment. These Hernandez, 292 U.S. 62 (1934). deduction under section 404(k) for any taxpayers have argued that the Moreover, despite the Ninth Circuit’s dividend the Secretary determines payments in redemption qualify as conclusion in Boise Cascade, the IRS constitutes, in substance, an avoidance dividends under sections 301 and 316 and Treasury Department continue to or evasion of taxation. The amendment and, therefore, are deductible under believe that, even if a payment in is effective for tax years after December section 404(k). redemption of stock held by an ESOP 31, 2001. In Rev. Rul. 2001–6 (2001–1 C.B. 491), were to qualify as an applicable Section 162(k)(1) generally provides the IRS concluded that section 162(k) dividend, section 162(k) would disallow that no deduction otherwise allowable bars a deduction for payments made in a deduction for that amount because under chapter 1 of the Code is allowed redemption of stock from an ESOP. This such payment would be in connection for any amount paid or incurred by a conclusion was based on the fact that with the reacquisition of the corporation in connection with the section 162(k)(1) disallows a deduction corporation’s stock. reacquisition of its stock or the stock of for payments paid in connection with This notice of proposed rulemaking, any related person (as defined in section the reacquisition of an issuer’s stock and therefore, includes proposed regulations 465(b)(3)(C)). The legislative history of that the redemption payments are such under section 404(k) that confirm that section 162(k) states that the phrase ‘‘in payments. The IRS also concluded that payments made to reacquire stock held connection with’’ is ‘‘intended to be such payments were not applicable by an ESOP are not deductible under construed broadly.’’ H.R. Conf. Rep. No. dividends under section 404(k)(1). The section 404(k) because such payments 99–841, at 168 (1986). IRS reasoned that allowing a deduction do not constitute applicable dividends for redemption amounts would vitiate under section 404(k)(2) and a deduction Corporation Entitled to Section 404(k) important rights and protections for for such payments would constitute, in Deduction recipients of ESOP distributions, substance, an avoidance or evasion of An ESOP may benefit employees of including the right to reduce taxes by taxation within the meaning of section more than one corporation. In addition, utilizing the return of basis provisions 404(k)(5). It also includes proposed an ESOP may be maintained by a under section 72, the right to make regulations under section 162(k) that corporation other than the payor of a rollovers of ESOP distributions received provide that section 162(k), subject to dividend. In these cases, the issue arises upon separation from service, and the certain exceptions, disallows any as to which entity is entitled to the protection against involuntary cash- deduction for amounts paid or incurred deduction provided under section outs. Finally, the IRS stated that a by a corporation in connection with the 404(k). Assume, for example, that a deduction under section 404(k)(1) for reacquisition of its stock or the stock of publicly traded corporation owns all of such amounts would constitute, in any related person (as defined in section the stock of a subsidiary. The subsidiary substance, an evasion of tax. 465(b)(3)(C)). The proposed regulations operates a trade or business with In Boise Cascade Corporation v. also provide that amounts paid or employees in the U.S. and maintains an United States, 329 F.3d 751 (9th Cir. incurred in connection with the ESOP that holds stock of its parent for 2003), the Court of Appeals for the reacquisition of stock include amounts its employees. If the parent distributes Ninth Circuit held that payments made paid by a corporation to reacquire its a dividend with respect to its stock held by a corporation to redeem its stock stock from an ESOP that are then in the ESOP maintained by the held by its ESOP were deductible as distributed by the ESOP to its subsidiary, questions have arisen as to dividends paid under section 404(k), participants (or their beneficiaries) or whether the parent or subsidiary is and that the deduction was not otherwise used in a manner described in entitled to the deduction under section precluded by section 162(k). The court section 404(k)(2)(A). 404(k). This question arises in cases in reasoned that the distribution by the which the parent and subsidiary file a ESOP of the redemption proceeds to the Proposed Effective Date consolidated return as well as in cases participants was a transaction separate These regulations are proposed to be in which the parent and subsidiary do from the redemption transaction. effective on the date of issuance of final not file a consolidated return. Therefore, the court concluded that the regulations. However, before these The IRS and Treasury Department distribution did not constitute a regulations become effective, the IRS believe that the statutory language of payment in connection with the will continue to assert in any matter in section 404(k) clearly provides that only corporation’s reacquisition of its stock, controversy outside of the Ninth Circuit the payor of the applicable dividend is and section 162(k) did not bar the that sections 162(k) and 404(k) disallow entitled to the deduction under section deduction of such payments. a deduction for payments to reacquire 404(k), regardless of whether the For the reasons stated in Rev. Rul. employer securities held by an ESOP. employees of multiple corporations 2001–6, the IRS and Treasury See Chief Counsel Notice 2004–038 benefit under the ESOP and regardless Department continue to believe that (October 1, 2004) available at http:// of whether another member of the allowing a deduction for amounts paid www.irs.gov/foia through the electronic controlled group maintains the ESOP. to reacquire stock is inconsistent with reading room. Therefore, in the example above, the the intent of, and policies underlying, Special Analyses parent, not the subsidiary, is entitled to section 404. In addition, the IRS and the deduction under section 404(k). Treasury Department believe that It has been determined that this notice allowing such a deduction would of proposed rulemaking is not a Treatment of Payments Made To constitute, in substance, an avoidance or significant regulatory action as defined Reacquire Stock evasion of taxation within the meaning in Executive Order 12866. Therefore, a Some corporations have claimed of section 404(k)(5)(A) because it would regulatory assessment is not required. It deductions under section 404(k) for allow a corporation to claim two has also been determined that section payments in redemption of stock held deductions for the same economic cost: 553(b) of the Administrative Procedure
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49899
Act (5 U.S.C. chapter 5) does not apply § 1.162(k)–1 Disallowance of deduction for addition, these shares are listed on the to these regulations, and, because the reacquisition payments. New York Stock Exchange, in the form regulations do not impose a collection (a) In general. Except as provided in of American Depositary Shares, and are of information on small entities, the paragraph (b) of this section, no actively traded through American Regulatory Flexibility Act (5 U.S.C. deduction otherwise allowable is Depositary Receipts (ADRs) meeting the chapter 6) does not apply. Pursuant to allowed under Chapter 1 of the Internal requirements of section 409(l). S section 7805(f) of the Code, this notice Revenue Code for any amount paid or maintains an ESOP for its employees. of proposed rulemaking will be incurred by a corporation in connection The ESOP holds ADRs of P on Date X submitted to the Chief Counsel for with the reacquisition of its stock or the and receives a dividend with respect to Advocacy of the Small Business stock of any related person (as defined those employer securities. The Administration for comment on its in section 465(b)(3)(C)). Amounts paid dividends received by the ESOP impact on small business. or incurred in connection with the constitute applicable dividends as reacquisition of stock include amounts described in section 404(k)(2). Comments and Public Hearing paid by a corporation to reacquire its (ii) Conclusion. P, as the payor of the stock from an ESOP that are used in a Before these proposed regulations are dividend, is entitled to a deduction manner described in section adopted as final regulations, under section 404(k) with respect to the 404(k)(2)(A). See § 1.404(k)–3. consideration will be given to any dividends, although as a foreign (b) Exceptions. Paragraph (a) of this written (a signed original and eight (8) corporation P does not obtain a U.S. tax section does not apply to any— benefit from the deduction. No copies) or electronic comments that are (i) Deduction allowable under section submitted timely to the IRS. The IRS corporation other than the corporation 163 (relating to interest); paying the dividend is entitled to the and Treasury Department specifically (ii) Deduction for amounts that are request comments on the clarity of the deduction under section 404(k). Thus, properly allocable to indebtedness and because S did not pay the dividends, S proposed regulations and how they may amortized over the term of such be made easier to understand. All is not entitled to a deduction under indebtedness; section 404(k). The answer would be the comments will be available for public (iii) Deduction for dividends paid same if P is a U.S. C corporation. inspection and copying. A public (within the meaning of section 561); or hearing will be scheduled if requested (iv) Amount paid or incurred in Q–2: What is the effective date of this in writing by any person that timely connection with the redemption of any section? submits written comments. If a public stock in a regulated investment A–2: This section applies with respect hearing is scheduled, notice of the date, company that issues only stock which is to dividends paid on or after the date time, and place for the public hearing redeemable upon the demand of the these regulations are published as final will be published in the Federal shareholder. regulations in the Federal Register. Register. (c) Effective date. This section applies Par. 4. Section 1.404(k)–3 is added to with respect to amounts paid or Drafting Information read as follows: incurred on or after the date these The principal authors of these regulations are published as final § 1.404(k)–3 Disallowance of deduction for reacquisition payments. regulations are John T. Ricotta, Office of regulations in the Federal Register. Division Counsel/Associate Chief Par. 3. Section 1.404(k)–2 is added to Q–1: Are payments to reacquire stock Counsel (Tax Exempt and Government read as follows: held by an ESOP applicable dividends Entities) and Martin Huck of Office of § 1.404(k)–2 Dividends paid by corporation that are deductible under section Associate Chief Counsel (Corporate). not maintaining ESOP. 404(k)(1)? However, other personnel from the IRS Q–1: What corporation is entitled to A–1: (a) Payments to reacquire stock and Treasury participated in the the deduction provided under section held by an ESOP, including development of these regulations. 404(k) for applicable dividends paid on reacquisition payments that are used to make benefit distributions to List of Subjects in 26 CFR Part 1 applicable employer securities of a C corporation held by an ESOP if the participants or beneficiaries, are not Income taxes, Reporting and ESOP benefits employees of more than deductible under section 404(k) recordkeeping requirements. one corporation or if the corporation because— paying the dividend is not the (1) Those payments do not constitute Proposed Amendments to the corporation maintaining the plan? applicable dividends under section Regulations A–1: (a) In general. Under section 404(k)(2); and Accordingly, 26 CFR part 1 is 404(k), only the corporation paying the (2) The treatment of those payments proposed to be amended as follows: dividend is entitled to the deduction as applicable dividends would with respect to applicable employer constitute, in substance, an avoidance or PART 1—INCOME TAXES securities held by an ESOP. Thus, no evasion on taxation within the meaning deduction is permitted to a corporation of section 404(k)(5). maintaining the ESOP if that Paragraph 1. The authority citation (b) See § 1.162(k)–1 concerning the corporation does not pay the dividend. for part 1 is amended to read, in part, disallowance of deductions for amounts as follows: (b) Example. (i) Facts. S is a U.S. corporation that is wholly owned by P, paid or incurred by a corporation in Authority: 26 U.S.C. 7805 * * *. an entity organized under the laws of connection with the reacquisition of its Section 1.162(k)–1 is also issued under 26 Country A that is classified as a stock from an ESOP. U.S.C. 162(k) * * *. corporation for Federal income tax Q–2: What is the effective date of this Section 1.404(k)–3 is also issued under 26 purposes. P is not engaged in a U.S. section? U.S.C. 162(k) and 404(k)(5)(A) * * *. trade or business. P has a single class of A–2: This section applies with respect Par. 2. Section 1.162(k)–1 is added to common stock that is listed on a stock to payments to reacquire stock that are read as follows: exchange in a foreign country. In made on or after the date these
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49900 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
regulations are published as final Request for Comments Regulatory Evaluation regulations in the Federal Register. We encourage you to participate in This rule is not a ‘‘significant Mark E. Matthews, this rulemaking by submitting regulatory action’’ under section 3(f) of Deputy Commissioner for Services and comments and related material. If you Executive Order 12866, Regulatory Enforcement. do so, please include your name and Planning and Review, and does not [FR Doc. 05–16715 Filed 8–24–05; 8:45 am] address, identify the docket number for require an assessment of potential costs and benefits under section 6(a)(3) of that BILLING CODE 4830–01–P this rulemaking (CGD08–05–041), indicate the specific section of this Order. The Office of Management and Budget has not reviewed it under that document to which each comment Order. It is not ‘‘significant’’ under the applies, and give the reason for each regulatory policies and procedures of DEPARTMENT OF HOMELAND comment. Please submit all comments the Department of Homeland Security. SECURITY and related material in an unbound The Coast Guard expects that this format, no larger than 81⁄2 by 11 inches, Coast Guard temporary change to operation of the suitable for copying. If you would like Chief John Ross Drawbridge will have 33 CFR Part 117 to know they reached us, please enclose minimal economic impact on a stamped, self-addressed postcard or commercial traffic operating on the envelope. We will consider all [CGD08–05–041] Tennessee River. This temporary change comments and material received during has been written in such a manner as to the comment period. We may change allow for minimal interruption of the RIN 1625–AA09 this proposed rule in view of them. drawbridges regular operation. Drawbridge Operation Regulation; Public Meeting Small Entities Tennessee River, Chattanooga, TN We do not now plan to hold a public Under the Regulatory Flexibility Act AGENCY: Coast Guard, DHS. meeting. But you may submit a request (5 U.S.C. 601–612), we have considered ACTION: Notice of proposed rulemaking. for a meeting by writing to the Eighth whether this proposed rule would have Coast Guard District, Bridge Branch, at a significant economic impact on a SUMMARY: The Coast Guard proposes to the address under ADDRESSES explaining substantial number of small entities. change the regulation governing the why one would be beneficial. If we The term ‘‘small entities’’ comprises Chief John Ross Drawbridge, mile 464.1, determine that a meeting would aid this small businesses, not-for-profit across the Tennessee River at rulemaking, we will hold one at a time organizations that are independently Chattanooga, Tennessee. Under the and place announced by a later notice owned and operated and are not proposed rule, the drawbridge need not in the Federal Register. dominant in their fields, and open for river traffic and may remain in governmental jurisdictions with the closed-to-navigation position from 8 Background and Purpose populations of less than 50,000. a.m., December 1, 2005 until 8 a.m., July The Coast Guard certifies under 5 1, 2006. This proposed rule would allow On February 11, 2005, the State of U.S.C. 605(b) that this proposed rule the drawbridge to be maintained in the Tennessee Department of would not have a significant economic closed-to-navigation position to allow Transportation requested a temporary impact on a substantial number of small major repair work to be performed on change to the operation of the Chief entities. This proposed rule will be in the bridge. John Ross Drawbridge, across the effect for seven months and the Coast Tennessee River, mile 464.1, at DATES: Comments and related material Guard expects the impact of this action Chattanooga, Tennessee to allow the to be minimal because the existing must reach the Coast Guard on or before drawbridge to remain in the closed-to- September 26, 2005. vertical clearance of 58.7 feet above navigation position for seven months to normal pool in the closed-to-navigation ADDRESSES: You may mail comments perform major repairs to the bridge. The position will still allow vessels to transit and related material to Commander, drawbridge has a vertical clearance of beneath the bridge. Eighth Coast Guard District, Bridge 58.7 feet above normal pool in the If you think that your business, Branch, Robert A. Young Federal closed-to-navigation position. organization, or governmental Building, 1222 Spruce Street, St. Louis, Navigation on the waterway consists jurisdiction qualifies as a small entity MO 63103–2832. Commander (obr) primarily of commercial tows and and that this rule would have a maintains the public docket for this recreational watercraft that will be significant economic impact on it, rulemaking. Comments and material minimally impacted by the closure please submit a comment (see received from the public, as well as period. Presently, the draw opens on ADDRESSES) explaining why you think it documents indicated in this preamble as signal for the passage of river traffic being available in the docket, will qualifies and how and to what degree when the vertical clearance beneath the this rule would economically affect it. become part of this docket and will be draw is 50 feet or less. When the vertical available for inspection or copying at clearance beneath the draw is more than Assistance for Small Entities room 2.107f in the Robert A. Young 50 feet, at least eight hours notice is Under section 213(a) of the Small Federal Building, Eighth Coast Guard required. The Tennessee Department of Business Regulatory Enforcement District, between 8 a.m. and 4 p.m., Transportation requested the Fairness Act of 1996 (Pub. L. 104–121), Monday through Friday, except Federal drawbridge be permitted to remain in we want to assist small entities in holidays. the closed-to-navigation position from 8 understanding this proposed rule so that FOR FURTHER INFORMATION CONTACT: Mr. a.m., December 1, 2005 until 8 a.m. July they can better evaluate its effects on Roger K. Wiebusch, Bridge 1, 2006. This temporary change to the them and participate in the rulemaking. Administrator, (314) 539–3900, drawbridge’s operation has been If the rule would affect your small extension 2378. coordinated with the commercial business, organization, or governmental SUPPLEMENTARY INFORMATION: waterway operators. jurisdiction and you have questions
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49901
concerning its provisions or options for Order 13175, Consultation and List of Subjects in 33 CFR Part 117 compliance, please contact Mr. Roger K. Coordination with Indian Tribal Wiebusch, Bridge Administrator, Eighth Governments, because it does not have Bridges. Coast Guard District, Bridge Branch, at a substantial direct effect on one or Regulations (314) 539–3900, extension 2378. more Indian tribes, on the relationship Collection of Information between the Federal Government and For the reasons discussed in the Indian tribes, or on the distribution of preamble, the Coast Guard proposes to This proposed rule would call for no power and responsibilities between the amend 33 CFR part 117 as follows: new collection of information under the Federal Government and Indian tribes. Paperwork Reduction Act of 1995 (44 PART 117—DRAWBRIDGE Energy Effects U.S.C. 3501–3520). OPERATION REGULATIONS Federalism We have analyzed this proposed rule under Executive Order 13211, Actions 1. The authority citation for part 117 A rule has implications for federalism Concerning Regulations That continues to read as follows: under Executive Order 13132, Significantly Affect Energy Supply, Federalism, if it has a substantial direct Authority: 33 U.S.C. 499; Department of Distribution, or Use. We have effect on State or local governments and Homeland Security Delegation No. 0170.1; 33 determined that it is not a ‘‘significant would either preempt State law or CFR 1.05–1(g); section 117.255 also issued energy action’’ under that order because impose a substantial direct cost of under the authority of Pub. L. 102–587, 106 compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ Stat. 5039. this proposed rule under that Order and under Executive Order 12866 and is not 2. From 8 a.m., December 1, 2005 have determined that it does not have likely to have a significant adverse effect implications for federalism. on the supply, distribution, or use of until 8 a.m., July 1, 2006, suspend energy. The Administrator of the Office section 117.949 and add a new section Unfunded Mandates Reform Act of Information and Regulatory Affairs 117.T948 to read as follows: The Unfunded Mandates Reform Act has not designated it as a significant of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not § 117.T948 Tennessee River. Federal agencies to assess the effects of require a Statement of Energy Effects (a) The Chief John Ross Drawbridge, their discretionary regulatory actions. In under Executive Order 13211. Mile 464.1, at Chattanooga, Tennessee particular, the Act addresses actions Technical Standards need not open for river traffic and may that may result in the expenditure by a be maintained in the closed-to- State, local, or tribal government, in the The National Technology Transfer navigation position from 8 a.m., and Advancement Act (NTTAA) (15 aggregate, or by the private sector of December 1, 2005 until 8 a.m., July 1, U.S.C. 272 note) directs agencies to use $100,000,000 or more in any one year. 2006. Though this proposed rule will not voluntary consensus standards in their result in such an expenditure, we do regulatory activities unless the agency (b) The draw of the Southern Railway discuss the effects of this rule elsewhere provides Congress, through the Office of Bridge over the Tennessee River, mile in this preamble. Management and Budget, with an 470.7, at Hixon, Tennessee, shall open explanation of why using these on signal when the vertical clearance Taking of Private Property standards would be inconsistent with beneath the draw is 50 feet or less. This proposed rule will not affect a applicable law or otherwise impractical. When the vertical clearance beneath the taking of private property or otherwise Voluntary consensus standards are draw is more than 50 feet, at least eight have taking implications under technical standards (e.g., specifications hours notice is required. When the Executive Order 12630, Government of materials, performance, design, or operator of a vessel returning through Actions and Interference with operation; test methods; sampling the draw within four hours informs the Constitutionally Protected Property procedures; and related management drawtender of the probable time of Rights. systems practices) that are developed or return, the drawtender shall return one Civil Justice Reform adopted by voluntary consensus half hour before the time specified and standards bodies. This proposed rule meets applicable promptly open the draw on signal for This proposed rule does not use standards in sections 3(a) and 3(b)(2) of the vessel without further notice. If the technical standards. Therefore, we did Executive Order 12988, Civil Justice vessel giving notice fails to arrive within not consider the use of voluntary Reform, to minimize litigation, one hour after the arrival time specified, eliminate ambiguity, and reduce consensus standards. whether upbound or downbound, a burden. Environment second eight hours notice is required. Clearance gages of a type acceptable to Protection of Children We have analyzed this rule under the Coast Guard shall be installed on Commandant Instruction M16475.1D, We have analyzed this proposed rule both sides of each bridge. under Executive Order 13045, which guides the Coast Guard in Protection of Children from complying with the National Dated: August 5, 2005. Environmental Health Risks and Safety Environmental Policy Act of 1969 Kevin L. Marshall, Risks. This rule is not an economically (NEPA) (42 U.S.C. 4321–4370f), and Captain, U.S. Coast Guard, Commander, 8th significant rule and would not create an have concluded that there are no factors Coast Guard Dist. Acting. environmental risk to health or risk to in this case that would limit the use of [FR Doc. 05–16859 Filed 8–24–05; 8:45 am] a categorical exclusion under section safety that might disproportionately BILLING CODE 4910–15–P affect children. 2.B.2 of the Instruction. Therefore this rule is categorically excluded under Indian Tribal Governments figure 2–1, paragraph 32(e) of the This proposed rule does not have Instruction from further environmental tribal implications under Executive documentation.
VerDate jul<14>2003 15:46 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49902 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
DEPARTMENT OF COMMERCE contained in the proposed rule, should mortality of marine mammals that be submitted in writing to the Chief, occurs incidental to the fishery. NMFS National Oceanic and Atmospheric Marine Mammal Conservation Division, must publish in the Federal Register Administration Office of Protected Resources, NMFS, any necessary changes to the LOF after 1315 East-West Highway, Silver Spring, notice and opportunity for public 50 CFR Part 229 MD 20910 and to David Rostker, OMB, comment. In the proposed LOF for 2005, [Docket No. 041108310–5222–03; I.D. by e-mail at NMFS proposed several fishery 100104H] [email protected] or by fax classification, fishery name, and to 202–395–7285. organizational changes. In particular, RIN 0648–AS78 Copies of the draft EA for this action NMFS proposed to reclassify the are available on the NMFS Office of List of Fisheries for 2005 California/Oregon thresher shark/ Protected Resources website, which is swordfish drift gillnet (≥14 in. mesh) AGENCY: National Marine Fisheries listed under the Electronic Access from Category II (occasional incidental Service (NMFS), National Oceanic and portion of this document. mortality and serious injury) to Category Atmospheric Administration (NOAA), FOR FURTHER INFORMATION CONTACT: I (frequent incidental mortality and Commerce. Kristy Long, Office of Protected serious injury) and to reclassify the Resources, 301–713–2322; David ACTION: Notice of availability; proposed Northeast bottom trawl, Mid-Atlantic Gouveia, Northeast Region, 978–281– rule; reopening of public comment bottom trawl, and five Alaska fisheries 9300; Juan Levesque, Southeast Region, period. from Category III (remote likelihood of 727–551–5779; Cathy Campbell, or no known incidental mortality and SUMMARY: On December 2, 2004, the Southwest Region, 562–980–4060; Brent serious injury) to Category II. The five proposed List of Fisheries (LOF) for Norberg, Northwest Region, 206–526– Alaska fisheries include the following: 2005 under the Marine Mammal 6733; Bridget Mansfield, Alaska Region, Bering Sea and Aleutian Islands (BSAI) Protection Act (MMPA) was published 907–586–7642; Chris Yates, Pacific flatfish trawl, BSAI Greenland turbot in the Federal Register. NMFS Islands Region, 808–944–2235. longline, BSAI pollock trawl, Bering Sea subsequently prepared a draft Individuals who use a sablefish pot, and Gulf of Alaska Pacific telecommunications device for the Environmental Assessment (EA) on the cod longline. process for classifying U.S. commercial hearing impaired may call the Federal NMFS extended the comment period fisheries on the LOF. NMFS is Information Relay Service at 1–800– on the proposed 2005 LOF for an reopening the comment period on the 877–8339 between 8 a.m. and 4 p.m. additional 30 days (70 FR 776, January proposed 2005 LOF for an additional 60 Eastern time, Monday through Friday, 5, 2005). In that Federal Register notice, days to allow the public to concurrently excluding Federal holidays. NMFS also announced its intent to review and comment on both the draft SUPPLEMENTARY INFORMATION: prepare an EA on the process for EA and proposed 2005 LOF. Electronic Access classifying fisheries on the LOF. NMFS DATES: Comments must be received by The proposed 2005 LOF Federal is reopening the comment period on this October 24, 2005. Register notice and draft EA for this proposed action to allow the public an ADDRESSES: Send comments on the action can be downloaded from the opportunity to review and comment on proposed 2005 LOF and draft EA to NMFS Office of Protected Resources the draft EA and supplement any Chief, Marine Mammal Conservation website at http://www.nmfs.noaa.gov/ previous comments on the proposed Division, Attn: List of Fisheries, Office pr/interactions/lof/. 2005 LOF. Therefore, NMFS is of Protected Resources, NMFS, 1315 reopening the public comment period East-West Highway, Silver Spring, MD Background on the proposed LOF for 2005 for an 20910. Comments may also be sent via On December 2, 2004, the proposed additional 60 days. email to [email protected] List of Fisheries for 2005 under the Dated: August 22, 2005. or the Federal eRulemaking portal: Marine Mammal Protection Act was http://www.regulations.gov (Follow published in the Federal Register (69 William T. Hogarth, instructions for submitting comments). FR 70094). NMFS must categorize each Assistant Administrator for Fisheries, Comments regarding the burden-hour commercial fishery on the LOF into one National Marine Fisheries Service. estimates, or any other aspect of the of three categories under the MMPA [FR Doc. 05–16939 Filed 8–24–05; 8:45 am] collection of information requirements based on the level of serious injury and BILLING CODE 3510–22–S
VerDate jul<14>2003 16:51 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\25AUP1.SGM 25AUP1 49903
Notices Federal Register Vol. 70, No. 164
Thursday, August 25, 2005
This section of the FEDERAL REGISTER the collection of information unless it Description of Respondents: State, contains documents other than rules or displays a currently valid OMB control local or tribal government. proposed rules that are applicable to the number. Number of Respondents: 88. public. Notices of hearings and investigations, Frequency of Responses: committee meetings, agency decisions and Food and Nutrition Service Recordkeeping; Reporting: Annually. rulings, delegations of authority, filing of Title: 7 CFR Part 235 State petitions and applications and agency Total Burden Hours: 14,900. Administrative Expense Funds. statements of organization and functions are Charlene Parker, examples of documents appearing in this OMB Control Number: 0584–0067. Departmental Information Collection section. Summary of Collection: Because the Food and Nutrition Service (FNS) is Clearance Officer. accountable for State Administrative [FR Doc. 05–16904 Filed 8–24–05; 8:45 am] DEPARTMENT OF AGRICULTURE Expense (SAE) funds by fiscal year, BILLING CODE 3410–30–P State Agencies (SAs) are requested to Submission for OMB Review; report their SAE budget information on Comment Request that basis. If the State budgets coincide DEPARTMENT OF AGRICULTURE August 22, 2005. with a fiscal year other than that used Forest Service The Department of Agriculture has by the Federal government, the SA must submitted the following information convert its State budget figures to Site-Specific Invasive Plant Treatment collection requirement(s) to OMB for amounts to be used during the Project—Olympic National Forest, review and clearance under the applicable Federal fiscal year for this Washington Paperwork Reduction Act of 1995, purpose. Under 7 CFR part 235, State AGENCY: Forest Service, USDA. Public Law 104–13. Comments Administrative Expense Funds, there regarding: (a) Whether the collection of are five reporting requirements, which ACTION: Notice of intent to prepare an information is necessary for the proper necessitate the collection of environmental impact statement. performance of the functions of the information. They are as follows: SAE SUMMARY: The USDA Forest Service will agency, including whether the Plan, Reallocation Report, Coordinated prepare an Environmental Impact information will have practical utility; Review Effort (CRE) Data Base Update, Statement (EIS) to document and (b) the accuracy of the agency’s estimate Report of SAE Funds Usage, and disclose the potential environmental of burden including the validity of the Responses to Sanctions. SAs also must effects of proposed invasive plant methodology and assumptions used; (c) maintain records pertaining to SAE. treatments. The Proposed Action is to ways to enhance the quality, utility and These include Ledger Accounts, Source clarity of the information to be Documents, Equipment Records and apply a combination of herbicide, collected; (d) ways to minimize the Record on State Appropriated Funds. mechanical and manual treatments to burden of the collection of information FNS will collect information using control known invasive plants within on those who are to respond, including forms FNS–74 and 525. approximately 3,830 acres in 99 through the use of appropriate Need and Use of the Information: FNS treatment areas on the Olympic National automated, electronic, mechanical, or will collect information on the total SAE Forest in Washington. The Proposed other technological collection cost the SA expects to incur in the Action would also establish criteria for techniques or other forms of information course of administering the Child responding to infestations that cannot technology should be addressed to: Desk Nutrition Programs (CNP); the indirect be predicted. Officer for Agriculture, Office of cost rate used by the SA in charging This notice revises the Notice of Information and Regulatory Affairs, indirect cost to SAE, together with the Intent to prepare an EIS announced in Office of Management and Budget name of the Federal agency that the Federal Register on February 23, (OMB), assigned the rate and the date the rate 2004. Four national forests were [email protected] or was assigned; breakdown of the current combined for analysis in the 2004 NOI. fax (202) 395–5806 and to Departmental year’s SAE budget between the amount Currently, the Forest Service intends to Clearance Office, USDA, OCIO, Mail allocated for the current year and the prepare three separate site-specific Stop 7602, Washington, DC 20250– amount carried over from the prior year; statements: one for the Olympic 7602. Comments regarding these and the number and types of personnel National Forest, one for the Gifford- information collections are best assured currently employed in administering the Pinchot National Forest and the of having their full effect if received CNPs. The information is used to northern portion of the Columbia River within 30 days of this notification. determine whether SA intends to use Gorge National Scenic Area in Copies of the submission(s) may be SAE funds for purposes allowable under Washington, and one for the Mount obtained by calling (202) 720–8958. OMB Circular A–87, Cost Principles for Hood National Forest and the southern An agency may not conduct or State and Local Governments; does SA’s portion of the Columbia River Gorge sponsor a collection of information administrative budget provide for National Scenic Area in Oregon. The unless the collection of information sufficient funding from State sources to project has been refined partly in displays a currently valid OMB control meet the Maintenance of Effort response to comments received during number and the agency informs requirement; and is SA’s staff adequate the initial scoping period. potential persons who are to respond to to effectively administer the programs DATES: Written comments concerning the collection of information that such covered by the SA’s agreement with the scope of this analysis should be persons are not required to respond to FNS. received by September 15, 2005 if
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49904 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
possible to ensure they are fully adverse effects on national forest system applicable environmental standards are incorporated into the Draft EIS. and adjacent lands. met. ADDRESSES: Submit comments to Doug Proposed Action Maps of the proposed treatment sites Jones, Mt. Hood National Forest, 6780 are posted on the website mentioned Hwy. 35, Mt. Hood, OR 97041. The Proposed Action for this project below. Additional information on the Electronic comments can be submitted is to apply site-specific treatment proposal are available by contacting to comments-pacificnorthwest-mthood- prescriptions that are based on the Doug Jones. [email protected]. desired condition and control objective Previous Scoping FOR FURTHER INFORMATION CONTACT: of each treatment area, the biology of Doug Jones, 541.352.6002 or particular invasive plant species, its Comments submitted during the [email protected]. proximity to water and other sensitive scoping conducted for the ‘‘Invasive resources, and size of the infestation. Plant Treatment Project—Olympic, SUPPLEMENTARY INFORMATION: Prevention of invasive plant infestations Gifford Pinchot, and Mt. Hood Nationals Need for the Proposal remains a key part of the program and Forests and Columbia River Gorge is addressed in the Regional EIS. Invasive plants are compromising the National Scenic Area; Oregon and Initial treatment estimates include ability for the Forest Service to manage Washington’’ from February 23 to April for healthy native ecosystems. Invasive about 2,130 acres of herbicide combined 5, 2004 will be retained and considered plants create a host of environmental with manual treatment and about 1,700 in the development of this EIS. If you and other effects, most of which are acres of herbicide treatment combined have additional comments on the harmful to native ecosystem processes, with manual and mechanical treatment revised proposed action, these will be including: displacement of native (including 7 acres where controlled considered in conjunction with the plants; reduction in functionality of burning may also be prescribed). previous comments. Issues identified habitat and forage for wildlife and Treatments may be repeated over from the previous scoping effort are livestock; loss of threatened, several years until suppression, outlined below. endangered, and sensitive species; containment, control, and/or eradication The Forest Service is currently increased soil erosion and reduced objectives are met. Infested areas would seeking any additional information, water quality; alteration of physical and be treated with an initial prescription, comments, and assistance from Federal, biological properties of soil, including and retreated in subsequent years, State and local agencies, tribes, and reduced soil productivity; changes to depending on the results. Treatments other individuals or organizations that the intensity and frequency of fires; high would be adapted to site conditions that may be interested in or affected by this cost (dollars spent) of controlling change over time. The proportion of proposed action. Written comments are invasive plants; and loss of recreational specific treatment methods would be due September 15. Comments should be opportunities. expected to change overtime. Herbicide specific to the Proposed Action and Approximately 3,830 acres of treatments are part of the initial clearly describe any issues the invasive, non-native plants on the prescription for most sites; however, use commenter has with the proposal. Olympic National Forest are proposed of herbicides would be expected to Issues will be addressed in the Draft for treatment. These infestations have a decline in subsequent entries. EIS. high potential to expand and further Revegetation may also be needed to In addition to submitting written degrade the National Forest and other reduce conditions that are prone to re- comments, the public may visit Forest lands. Infested areas represent potential infestation. Treatment areas would be Service officials at any time during the seed sources for further invasion into monitored to adjust the site-specific analysis and prior to the decision. A neighboring ownerships. prescription and determine whether Web site has also been established to There is an underlying need on for active revegetation will be needed. disseminate project information: http:// timely suppression, containment, In addition, the Proposed Action www.fs.fed.us/r6/invasiveplant-eis/ control, and/or eradication of invasive would establish a set of project design multiforest-sitespecific-information.htm. plants on the Olympic National Forest features for treating future invasive Issues Identified From Previous so that desired environmental and social plant infestations. The features are Scoping conditions (healthy native plant intended to ensure that effects of populations and little spread to treating currently unknown plant The potential for impacts/effects as a neighboring lands) may be achieved. invasions are within the scope of this result of the establishment and spread of These control objective terms are based EIS decision. Treatment acreage invasive plants and the potential for on the Final Environmental Impact thresholds will be established in 6th impacts/effects as a result of treatment Statement, Pacific Northwest Region— field watersheds as needed, based on actions designed to manage invasive Preventing and Managing Invasive the severity, intensity and extent of plants are both important considerations Plants: Eradication: Elimination of an potential adverse effects. that need to be addressed in the invasive plant species from an area. A site-specific, non-significant Forest analysis. The following issues were Control: Infestation size reduced over Plan amendment is also proposed for identified during the initial scoping time; some level of infestation may be the Olympic National Forest. Currently, process: acceptable. Containment: Spread of the there is a standard in the National • Human Health—Invasive plant weed prevented beyond the perimeter of Forest Plan that states that herbicide use treatments may result in health risks to patches or infestation areas mapped will be discouraged in riparian areas. forestry workers and the public, from current inventories. Suppression: However, some invasive plant species including contamination of drinking Invasive plant seed production (notably knotweed) grow in riparian water and forest products. Mitigation prevented throughout the target patch; areas, and herbicides are the most and protection measures should be invasive species does not dominate the effective and cost-efficient treatment. evaluated to ensure they protect human vegetation of the area; low levels may be The Proposed Action would change the health. Public notification measures acceptable. Without action, invasive standard to allow for riparian treatments should be evaluated to ensure that plant populations will continue to have with herbicides, as long as all other human exposure to herbicide is limited.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49905
• Treatment Effectiveness—Invasive on this proposed action and will be implementing the procedural provision plant treatments can vary in available for public inspection. of the National Environmental Policy effectiveness. The presence and spread Comments submitted anonymously will Act (40 CFR 1503.3). of invasive plants within National be accepted and considered; however, The Draft EIS is expected to be filed Forest System lands may affect the those who submit anonymous with the Environmental Protection presence and spread of invasive plants comments may not have standing to Agency (EPA) and to be available for on neighboring ownerships. Treatments appeal the subsequent decision under public comment by March 2006. The should be evaluated based on how 36 CFR part 215. Additionally, pursuant comment period on the draft EIS will be likely they are to reach desired to 7 CFR 1.27(d), any person may 45 days from the date the EPA publishes conditions in the foreseeable future. request the agency to withhold a the notice of availability in the Federal • Social and Economic—Invasive submission from the public record by Register. plant treatments vary in cost and affect showing how the Freedom of Comments on the draft EIS will be the acreage that can be effectively Information Act (FOIA) permits such analyzed, considered, and responded to treated each year given a set budget. confidentiality. Persons requesting such by the Forest Service in preparing the Manual treatment methods may cost confidentiality should be aware that, final EIS. The final EIS is scheduled to more per acre, but provide more under the FOIA, confidentiality may be be completed in Summer 2006. The employment. granted in only very limited Responsible Official (R.O.) is Dale Hom, • Non-Target Plants and Animals— circumstances, such as to protect trade Olympic National Forest Supervisor. Impacts to non-target plant and animal secrets. The Forest Service will inform The R.O. will consider comments, species vary by invasive plant the requester of the agency’s decision responses, environmental consequences treatments. Mitigation and protection regarding the request for confidentiality, discussed in the final EIS, and measures should be evaluated to ensure and where the request is denied, the applicable laws, regulations, and they protect plant and animal species agency will return the submission and policies in making a decision regarding (including culturally important plants) notify the requester that the comments this proposed action. The responsible from adverse effects. may be resubmitted with or without officials will document the decision and • Soils, Water Quality and Aquatic name and address within a specified rationale for the decision in the Record Biota—Soil and ground disturbing number of days. of Decision. It will be subject to Forest impacts, effects to aquatic organisms, The Forest Service believes, at this Service Appeal Regulations (36 CFR and water quality impacts vary by early stage, it is important to give part 215). reviewers notice of several court rulings invasive plant treatments. Mitigation Dated: August 17, 2005. and protection measures should be related to public participation in the Virginia Grilley, evaluated to ensure they protect soil, environmental review process. First, water quality and aquatic biota from reviewers of the draft EIS must structure Acting Forest Supervisor, Olympic National Forest. adverse effects. their participation in the environmental review of the proposal so that it is [FR Doc. 05–16897 Filed 8–24–05; 8:45 am] Alternatives To Be Considered meaningful and alerts an agency to the BILLING CODE 3410–11–M The No Action alternative will serve reviewer’s position and contentions. as a baseline for comparison of Vermont Yankee Nuclear Power Corp. v. alternatives. Under the No Action NRDC. 435 U.S. 519, 553 (1978). Also, DEPARTMENT OF AGRICULTURE alternative, the Olympic National Forest environmental objectives that could be Forest Service would continue to treat invasive plant raised at the draft EIS stage but that are species as authorized under existing not raised until after the completion of Site-Specific Invasive Plant Treatment National Environmental Policy Act the final EIS may be waived or Project—Gifford Pinchot National (NEPA) documents. The Olympic dismissed by the courts. City of Angoon Forest, Washington and Columbia National Forest would continue to have v. Hodel, 803 F. 2d 1016, 1022 (9th Cir. River Gorge National Scenic Area a standard that discourages herbicide 1986) and Wisconsin Heritage, Inc. v. use in riparian areas; however, an Harris, 490 F. Supp. 1334 (E.D. Wis. AGENCY: Forest Service, USDA. existing Environmental Assessment and 1980). Because of these court rulings, it ACTION: Notice of intent to prepare an Decision Notice have authorized is very important that those interested environmental impact statement. herbicide treatments at several in this proposed action participate by knotweed sites in riparian areas. the close of the 45-day comment period; SUMMARY: The USDA Forest Service will Additional action alternatives may be so that substantive comments and prepare an Environmental Impact developed as the analysis proceeds and objections are made available to the Statement (EIS) to document and if substantive new comments or Forest Service at a time when it can disclose the potential environmental information is received. meaningfully consider them and effects of proposed invasive plant respond to them in the final EIS. treatments. The Proposed Action is to Alternative Evaluation Criteria To assist the Forest Service in apply a combination of herbicide, The alternatives will be evaluated identifying and considering issues and manual and mechanical methods to based on how effectively they treat concerns on the proposed action, control known invasive plants within known sites and respond to new comments on the draft EIS should be as approximately 2,687 acres over 114 infestations, their monetary cost, and specific as possible. It is also helpful if treatment areas on the Gifford Pinchot their potential risks to human health the comments refer to specific pages or National Forest and Columbia River and the environment. chapters of the draft statement. Gorge National Scenic Area in Comments may also address the Washington. The Proposed Action Estimated Dates for Draft and Final EIS adequacy of the draft EIS or the merits would also establish criteria for Comments received in response to of the alternatives formulated and responding to infestations that cannot this solicitation, including names and discussed in the statement. Reviewers be predicted. addresses of those who comment, will may wish to refer to the Council on This notice revises the Notice to be considered part of the public record Environmental Quality Regulations for Intent to prepare an EIS announced in
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49906 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
the Federal Register on February 23, further invasion onto neighboring In addition, the Proposed Action 2004. Four national forests were ownerships. would establish a set of criteria for combined for analysis in the 2004 NOI; There is an underlying need for treating future invasive plant currently, the Forest Service intends to timely suppression, containment, infestations. The criteria are intended to prepare the three separate site-specific control, and/or eradication of invasive ensure that effects of treating currently statements: One for the Olympic plants on these national forest system unknown plant invasions are within the National Forest, one for the Gifford- lands so that desired environmental and scope of this EIS decision. Pinchot National Forest and the social conditions may be achieved A site-specific, non-significant Forest northern portion of the Columbia River (these terms are based on the R6 FEIS: Plan amendment is also being Gorge National Scenic Area in Eradication: Elimination of an invasive considered for the Gifford Pinchot Washington, and one for the Mount plant species from an area. Control: National Forest. Currently, there is a Hood National Forest and the southern Infestation size reduced over time; some standard in the Gifford-Pinchot National portion of the Columbia River Gorge level of infestation may be acceptable. National Scenic Area in Oregon. The Containment: Spread of the weed Forest Plan that severely restricts project has been refined partly in prevented beyond the perimeter of herbicide use in riparian areas. response to comments received during patches or infestation areas mapped However, some invasive plant species the initial scoping period. from current inventories. Suppression: (notably knotweed) grow in riparian areas and herbicides may be the most DATES: Comments submitted during the Invasive plant seed production scoping conducted from February 23 to prevented throughout the target patch; cost-effective treatment. The Proposed April 5, 2004 will be considered in the invasive species does not dominate the Action would change the standard to development of this EIS. Additional vegetation of the area; low levels may be allow for riparian treatments with comments on the revised proposed acceptable). Without action, invasive herbicides, as long as all other action will be considered in conjunction plant populations will continue to have applicable environmental standards are with the previous comments. Additional adverse effects on national forest system met. comments would be most helpful if and adjacent lands. Maps of the proposed treatments sites received by September 15, 2005. Proposed Action and additional information on the ADDRESSES: Submit written comments proposal are available by contacting to Doug Jones, Mt. Hood National The Proposed Action for this project Doug Jones. Forest, 6780 Hwy 35, Mt. Hood, OR is to apply site-specific treatment Previous Scoping 97041. Electronic comments can be prescriptions that are based on the submitted to comments- desired condition and control objective of each treatment area, the biology of Comments submitted during the pacificnorthwest-mthood- scoping conducted for the ‘‘Invasive [email protected]. particular invasive plants species, its proximity to water and other sensitive Plant Treatment Project—Olympic, FOR FURTHER INFORMATION CONTACT: resources, and size of the infestation Gifford Pinchot, and Mt. Hood Nationals Doug Jones, 541.352.6002 or (these factors may change over time). Forests and Columbia River Gorge [email protected]. Initial treatment estimates include National Science Area; Oregon and SUPPLEMENTARY INFORMATION: about 2,375 acres of herbicide combined Washington’’ from February 23 to April with manual treatment and about 175 5, 2004 will be retained and considered Need for the Proposal acres of herbicide treatment combined in the development of this EIS. If you Invasive plants are compromising the with manual and mechanical treatment. have additional comments on the ability for the Forest Service to manage One site on the Columbia River Gorge revised proposed action these will be for healthy native ecosystems. Invasive National Scenic Area would be grazed considered in conjunction with the plants create a host of environmental with goats as parts of the treatment previous comments. Issues identified and other effects, most of which are prescription. The Scenic Area also has from the previous scoping effort are harmful to native ecosystem processes, 137 acres that would be treated with a outlined below. including: displacement of native combination of herbicide and The Forest Service is currently plants; reduction in functionality of mechanical means. seeking any additional information, habitat and forage for wildlife and Treatments may be repeated over comments, and assistance from Federal, livestock; loss of threatened, several years until suppression, State and local agencies, tribes, and endangered, and sensitive species; containment, control, and/or eradication other individuals or organizations that increased soil erosion and reduced objectives are met. Infested areas would may be interested in or affected by the water quality; alteration of physical and be treated with an initial prescription, proposed action. Written comments are biological properties of soil, including and retreated in subsequent years, due September 15. Comments should be reduced soil productivity; changes to depending on the results. Treatments specific to the Proposed Action and the intensity and frequency of fires; high types as well as the proportion of clearly describe any issues the cost (dollars spent) of controlling specific treatment methods would be commenter has with the proposal. invasive plants; and loss of recreational expected to change over time. Herbicide Issues will be addressed in the Draft opportunities. treatments are part of the initial EIS. Approximately 2,687 acres on the prescription for most sites, however, use Giffod Pinchot National Forest and of herbicides would be expected to In addition to submitting written northern portion of the Columbia River decline in subsequent entries. comments, the public may visit Forest Gorge National Scenic Area are infested Revegetation may also be needed to Service officials at any time during the with invasive, non-native plants. These reduce conditions that are prone to re- analysis and prior to the decision. A infestations have a high potential to infestation. Treatment areas would be Web site has also been established to expand and further degrade the National monitored to adjust the site-specific disseminate project information: http:// Forest and other lands. Infested areas prescription and determine whether www.fs.fed.us/r6/invasiveplant-eis/ represent potential seed sources for active revegetation will be needed. multiforest-sitespecific-information.htm.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49907
Issues Identified From Previous continue to have a standard that be considered part of the public record Scoping severely restricts herbicide use in on this proposed action and will be The potential for impacts/effects as a riparian areas. available for public inspection. Comments submitted anonymously will result of the establishment and spread of Alternative Evaluation Criteria invasive plants and the potential for be accepted and considered; however, The alternatives will be evaluated those who submit anonymous impacts/effects as a result of treatment based on how effectively they treat actions designed to manage invasive comments may not have standing to known and respond to new infestations, appeal the subsequent decision under plants are both important considerations their monetary cost, and their potential 36 CFR part 215. Additionally, pursuant that need to be addressed in the risks to human health and the to 7 CFR 1.27(d), any person may analysis. The following issues were environment. request the agency to withhold a identified during the initial scoping submission from the public record by process: Estimated Dates for Draft and Final EIS showing how the Freedom of • Human Health—Invasive plant The Draft EIS is expected to be filed Information Act (FOIA) permits such treatments may result in health risks to with the Environmental Protection confidentiality. Persons requesting such forestry workers and the public, Agency (EPA) and to be available for confidentiality should be aware that, including contamination of drinking public comment by March 2006. The under the FOIA, confidentiality may be water and forest products. Mitigation comment period on the draft EIS will be granted in only very limited and protection measures should be 45 days from the date the EPA publishes circumstances, such as to protect trade evaluated to ensure they protect human the notice of availability in the Federal secrets. The Forest Service will inform health. Public notification measures Register. the requester of the agency’s decision should be evaluated to ensure that The Forest Service believes, at this regarding the request for confidentiality, human exposure to herbicide is limited. early stage, it is important to give • and where the request is denied, the Treatment Effectiveness—Invasive reviewers notice of several court rulings agency will return the submission and plant treatments can vary in related to public participation in the notify the requester that the comments effectiveness. The presence and spread environmental review process. First, may be resubmitted with or without of invasive plants within National reviewers of the draft EIS must structure name and address within a specified Forest System lands may be affect the their participation in the environmental number of days. presence and spread of invasive plants review of the proposal so that it is Comments on the draft EIS will be on neighboring ownerships. Treatments meaningful and alerts an agency to the analyzed, considered, and responded to should be evaluated based on how reviewer’s position and contentions. by the Forest Service in preparing the likely they are to reach desired Vermont Yankee Nuclear Power Corp. v. final EIS. The Final EIS is scheduled to conditions in the foreseeable future. NRDC. 435 U.S. 519.553 (1978). Also, be completed in 2006. The Responsible • Social and Economic—Invasive environmental objectives that could be Officials are Claire Lavendel, Gifford plant treatments vary in cost and affect raised at the draft EIS stage but that are Pinchot National Forest Supervisor and the acreage that can be effectively not raised until after the completion of Daniel T. Harkenrider, Columbia River treated each year given a set budget. the final EIS may be waived or Gorge National Scenic Area Manager. Manual treatment methods may cost dismissed by the courts. City of Angoon These officials will consider comments, more per acre and provide more v. Hodel, 803 F. 2d 1016, 1022 (9th Cir. responses, environmental consequences employment. 1986) and Wisconsin Heritage, Inc. v. • discussed in the final EIS, and Non-Target Plants and Animals— Harris, 490 F. Supp. 1334 (E.D. Wis. applicable laws, regulations, and Impacts to non-target plant and animal 1980). Because of these court rulings, it policies in making a decision regarding species varies by invasive plant is very important that those interested this proposed action. The responsible treatments. Mitigation and protection in this proposed action participate by officials will document the decision and measures should be evaluated to ensure the close of the 45-day comment period; rationale for the decision in the Record they protect plant and animal species so that substantive comments and of Decision. It will be subject to Forest (including culturally important plants) objections are made available to the Service Appeal Regulations (36 CFR from adverse effects. Forest Service at a time when it can Part 215). • Soils, Water Quality and Aquatic meaningfully consider them and Biota—Soil and ground disturbing respond to them in the final EIS. Dated: August 16, 2005. impacts, effects to aquatic organisms, To assist the Forest Service in Claire Lavendel, and water quality impacts vary by identifying and considering issues and Forest Supervisor, Gifford Pinchot National invasive plant treatments. Mitigation concerns on the proposed action, Forest. and protection measures should be comments on the draft EIS should be as Dated: August 12, 2005. evaluated to ensure they protect soil, specific as possible. It is also helpful if Daniel T. Harkenrider, water quality and aquatic biota from the comments refer to specific pages or Area Manager, Columbia River Gorge adverse effects. chapters of the draft statement. National Scenic Area. Comments may also address the [FR Doc. 05–16901 Filed 8–24–05; 8:45 am] Alternatives Considered adequacy of the draft EIS or the merits BILLING CODE 3410–11–M The No Action alternative will serve of the alternatives formulated and as a baseline for comparison of discussed in the statement. Reviewers alternatives. Under the No Action may wish to refer to the Council on DEPARTMENT OF AGRICULTURE alternative, the Gifford-Pinchot National Environmental Quality Regulations for Forest/Columbia River Gorge National implementing the procedural provision Forest Service Scenic Area would continue to treat of the National Environmental Policy Plumas National Forest; Beckwourth invasive plant species as authorized Act (40 CFR 1503.3). Ranger District, California; Freeman under existing National Environmental Comments received in response to Project Policy Act (NEPA) documents. The this solicitation, including names and Gifford-Pinchot National Forest would addresses of those who comment, will AGENCY: Forest Service, USDA.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49908 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
ACTION: Notice of intent to prepare an objectives and reduce transportation the local communities; improving aspen Environmental Impact Statement. system impacts. stands; and providing the access needed In its effort to reduce excessive fuel, to meet other project objectives and SUMMARY: The USDA Forest Service, the Forest Service intends to work with reducing transportation system impacts. Plumas National Forest will prepare an the Plumas County Fire Safe Council to Fuel reduction treatments will occur Environmental Impact Statement (EIS) reduce hazardous fuels around local over 3,066 acres of the DFPZ and WUI. to reduce hazardous fuels, improve communities, as well as to develop a Treatments are specifically designed to forest health, improve bald eagle strategic network of linear fuel cause advancing wildfire to drop to the habitat, cost effectively support the local treatments across the landscape. This ground and burn with reduced intensity communities, improve aspen stands, will reduce the potential for large-scale, and will involve several methods (i.e., provide access needed to meet other high-intensity fire where wildfire grapple pile, handthin, mastication, project objectives and reduce behavior would be modified to allow for mechanical thinning, underburn only). transportation system impacts on the safer, more effective fire suppression. Forest health improvement will west side of Lake Davis near Portola, Many stands in the project are involve the use of group selection to CA. infected with small pockets of insects remove insect and disease infected DATES: Although comments will be and disease. The insects include both pockets within the stands. Group accepted throughout any phase of this bark beetles (Dendroctonus brevicomus, selection will be on 175 acres, ranging project, it would be most helpful if D. valens) and pine engravers (Ips spp.). from 0.5–2 acres in size. The health of comments on the scope of the analysis The diseases include mistletoe plantations and young conifer stands were received within 30 days of the date (Arceuthobium spp.), white pine blister will also be addressed, through area of publication of this notice of intent in rust (Cronartium ribicola) and annosus thinning, mastication and grapple the Federal Register. The draft EIS is root rot (Heterobasidion annosum). piling. Over half of the eagle habitat within expected in April 2006 and the final EIS Stands in the Lake Davis Bald Eagle the project area would receive some is expected in August 2006. Habitat Management Area (BEHMA) in the Freeman project area are kind of treatment, consisting of ADDRESSES: Send written comments to overstocked, largely unable to recruit mechanical thinning, hand thinning, Robert Mac Whorter, Plumas National nesting structure, and at risk of loss underburn only, group selection and Forest, PO Box 11500, Quincy, CA from wildlife and disease/insect mechanical aspen treatments, covering 95971; fax: (530) 283–7746. Comments infestation. 1,964 acres. Treatments would focus on may be: (1) Mailed to the Responsible In addition to reducing the risk of removing diseased pockets of trees and Official; (2) hand-delivered between the catastrophic wildfire and improving increasing the quantity of nesting hours of 8 a.m.–4:30 p.m. weekdays forest health, this project would provide habitat by thinning stands to accelerate Pacific time; (3) faxed to (530) 283– products that contribute to community growth. 7746; or (4) electronically mailed to: stability in the most cost-effective Aspen stands would be treated to comments-pacificsouthwest- manner possible, considering other remove conifers to enhance aspen [email protected]. Comments submitted resource objectives, by creating health and growth. Aspen would be electronically must be in Rich Text employment and income that contribute released from conifer competition in 40 Format (.rtf). to local economic activity. units totaling approximately 645 acres, FOR FURTHER INFORMATION CONTACT: Aspen stands in the project area are ranging in size between 1–85 acres. Sabrina Stadler, Interdisciplinary Team low in productivity and health, and Conifers to be removed are within the Leader, Plumas National Forest, most are not successfully regenerating. existing aspen stand (i.e., those trees Beckwourth Ranger District, P.O. Box 7, Field evaluation indicates that, actively suppressing aspen community Blairsden, CA 96103, (530) 836–2575. regardless of the relative contribution of productivity and function) or trees SUPPLEMENTARY INFORMATION: these various factors, at present, bordering a stand, which directly affect competition by conifers is a major factor the health of the stand. All conifers up Project Location in aspen decline. Aspen stand to 29.9″ dbh would also be removed The project area is located north of improvement work will maintain or within a variable-width treatment zone Portola and west of Lake Davis, in the improve diverse and productive native extending up to 150′ beyond the outer Beckwourth Ranger District of the plant communities in the riparian zone, boundary of the aspen stands. Plumas National Forest. It is within all as well as to support populations of The Forest proposes to improve or parts of T23N, R12E; T23N, R13E; well-distributed native plant, vertebrate transportation system needed to access T24N, R12E; T24N, R13E. and invertebrate populations that the vegetation/fuels treatment units and to mitigate existing adverse effects on Purpose and Need for Action contribute to the viability of riparian plant communities. heritage resources, soils, and water The effects of several vegetation The proposed road relocation and quality. These improvements to the management projects will be analyzed decommissioning work is needed to transportation system will include: in this EIS. The need for and purpose of achieve desired riparian conditions and building approximately 17 short the project has six elements: to reduce to reduce the total area of compacted segments of temporary roads hazardous fuels in the wildland/urban soil. (decommissioned upon completion), interface (WUI) and to create a strategic totaling 2-miles, needed to implement network of linear fuel treatments across Proposed Action planned activities; decommissioning the landscape referred to as defensible The project area consists of 14,967 approximately 12.5-miles of existing fuel profile zones (DFPZs); to improve acres of the PNF managed by the system roads and 1.9-miles of non- forest health; to improve bald eagle Beckwourth Ranger District. The system roads; closing 0.7-miles of habitat; to implement the project in a proposed action will treat 5,792 acres, system roads; relocating 0.2-mile of cost effective manner and contribute to approximately 39 percent of the project system road and 0.7-mile of system road local community economic stability; to area by: reducing hazardous fuels; would be reduced to single-track, in improve aspen stands; to provide the improving forest health, improving bald order to provide for recreational access needed to meet other project eagle habitat, cost effectively supporting opportunities near Lake Davis.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49909
Hazard trees would be removed from Comment To assist the Forest Service in along Maintenance Level 3, 4 and 5 identifying and considering issues and This notice of intent initiates the roads (generally, surfaced roads) and concerns on the proposed action, scoping process which guides the high-use Maintenance Level 2 roads comments on the draft environmental development of the EIS. Our desire is to (generally native-surface roads). impact statement should be as specific receive substantive comments on the Identification of hazard trees would as possible. It is also helpful if merits of the proposed action, as well as follow guidelines in the Plumas comments refer to specific pages or comments that address errors, National Forest Roadside/Facility chapters of the draft proposed action, misinformation, or information that has Hazard Tree Abatement Action Plan comments on the draft environmental been omitted. Substantive comments are (2003). impact statement should be as specific defined as comments within the scope Lead Agency: The USDA Forest as possible. It is also helpful if of the proposal, that have a direct Service is the lead agency for this comments refer to specific pages or relationship to the proposal, and that proposal. chapters of the draft statement. include supporting reasons for the Responsible Official: Plumas National Comments may also address the responsible official’s consideration. Acting Forest Supervisor, Robert G. adequacy of the draft environmental MacWhorter is the responsible official; Early Notice of Importance of Public impact statement or the merits of the Plumas National Forest, P.O. Box 11500, Participation in Subsequent alternatives formulated and discussed in Quincy, CA 95971. Environmental Review: A draft the statement. Reviewers may wish to environmental impact statement will be Nature of Decision To Be Made refer to the Council on Environmental prepared for comment. The comment Quality Regulations for implementing The responsible official will decide period on the draft environmental the procedural provisions of the whether to implement this project as impact statement will be 45 days from National Environmental Policy Act at 40 proposed, implement the project based the date the Environmental Protection CFR 1503.3 in addressing these points. on an alternative to this proposal that is Agency publishes the notice of formulated to resolve identified issues availability in the Federal Register. Comments received, including the or not implement this project at this names and addresses of those who The Forest Service believes, at this comment, will be considered part of the time. The responsible official will be the early stage, it is important to give Plumas National Forest Forest public record on this proposal and will reviewers notice of several court rulings be available for public inspection. Supervisor. related to public participation in the Scoping Process environmental review process. First, (Authority: 40 CFR 1501.7 and 1508.22; reviewers of draft environmental impact Forest Service Handbook 1909.15, Section Public questions and comments 21) regarding this proposal are an integral statements must structure their Dated: August 19, 2005. part of this environmental analysis participation in the environmental process. Comments will be used to review of the proposal so that it is Kathleen L. Gay, identify issues and disqualification meaningful and alerts an agency to the Acting Forest Supervisor. alternatives to the proposed action. To reviewer’s position and contentions. [FR Doc. 05–16898 Filed 8–24–05; 8:45 am] assist the Forest Service in identifying Vermont Yankee Nuclear Power Corp. v. BILLING CODE 3410–11–M and considering issues and concerns on NRDC, 435 U.S. 519, 553 (1978). Also, the proposed action, comments should environmental objections that could be be as specific as possible. raised as the draft environmental impact A copy of the proposed action and/or statement stage but that are not raised DEPARTMENT OF COMMERCE a summary of the proposed action will until after completion of the final be mailed to adjacent landowners, as environmental impact statement may be Economic Development Administration well as to those people and waived or dismissed by the courts. City Notice of Petitions by Producing Firms organizations that have indicated a of Angoon v. Hodel, 803 F.2d 1016, for Determination of Eligibility To specific interest in the Freeman project, 1022 (9th Cir. 1986) and Wisconsin Apply for Trade Adjustment to Native American entities, and Heritages, Inc. v. Harris, 490 F. Supp. Assistance Federal, State and local agencies. The 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important public will be notified of any meetings AGENCY: that those interested in this proposed Economic Development regarding this proposed by mailings and Administration (EDA), Commerce. press releases sent to the local action participate by the close of the 45- newspaper and media. There are no day comment period so that substantive ACTION: To give all interested parties an meetings planned at this time. comments and objections are made opportunity to comment. Permits or Licenses Required: An Air available to the Forest Service at a time Pollution Permit and a Smoke when it can meaningfully consider them Petitions have been accepted for filing Management Plan are required by local and respond to them in the final on the dates indicated from the firms agencies. environmental impact statement. listed below. LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD JULY 16, 2005–AUGUST 19, 2005
Date Firm name Address petition Product accepted
Source Code Corporation ...... 290 Vanderbilt Avenue Nor- 10–Aug–05 .... Computers and servers. wood, MA 02062. ITA Corporation ...... 2401 Research Boulevard 25–Jul–05 ...... Accounting and human resource software. Rockville, MD 20850.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49910 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD JULY 16, 2005–AUGUST 19, 2005— Continued
Date Firm name Address petition Product accepted
Rolco, Inc ...... 946 East Hill Street Kasota, 29–Jul–05 ...... Injection mold plastic components for general industrial, table MN 56050. games, medical equipment, electronics and automobiles. Harden Furniture, Inc ...... 8550 Mill Pond Way 22–Jul–05 ...... Hardwood end tables, entertainment centers, dining room ta- McConnellsville, NY 13401. bles and chairs, and beds and bedroom furniture. Criterion Technology, Inc ...... 101 McIntosh Parkway 22–Jul–05 ...... Thermoformed or injection-molded acrylic and polycarbonate Thomaston, GA 30286. enclosures/castings, used primarily to protect security cam- eras. Garmat USA, Inc ...... 1401 West Standord Avenue 26–Jul–05 ...... Enclosure systems for process control in automotive applica- Englewood, CO 80110. tions. Whirley Industries, Inc ...... 618 Fourth Avenue Warren, 26–Jul–05 ...... Plastic cups. PA 16365. Trapper Peak Forge, Inc. 4072 Eastside Highway Ste- 29–Jul–05 ...... Ornamental iron work. d.b.a. Hacienda Iron Craft. vensville, MT 59870. Quality Metal Products, Inc ..... 11500 West 13th Avenue 29–Jul–05 ...... Counters, lockers, racks, display cases, shelves, partitions Lakewood, CO 80215. and similar fixtures of metal. Sashco, Inc ...... 10300 East 107th Place Brigh- 10–Aug–05 .... Acrylic polymer. ton, CO 80601. Marlin Firearms Company 100 Kenna Drive North 16–Aug–05 .... Shotguns and rifles. (The). Haven, CT 06473. RMO, Inc ...... 650 West Colfax Avenue Den- 11–Aug–05 .... Non plastic dental fittings. ver, CO 80204. KALD Tool and Die Corpora- 3022 Highway 145 Richfield, 11–Aug–05 .... Molds for plastic injection molding and metal die casting. tion. WI 53076.
The petitions were submitted DEPARTMENT OF COMMERCE charging letter to Sunford that alleged pursuant to section 251 of the Trade Act that Sunford committed three violations of 1974 (19 U.S.C. 2341). Consequently, Bureau of Industry and Security of the Regulations. Specifically, the charges are: the United States Department of [Docket No. 04–BIS–14] Commerce has initiated separate 1. One violation of 15 CFR 764.2(e)— investigations to determine whether Action Affecting Export Privileges; Ordering, Buying, Financing, and/or increased imports into the United States Sunford Trading, Ltd.; In the Matter of: Forwarding Items to China With the of articles like or directly competitive Sunford Trading Ltd., Room 2208, 22/ Knowledge That a Violation of the Regulations Will Occur. Beginning on or with those produced by each firm F, 118 Connaught Road West, Hong about November 23, 1998 and contributed importantly to total or Kong, China, Respondent; Order Relating to Sunford Trading, Ltd. continuing to on or about July 20, 1999, partial separation of the firm’s workers, Sunford ordered, bought, financed, and/ or threat thereof, and to a decrease in The Bureau of Industry and Security, or forwarded an industrial hot press sales or production of each petitioning U.S. Department of Commerce (‘‘BIS’’) furnace to the Beijing Research Institute firm. Any party having a substantial has initiated an administrative of Materials and Technology interest in the proceedings may request proceeding against Sunford Trading, (hereinafter, ‘‘BRIMT’’) in China with a public hearing on the matter. A Ltd. (‘‘Sunford’’) pursuant to Section knowledge that a violation of the request for a hearing must be received 766.3 of the Export Administration Regulations would occur. Specifically, by Trade Adjustment Assistance, Room Regulations (currently codified at 15 at the time Sunford ordered, bought, 7812, Economic Development CFR parts 730–774 (2005)) financed, and/or forwarded the furnace, Administration, U.S. Department of (‘‘Regulations’’),1 and Section 13(c) of it knew or had reason to know that a Commerce, Washington, DC 20230, no the Export Administration Act of 1979, Department of Commerce license was later than the close of business of the as amended (50 U.S.C. app. 2401–2420 required for export to BRIMT under tenth calendar day following the (2000)) (‘‘Act’’),2 through issuance of a Section 744.3 of the Regulations, and publication of this notice. The Catalog that such license would not be obtained. of Federal Domestic Assistance official 1 The violations charged occurred during 1999. 2. One violation of 15 CFR 764.2(d)— program number and title of the The Regulations governing the violations at issue Conspiring To Export an Industrial are found in the 1999 version of the Code of Federal Furnace to China Without the Required program under which these petitions are Regulations (15 CFR parts 730–774 (1999)). The submitted is 11.313, Trade Adjustment 2005 Regulations establish the procedures that U.S. Government Authorization. Assistance. apply to this matter. Beginning on or about November 23, 2 From August 21, 1994 through November 12, 1998 and continuing to on or about July Dated: August 19, 2005. 2000, the Act was in lapse. During that period, the 20, 1999, Sunford conspired or acted in Anthony J. Meyer, President, through Executive Order 12924, which had been extended by successive Presidential concert with others, known and Senior Program Analyst, Office of Strategic Notices, the last of which was August 3, 2000 (3 Initiatives. CFR, 2000 Comp. 397 (2001)), continued the the Act has been in lapse and the President, through Regulations in effect under the International Executive Order 13222 of August 17, 2001 (3 CFR, [FR Doc. 05–16892 Filed 8–24–05; 8:45 am] Emergency Economic Powers Act (50 U.S.C. 1701– 2001 Comp. 783 (2002)), as extended by the Notice BILLING CODE 3510–24–P 1706 (2000)) (‘‘IEEPA’’). On November 13, 2000, the of August 6, 2004 (69 FR 48763, August 10, 2004), Act was reauthorized and it remained in effect has continued the Regulations in effect under the through August 20, 2001. Since August 21, 2001, IEEPA.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49911
unknown, to bring about acts that Sunford should fail to pay the civil intended to be, exported from the constituted a violation of the penalty in a timely manner, the United States; or Regulations when it agreed to undersigned may enter an Order E. Engage in any transaction to service participate in the export of the furnace denying all of Sunford’s export any item subject to the Regulations that referenced above to BRIMT in China privileges for a period of one year from has been or will be exported from the without the Department of Commerce the date of entry of this Order. United States and which is owned, license required by Section 744.3 of the Fourth, for a period of three years possessed or controlled by the Denied Regulations. In furtherance of the from the date of entry of the Order, Person, or service any item, of whatever conspiracy, Sunford and its co- Sunford Trading, Ltd., Room 2208, 22/ origin, that is owned, possessed or conspirators agreed to conceal the F, 118 Connaught Road West, Hong controlled by the Denied Person if such identity of the actual end-user and of Kong, China, its successors or assigns, service involves the use of any item the item being exported in an attempt to and when acting for or on behalf of subject to the Regulations that has been circumvent the license requirement Sunford, its officers, representatives, or will be exported from the United described in Section 744.3 of the agents, or employees (‘‘Denied Person’’) States. For purposes of this paragraph, Regulations. may not participate, directly or servicing means installation, 3. One violation of 15 CFR 764.2(b)— indirectly, in any way in any transaction maintenance, repair, modification or Causing an Export to China Without the involving any commodity, software or testing. Required Department of Commerce technology (hereinafter collectively Sixth, that, to prevent evasion of this License. Beginning on or about referred to as ‘‘item’’) exported or to be Order, BIS, after notice and opportunity November 23, 1998 and continuing to exported from the United States that is for comment as provided in Section on or about July 20, 1999, Sunford subject to the Regulations, or in any 766.23 of the Regulations, may make caused the export of the furnace other activity subject to the Regulations, any person, firm, corporation, or described above to BRIMT in China including, but not limited to: business organization related to Sunford without the required Department of A. Applying for, obtaining or using by affiliation, ownership, control, or Commerce license. Specifically, Sunford any license, License Exception, or position of responsibility in the conduct ordered, bought, financed, and/or export control document; of trade or related services subject to the forwarded the industrial furnace B. Carrying on negotiations provisions of this Order. described above, thereby causing the concerning, or ordering, buying, Seventh, that this Order does not furnace to be exported to BRIMT in receiving, using, selling, delivering, prohibit any export, reexport, or other China despite the fact that the storing, disposing of, forwarding, transaction subject to the Regulations Department of Commerce license transporting, financing, or otherwise where the only items involved that are required by Section 744.3 of the servicing in any way, any transaction subject to the Regulations are the Regulations had not been obtained. involving any item exported or to be foreign-produced direct product of U.S.- Whereas, BIS and Sunford have exported from the United States that is origin technology. entered into a Settlement Agreement subject to the Regulations, or in any Eighth, that the charging letter, the pursuant to Section 766.18(b) of the other activity subject to the Regulations; Settlement Agreement, this Order, and Regulations whereby they agreed to or the record of this case as defined by settle this matter in accordance with the C. Benefitting in any way from any Section 766.20 of the Regulations shall terms and conditions set forth therein, transaction involving any item exported be made available to the public. and or to be exported from the United States Ninth, that the administrative law Whereas I have approved of the terms that is subject to the Regulations, or in judge shall be notified that this case is of such Settlement Agreement; any other activity subject to the withdrawn from adjudication. It is therefore ordered: Regulations. This Order, which constitutes the First, that a civil penalty of $33,000 is Fifth, that no person may, directly or final agency action in this matter, is assessed against Sunford, which shall be indirectly, do any of the following: effective upon publication in the paid to the U.S. Department of A. Export or reexport to or on behalf Federal Register. Commerce within 30 days from the date of the Denied Person any item subject to Entered this 18th day of August 2005. of entry of this Order. Payment shall be the Regulations; Wendy Wysong, made in the manner specified in the B. Take any action that facilitates the Acting Assistant Secretary of Commerce for attached instructions. acquisition or attempted acquisition by Export Enforcement. Second, that, pursuant to the Debt the Denied Person of the ownership, [FR Doc. 05–16885 Filed 8–24–05; 8:45 am] Collection Act of 1982, as amended (31 possession, or control of any item U.S.C. 3701–3720E (2000)), the civil subject to the Regulations that has been BILLING CODE 3510–DT–M penalty owed under this Order accrues or will be exported from the United interest as more fully described in the States, including financing or other DEPARTMENT OF COMMERCE attached Notice, and, if payment is not support activities related to a made by the due date specified herein, transaction whereby the Denied Person National Oceanic and Atmospheric Sunford will be assessed, in addition to acquires or attempts to acquire such Administration the full amount of the civil penalty and ownership, possession or control; interest, a penalty charge and an C. Take any action to acquire from or [I.D. 081905B] administrative charge, as more fully to facilitate the acquisition or attempted Notice of Intent to Conduct Public described in the attached Notice. acquisition from the Denied Person of Scoping Meetings and to Prepare an Third, that the timely payment of the any item subject to the Regulations that Environmental Impact Statement civil penalty set forth above is hereby has been exported from the United Related to the Makah Tribe’s made a condition to the granting, States; Continuation of Treaty Right Hunting restoration, or continuing validity of any D. Obtain from the Denied Person in of Gray Whales export license, license exception, the United States any item subject to the permission, or privilege granted, or to be Regulations with knowledge or reason AGENCY: National Marine Fisheries granted, to Sunford, Accordingly, if to know that the item will be, or is Service (NMFS), National Oceanic and
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49912 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
Atmospheric Administration (NOAA), 3. October 11, 2005, 6:30 p.m. – 10 quota of 620 gray whales for 2003 Commerce. p.m., South Lake Union Park, 860 Terry through 2007, on the basis of a joint ACTION: Notice; scoping meetings. Avenue North (The Naval Reserve request by the Russian Federation Building), Seattle, WA. (approved for 600 whales) and the SUMMARY: We intend to conduct public The meeting format has been designed United States (approved for 20 whales). scoping meetings to gather information so that the public can constructively The United States’ request was made on to prepare an Environmental Impact assist NMFS in development of the draft behalf of the Makah. On March 6, 2003 Statement (EIS) pursuant to the National EIS, and will generally include NMFS initiated an EIS to assess the Environmental Policy Act (NEPA), presentations and small group work environmental impacts of allocating the related to the Makah Tribe’s request that sessions. More details regarding meeting 2003 through 2007 quota to the Makah NMFS waive the take moratorium of the format will be posted under the ‘‘gray by soliciting comments and information Marine Mammal Protection Act whale’’ link at http://www.nwr.noaa.gov to facilitate the environmental analysis (MMPA) to allow for treaty right by mid-September 2005. (68 FR 10703). Due to litigation hunting of eastern North Pacific gray Reasonable Accommodation (described below), NMFS did not whales in usual and accustomed complete the EIS and did not allocate grounds off the coast of Washington Persons needing reasonable the quota under the WCA. The Makah State. This notice briefly describes the accommodations to attend and have not conducted subsistence hunts to background of the Makah’s request for participate in the public meetings date under the 2003 through 2007 IWC waiver; gives dates, times, and locations should contact Kassandra Brown (see quota. of public scoping meetings; identifies a FOR FURTHER INFORMATION CONTACT). To On June 7, 2004, the Ninth Circuit set of preliminary alternatives to serve allow sufficient time to process Court of Appeals in the second as a starting point for discussions; and requests, please call at least 10 business amended version of Anderson v. Evans, terminates the prior notice of intent to days prior to the relevant meeting(s). 371 F.3d 475, held that the Tribe, to prepare an EIS on a similar action. Information regarding the Makah’s pursue any treaty rights for whaling, request is available in alternative must comply with the process DATES: Three public scoping meetings formats upon request. prescribed in the MMPA (16 U.S.C. are scheduled: 1361 et seq.) for authorizing ‘‘take’’ of 1. October 5, 2005, Neah Bay, WA. Background marine mammals otherwise prohibited 2. October 6, 2005, Port Angeles, WA. The Makah Indian Tribe of by a moratorium in section 101(a)(16 3. October 11, 2005, Seattle, WA. Washington State (Makah) seeks to U.S.C. 1371(a)). The term ≥take≥ means SUPPLEMENTARY INFORMATION See for continue its subsistence hunt(s) of to harass, hunt, capture, or kill, or specific times and locations of the eastern North Pacific (ENP) gray whales, attempt to harass, hunt, capture, or kill public meetings. a tradition dating back at least 1,500 any marine mammal (16 U.S.C. In addition to the meetings, written or years. The Makah’s right to hunt whales 1362(13)). Subsequent to the Anderson electronic comments from all interested at usual and accustomed grounds and v. Evans ruling, the Makah submitted a parties are encouraged and must be stations off the coast of Washington was request for a limited waiver of the received no later than 5 p.m. PDT secured in Article 4 of the 1855 Treaty moratorium on taking marine mammals, October 24, 2005. of Neah Bay in exchange for most of the which we received on February 14, ADDRESSES: All comments concerning land in the Olympic Peninsula. The 2005. We published notice of preparation of the EIS and NEPA Treaty of Neah Bay is the primary availability of the waiver request for process should be addressed to: instrument defining the legal public inspection on March 3, 2005 (70 Kassandra Brown, NMFS Northwest relationship between the United States FR 10369), available online at http:// Region, Building 1, 7600 Sand Point Government and the Makah. www.nmfs.noaa.gov/pr/international/ Way NE, Seattle, WA 98115. Comments The Makah hunted whales until the makah (soon to be available on the may also be submitted via fax (206)526- 1920s when commercial whaling had NMFS Northwest Region website under 6426, Attn: Makah Tribe Whale Hunt drastically reduced the numbers of ENP the ‘‘gray whale’’ link at http:// EIS, or by electronic mail to gray whales available to the Makah www.nwr.noaa.gov). [email protected] with a subject hunters for harvest. Prior to enactment To exercise subsistence hunting treaty line containing the document identifier: of the Endangered Species Act (of 1973 rights of gray whales, the Makah Tribe Makah Whale EIS. 16 U.S.C. 1351 et seq.), the U.S. Fish must undergo three separate but related FOR FURTHER INFORMATION CONTACT: and Wildlife Service included gray processes: (1) The United States must Kassandra Brown, NMFS Northwest whales (among several genera of baleen obtain an aboriginal subsistence quota Region, (206)526–4348. whales) on its 1970 list of endangered from the IWC on the Makah Tribe’s species (35 FR 8491, June 2, 1970). The SUPPLEMENTARY INFORMATION: behalf, (2) NMFS must decide whether ENP distinct population segment was to waive the MMPA take moratorium for Public Scoping Meetings subsequently delisted on June 16, 1994 the Makah Tribe, including conducting (59 FR 31094). In 1999, Makah hunters a NEPA review and issuing possible Specific Times and Locations killed one ENP gray whale pursuant to regulations and permits (see Proposed Public scoping meetings will be held an aboriginal subsistence harvest quota Action for more details), and (3) NMFS at the following addresses and times: granted for 1998 through 2002 by the must allocate the IWC quota under the 1. October 5, 2005, 6:30 p.m. – 9:30 International Whaling Commission WCA. More information regarding these p.m., Makah Tribal Council Community (IWC) and domestically implemented by processes will soon be available to the Hall, 81 3rd Avenue (Makah Passage), NMFS under the Whaling Convention public under the NMFS Northwest Neah Bay, WA. Act (WCA)(16 U.S.C. 916 et seq.). Due Region website ‘‘gray whale’’ link at 2. October 6, 2005, 6:30 p.m. – 9:30 to a series of lawsuits, no whales were http://www.nwr.noaa.gov. The NEPA p.m., Vern Burton Memorial hunted by the Makah for the remainder review initiated by this notice of intent Community Center, 308 East 4th Street of the 1998 through 2002 quota. is to comply with process number (2) (corner of 4th Street and Peabody Street), In May 2002, the IWC approved described above, which requires Port Angeles, WA. another aboriginal subsistence harvest preparation of a site-specific EIS related
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49913
to the Makah Tribe’s request for a actions to determine if the actions may contained in the proposed action that waiver of the MMPA take moratorium. affect the human environment, and in would maximize the likelihood of recognition of the Ninth Circuit Court of taking a migrating whale (and minimize Proposed Action Appeals ruling in Anderson v. Evans, the likelihood of taking a PCFA whale). The Makah’s proposed action is to we intend to conduct public scoping Request for Comments hunt up to 20 ENP gray whales during meetings and to prepare an EIS. Under a 5-year period, subject to a maximum NEPA, a reasonable range of alternatives We provide this notice to: (1) Advise of five gray whales in any calendar year, to a proposed action must be developed other agencies and the public of our within its adjudicated usual and and considered in our environmental intentions, (2) obtain suggestions and accustomed grounds (See, United States review. Alternatives considered for information on the scope of issues to v. Washington, 626 F.Supp. 1405, 1467 analysis in this EIS may include: include in the EIS, (3) terminate the (W.D. Wash 1985)), subject to quotas variations in the scope of the hunting prior notice of intent to prepare an EIS granted by the IWC. The Makah activities, variations in the hunting on allocation of the 2003 through 2007 proposes to hunt up to seven gray location, or a combination of these quota (68 FR 10703) published on whales per year. The Makah’s proposal elements. In addition, the EIS will March 6, 2003. Comments and to continue subsistence hunting of gray identify potentially significant direct, suggestions received during the prior whales includes other standards for indirect, and cumulative impacts on public comment period for the 2003 hunting, such as: (1) time and area geology and soils, air quality, water through 2007 quota allocation (March 6 restrictions designed to avoid any quality, other fish and wildlife species through April 21, 2003), will be intentional harvest of gray whales and their habitat, vegetation, considered in developing the current comprising the Pacific Coast Feeding socioeconomics/tourism, treaty rights EIS. Other comments and suggestions Aggregation (PCFA), (2) monitoring and and Federal trust responsibilities, are invited from all interested parties to adaptive management measures to environmental justice, cultural ensure that the full range of issues ensure that any incidental harvest of resources, noise, aesthetics, related to the Makah’s waiver request gray whales from the PCFA remains at transportation, public services, and and all significant issues are identified. or below the annual strike limit, (3) human health and safety, and other We request that comments be as specific measures to ensure that hunting is environmental issues that could occur as possible. We seek public input on the conducted in the most humane manner with the implementation of the Makah’s scope of the required NEPA analysis, practicable, consistent with continued proposed action and alternatives. For all including the range of reasonable use of traditional hunting methods, and potentially significant impacts, the EIS alternatives; associated impacts of any (4) measures to protect public safety. will identify avoidance, minimization, alternatives on the human environment, The full waiver request is posted online and mitigation measures to reduce these including geology and soils, air quality, at http://www.nmfs.noaa.gov/pr/ impacts, where feasible, to a level below water quality, other fish and wildlife international/makah, and will soon be significance. species and their habitat, vegetation, available at NMFS Northwest Region’s We have identified the following socioeconomics/tourism, treaty rights website at http://www.nwr.noaa.gov preliminary alternatives for public and Federal trust responsibilities, under the ‘‘gray whale’’ link. comment during the public scoping environmental justice, cultural Based on the Makah’s waiver request, period, and encourage information on the Federal action consists of three resources, noise, aesthetics, additional alternatives to consider: transportation, public services, and parts: (1) Waiving the moratorium on Alternative 1: No Action - Under the human health and safety; and suitable take of marine mammals under section No Action Alternative, we would not mitigation measures. 101(a)(3)(A)(16 U.S.C. 1371(3)(A)) of the approve the requested whale hunting, MMPA, and subsequently (2) would not grant the waiver of the Comments concerning this promulgating hunting regulations moratorium on take under the MMPA, environmental review process should be implementing the waiver in accordance nor issue the necessary regulations and directed to NMFS (see ADDRESSES). See with section 103 (16 U.S.C. 1373) of the permits. FOR FURTHER INFORMATION CONTACT for MMPA, and (3) issuing any necessary Alternative 2: The Proposed Action - questions. All comments and material permit(s) to the Makah for whale Under the proposed action, the Makah received, including names and hunting. Tribe would be allowed to continue addresses, will become part of the If NMFS waives the MMPA take treaty right subsistence hunting of gray administrative record and may be moratorium and issues the necessary whales imposing time and area released to the public. regulations and permit(s), the Makah restrictions designed to target migrating Authority would be allowed to continue whales and to avoid any intentional subsistence hunting of ENP gray whales, harvest of whales from the PCFA. We The environmental review of subject to IWC quotas and allocation of would grant the waiver of the continuation of the Makah subsistence those quotas under the WCA. The NEPA moratorium on take under the MMPA gray whale hunting will be conducted review initiated by this notice of intent, and issue the necessary regulations and under the authority and in accordance therefore, involves preparation of a site- permits. with the requirements of NEPA, Council specific EIS related to the Makah Tribe’s Alternative 3: The proposed action on Environmental Quality Regulations proposed action of continuing treaty would be modified to allow limited take (40 CFR 1500-1508), other applicable right subsistence ENP whale hunting of gray whales from the PCFA during Federal laws and regulations, and (i.e., request for a waiver of the MMPA hunts. policies and procedures of NMFS for take moratorium), and alternatives to Alternative 4: The proposed action compliance with those regulations. This the waiver request. would be modified to remove time and notice is being furnished in accordance area restrictions from the hunts. with 40 CFR 1501.7 to obtain Alternatives Alternative 5: The proposed action suggestions and information from other Pursuant to NEPA, which requires would be modified to allow hunting to agencies and the public on the scope of Federal agencies to conduct an target migrating whales, imposing time issues and alternatives to be addressed environmental analysis of proposed and area restrictions different than those in the EIS.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49914 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
Dated: August 19, 2005. SUPPLEMENTARY INFORMATION: offices, military exchanges, William T. Hogarth, commissaries, water treatment facilities, Background Assistant Administrator for Fisheries, storage facilities, schools, housing, National Marine Fisheries Service. Section 101(a)(5)(A) of the MMPA (16 motor pools, laundries, morale, welfare [FR Doc. 05–16940 Filed 8–24–05; 8:45 am] U.S.C. 1361 et seq.) directs the Secretary and recreation activities, shops, and of Commerce to allow, upon request, the BILLING CODE 3510–22–S mess halls; the operation of industrial incidental, but not intentional taking of activities; or the construction or small numbers of marine mammals by demolition of facilities used for a DEPARTMENT OF COMMERCE U.S. citizens who engage in a specified military readiness activity. activity (other than commercial fishing) NMFS published a proposed rule to National Oceanic and Atmospheric within a specified geographical region if amend its SURTASS LFA sonar final Administration certain findings are made and rule and regulations, to implement regulations are issued. [I.D. 080405A] provisions of the NDAA (69 FR 38873; Authorization may be granted for June 29, 2004). The public comment Taking and Importing Marine periods of 5 years or less if NMFS finds period ended on July 29, 2004. NMFS Mammals; Taking Marine Mammals that the taking will have no more than has not issued a final rule as of the date Incidental to Navy Operations of a negligible impact on the species or of this notice. stock(s), and will not have an Surveillance Towed Array Sensor Summary of LOA Request System Low Frequency Active Sonar unmitigable adverse impact on the availability of the species or stock(s) for NMFS received an application from AGENCY: National Marine Fisheries subsistence uses. In addition, NMFS the U.S. Navy for two LOAs, one Service (NMFS), National Oceanic and must prescribe regulations that include covering the R/V Cory Chouest and one Atmospheric Administration (NOAA), permissible methods of taking and other the USNS IMPECCABLE, under the Commerce. means effecting the least practicable regulations issued on July 16, 2002 (67 ACTION: Notice; issuance of two Letters adverse impact on the species and its FR 46712). The Navy requested that the of Authorization. habitat, and on the availability of the LOAs become effective on August 16, species for subsistence uses, paying 2005. The application requested SUMMARY: In accordance with the particular attention to rookeries, mating authorization, for a period not to exceed Marine Mammal Protection Act grounds, and areas of similar 1 year, to take, by harassment, marine (MMPA), as amended, and significance. The regulations must mammals incidental to employment of implementing regulations, notification include requirements pertaining to the the SURTASS LFA sonar system for is hereby given that NMFS has issued monitoring and reporting of such taking. training, testing and routine military two 1–year Letters of Authorization Regulations governing the taking of operations on the aforementioned ships. (LOAs) to take marine mammals by marine mammals incidental to the U.S. The application’s take estimates are harassment incidental to the U.S. Navy’s Navy’s operation of SURTASS LFA based on 16 nominal 9–day active sonar operation of Surveillance Towed Array sonar were published on July 16, 2002 missions (or equivalent shorter Sensor System Low Frequency Active (67 FR 46712), and remain in effect until missions) between both vessels, (SURTASS LFA) sonar operations to the August 15, 2007. For detailed regardless of which vessel is performing Chief of Naval Operations, Department information on this action, please refer a specific mission, not to exceed a total of the Navy, 2000 Navy Pentagon, to that document. These regulations of 432 hours of LFA sonar transmission Washington, D.C., and persons include mitigation, monitoring, and time combined for both vessels. operating under his authority. reporting requirements for the The specified geographic regions DATES: Effective from August 16, 2005, incidental taking of marine mammals by identified in the application in which through August 15, 2006. the SURTASS LFA sonar system. the Navy proposes to operate SURTASS On November 24, 2003, the President LFA sonar are the following ADDRESSES: Copies of the LOAs and the signed into law the National Defense oceanographic provinces described in Navy’s March 31, 2005 application, Authorization Act of 2004 (NDAA) Longhurst (1998) and identified in 50 which contains a list of references used (Public Law 108–136). Included in this CFR 216.180(a): the Archipelagic Deep in this document, are available by law were amendments to the MMPA Basins Province, the Western Pacific writing to Steve Leathery, Chief, that apply where a ‘‘military readiness Warm Pool Province, and the North Permits, Conservation, and Education activity’’ is concerned. Of specific Pacific Tropical Gyre West Province, all Division, Office of Protected Resources, importance for the SURTASS LFA sonar within the Pacific Trade Wind Biome; National Marine Fisheries Service, 1315 take authorization, the NDAA amended the Kuroshio Current Province and the East-West Highway, Silver Spring, MD section 101(a)(5) of the MMPA to Northern Pacific Transition Zone 20910–3225, by telephoning the contact exempt military readiness activities Province within the Pacific Westerly listed here (see FOR FURTHER from the ‘‘specified geographical Winds Biome; the North Pacific INFORMATION CONTACT), or online at: region’’ and ‘‘small numbers’’ Epicontinental Sea Province within the l http://www.nmfs.noaa.gov/prot res/ requirements. The term ‘‘military Pacific Polar Biome; and the China Sea l PR2/Small Take/ readiness activity’’ is defined in Public Coastal Province within the North l smalltake info.htm#applications. Law 107–314 (16 U.S.C. 703 note) to Pacific Coastal Biome. The operational Documents cited in this notice may be include all training and operations of areas proposed in the Navy’s viewed, by appointment, during regular the Armed Forces that relate to combat; application are portions of the provinces business hours, at the aforementioned and the adequate and realistic testing of but do not encompass the entire area of address. military equipment, vehicles, weapons the provinces. Due to critical naval FOR FURTHER INFORMATION CONTACT: Jolie and sensors for proper operation and warfare requirements, the U.S. Navy has Harrison (ext 166) or Kenneth suitability for combat use. The term identified the necessity for both Hollingshead (ext 128), Office of expressly does not include the routine SURTASS LFA sonar vessels to be Protected Resources, NMFS, (301) 713– operation of installation operating stationed in the North Pacific Ocean 2289. support functions, such as military during fiscal year 2006.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49915
Summary of Activity Under the Current Post-operational incidental harassment training, testing and routine military LOAs estimates indicate that there were no operations. Issuance of these two LOAs In compliance with the 2004–2005 marine mammal exposures to received is based on findings, described in the LOAs, on May 28, 2005, the Navy levels at or above 180 dB (Navy, 2005). preamble to the final rule (67 FR 46712, The percentage of marine mammal submitted the annual report on July 16, 2002) and supported by stocks estimated to be exposed to noise SURTASS LFA sonar operations. A information contained in the Navy’s between 120 and 180 dB (re 1 microPa) summary of that report (Navy, 2005) required annual report on SURTASS from the LFA sonar array, both pre- and follows. LFA sonar, that the activities described post-operational risk assessment During the period between February under these two LOAs will have no estimates, were all below the 12–percent 16, 2004 and February 15, 2005 (the more than a negligible impact on marine maximum percentage authorized under reporting period required under the mammal stocks and will not have an the LOAs. The majority of the estimates 2004 LOAs), the R/V Cory Chouest unmitigable adverse impact on the were below 1 percent; however, there availability of the affected marine operated in the Philippine Sea in the were marine mammal stocks at all three winter and spring of 2004. The RV Cory mammal stocks for subsistence uses. sites with more than 1 percent estimated These LOAs also comply with the Chouest conducted four training exposed to between 120 and 180 dB: (1) missions covering a period of 38.8 days NDAA amendments to the MMPA. east of Japan, the short-finned pilot These LOAs remain valid through with 93.3 hours of transmissions by the whale (1.67 percent) and the false killer LFA sonar array. The purposes of the August 15, 2006, provided the Navy whale (1.58 percent); (2) in the North remains in conformance with the training missions are to provide fully Philippine Sea, the short-finned pilot functional hardware and software, conditions of the regulations and the whale (1.50 percent); and (3) in the West LOAs, and the mitigation, monitoring, extensive personnel training, job Philippine Sea, the Pacific white-sided experience, and operational/system and reporting requirements described in dolphin (9.72 percent), the melon- 50 CFR 216.184–216.186 (67 FR 46712, monitoring in a variety of LFA sonar headed whale (9.46 percent), the false mission scenarios and acoustic July 16, 2002) and in the LOAs are killer whale (4.22 percent), Risso’s undertaken. environments. All LFA sonar operations dolphin (3.6 percent), the short-finned included the operation of the High- pilot whale (3.46 percent), the Dated: August 22, 2005. Frequency Marine Mammal Monitoring humpback whale (3.27 percent), the Michael Payne, (HF/M3) sonar and compliance with all bottlenose dolphin (2.45 percent), the Acting Director, Office of Protected Resources, mitigation requirements. Minke whale (1.75 percent), the pygmy National Marine Fisheries Service. The second SURTASS LFA sonar killer whale (1.69 percent), Blainville’s [FR Doc. 05–16938 Filed 8–24–05; 8:45 am] system, onboard the USNS beaked whale (1.27 percent), and the BILLING CODE 3510–22–S IMPECCABLE (T-AGOS 23), rough-toothed dolphin (1.10 percent). commenced sea trials in late February During the nine missions, no sightings 2004. During the spring and summer of of marine mammals were noted by the 2004, the USNS IMPECCABLE trained personnel responsible for DEPARTMENT OF DEFENSE conducted five training missions in the marine animal monitoring, and no Office of the Secretary; Defense Philippine Sea and the northwest marine mammal vocalizations were Pacific Ocean covering a period of 26.2 identified on the SURTASS passive Science Board days with 63.0 hours of transmissions sonar displays. AGENCY: Department of Defense (DoD). by the LFA array. All LFA sonar The HF/M3 sonar operated ACTION: Notice of Advisory Committee operations included the operation of the continuously during the course of the meeting; improvised explosive devices HF/M3 sonar and compliance with all missions in accordance with the LOAs. (IEDs). mitigation requirements. As required by the LOAs, the HF/M3 In summary, SURTASS LFA sonar sonar was ‘‘ramped up’’ prior to SUMMARY: The Defense Science Board operations from February 16, 2004 to operations. During seven of the nine Task Force on Improvised Explosive February 15, 2005 consisted of nine missions, there were 12 HF/M3 alerts Devices (IEDs) will meet in closed training missions totaling 65.1 days of that were identified as possible marine session on September 13, 2005, at operations with 156.3 hours of active mammal detections. No additional Strategic Analysis, Inc., 3601 Wilson transmissions by the LFA sonar array. correlating data were available to further Boulevard, Arlington, VA. The Task Operations were conducted at three verify, identify, or clarify these Force will explore methods and different sites in the Philippine sea detections. Because these detections met techniques to significantly reduce the located in the Kuroshio Current and the minimum shutdown criteria (i.e., effects of IEDs on U.S. and coalition North Pacific Tropical Gyre West multiple detections (two or more) forces in operations such as are Provinces. within the same area), the Navy’s currently being conducted in Operation Summary of Monitoring Under the requisite protocols were followed, and Iraqi Freedom (OIF). The Task Force 2004–2005 LOAs LFA sonar transmissions were should examine ways to counter the use suspended a total of 12 times. In as well as mitigate the consequences of In the annual report, the Navy addition, during one mission there were IEDs. The Task Force should examine provides a post-operational assessment two suspensions of LFA sonar ways to counter the use as well as of whether incidental harassment operations due to HF/M3 sonar software mitigate the consequences of IEDs. occurred within the LFA sonar failures. mitigation and buffer zones and DATES: September 13, 2005. estimates of the percentages of marine Authorization ADDRESSES: Strategic Analysis, Inc., mammal stocks possibly harassed using Accordingly, NMFS has issued two 3601 Wilson Boulevard, Arlington, VA. predictive modeling based on dates/ LOAs to the U.S. Navy, authorizing the FOR FURTHER INFORMATION CONTACT: LTC times/location of actual operations, incidental harassment of marine Scott Dolgoff, USA, Defense Science system characteristics, oceanographic mammals incidental to operating the Board, 3140 Defense Pentagon, Room conditions, and animal demographics. two SURTASS LFA sonar systems for 3C553, Washington, DC 20301–3140, via
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49916 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
e-mail at [email protected], or via DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY phone at (703) 571–0082. Federal Energy Regulatory Federal Energy Regulatory SUPPLEMENTARY INFORMATION: The Commission Commission mission of the Defense Science Board is to advise the Secretary of Defense and [Docket No. RT01–74–000] [Docket No. RP05–565–000] the Under Secretary of Defense for GridSouth Transco, L.L.C., Carolina Acquisition, Technology & Logistics on Power & Light Company, Duke Energy Natural Gas Pipeline Company of scientific and technical matters as they Corporation, South Carolina Electric & America; Notice of Emergency Petition affect the perceived needs of the Gas Company; Notice of Filing for Waivers Department of Defense. At these meetings, the Defense Science Board August 16, 2005. August 18, 2005. Task Force will consider the entire Take notice that on August 11, 2005, Take notice that on August 16, 2005, spectrum of intervention objects, Carolina Power & Light Company, Duke Natural Gas Pipeline Company of including deterrence, dissuasion, Energy Corporation, and South Carolina America (Natural), pursuant to Rule 207 remote pre-detonation, remote Electric & Gas Company, (collectively, of the Federal Energy Regulatory disarming, elimination of sources and/ GridSouth Sponsors) notified the Commission’s Rules of Practice and or manufacturing facilities, discovery Commission that they have elected to Procedure, submitted an emergency and remove of critical personnel, terminate the GridSouth Transco petition for waivers to help its shippers project. discovery and removal of employed respond to what it states is a force Any person desiring to intervene or to majeure situation that will temporarily devices, or anything else that has the protest this filing must file in reduce capacity on a portion of end effect of either lowering the value accordance with Rules 211 and 214 of Natural’s system. Natural requests that or raising the cost of employing IEDs as the Commission’s Rules of Practice and the Commission grant this petition by an insurgent or terrorist weapons of Procedure (18 CFR 385.211, 385.214). no later than August 23, 2005 to allow choice. The Task Force will have four Protests will be considered by the its ‘‘customers and the market generally primary objectives: Assess the current Commission in determining the to mitigate the impact of the capacity state of the art of allied forces in appropriate action to be taken, but will reduction’’. countering adversary use of IEDs in not serve to make protestants parties to Any person desiring to protest this operations such as OIF; recommend a the proceeding. Any person wishing to filing must file in accordance with Rule mid- to-long-term set of integrated become a party must file a notice of 211 of the Commission’s Rules of activities aimed at improving the state intervention or motion to intervene, as Practice and Procedure (18 CFR of the art in reducing the effect of IEDs appropriate. Such notices, motions, or 385.211). Protests to this filing will be over the next three to ten years; provide protests must be filed on or before the considered by the Commission in recommendations on short term (over comment date. Anyone filing a motion determining the appropriate action to be the next six months to three years) to intervene or protest must serve a copy taken, but will not serve to make incremental improvements in U.S. of that document on the Applicant and protestants parties to the proceeding. forces’ ability to counter or reduce the all the parties in this proceeding. Such protests must be filed in effectiveness of IEDs, and identify any The Commission encourages accordance with the provisions of synergies that may exist between electronic submission of protests and Section 154.210 of the Commission’s current counter-IED and countermine interventions in lieu of paper using the regulations (18 CFR 154.210). Anyone ‘‘eFiling’’ link at http://www.ferc.gov. efforts. filing a protest must serve a copy of that Persons unable to file electronically In accordance with section 10(d) of document on all the parties to the should submit an original and 14 copies proceeding. the Federal Advisory Committee Act, of the protest or intervention to the The Commission encourages Pub. L. 92–463, as amended (5 U.S.C. Federal Energy Regulatory Commission, electronic submission of protests and App. 2), it has been determined that this 888 First Street, NE., Washington, DC interventions in lieu of paper using the Defense Science Board Task Force 20426. ‘‘eFiling’’ link at http://www.ferc.gov. meeting concerns matters listed in 5 This filing is accessible on-line at Persons unable to file electronically U.S.C. 552b(c)(1) and that, accordingly, http://www.ferc.gov, using the ‘‘eLibrary’’ link and is available for should submit an original and 14 copies this meeting will be closed to the of the protest or intervention to the public. review in the Commission’s Public Reference Room in Washington, DC. Federal Energy Regulatory Commission, Dated: August 19, 2005. There is an ‘‘eSubscription’’ link on the 888 First Street, NE., Washington, DC Jeannette Owings-Ballard, Web site that enables subscribers to 20426. OSD Federal Register Liaison Officer, receive e-mail notification when a This filing is accessible on-line at Department of Defense. document is added to a subscribed http://www.ferc.gov, using the [FR Doc. 05–16911 Filed 8–24–05; 8:45 am] docket(s). For assistance with any FERC ‘‘eLibrary’’ link and is available for review in the Commission’s Public BILLING CODE 5001–06–P Online service, please e-mail [email protected], or call Reference Room in Washington, DC. (866) 208–3676 (toll free). For TTY, call There is an ‘‘eSubscription’’ link on the (202) 502–8659. web site that enables subscribers to Comment Date: 5 p.m. Eastern Time receive email notification when a on September 15, 2005. document is added to a subscribed docket(s). For assistance with any FERC Magalie R. Salas, Online service, please email Secretary. [email protected], or call [FR Doc. E5–4645 Filed 8–24–05; 8:45 am] (866) 208–3676 (toll free). For TTY, call BILLING CODE 6717–01–P (202) 502–8659.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49917
Comment Date: 5 p.m. Eastern Time review in the Commission’s Public Absent a request to be heard in on August 22, 2005. Reference Room in Washington, DC. opposition by the deadline above, Vesta There is an ‘‘eSubscription’’ link on the Trading is authorized to issue securities Linda Mitry, Web site that enables subscribers to and assume obligations or liabilities as Deputy Secretary. receive e-mail notification when a a guarantor, indorser, surety, or [FR Doc. E5–4639 Filed 8–24–05; 8:45 am] document is added to a subscribed otherwise in respect of any security of BILLING CODE 6717–01–P docket(s). For assistance with any FERC another person; provided that such Online service, please e-mail issuance or assumption is for some [email protected], or call lawful object within the corporate DEPARTMENT OF ENERGY (866) 208–3676 (toll free). For TTY, call purposes of Vesta Trading, compatible Federal Energy Regulatory (202) 502–8659. with the public interest, and is Commission Comment Date: 5 p.m. Eastern Time reasonably necessary or appropriate for on August 30, 2005. such purposes. [Docket Nos. RT04–1–014, ER04–48–014] The Commission reserves the right to Magalie R. Salas, require a further showing that neither Southwest Power Pool, Inc.; Notice of Secretary. public nor private interests will be Filing [FR Doc. E5–4644 Filed 8–24–05; 8:45 am] adversely affected by continued BILLING CODE 6717–01–P August 16, 2005. approval of Vesta Trading issuances of Take notice that on August 9, 2005, securities or assumptions of liability. Copies of the full text of the Director’s Southwest Power Pool, Inc., (SPP) DEPARTMENT OF ENERGY submitted for filing changes to its Order are available from the Commission’s Public Reference Room, Bylaws and Membership Agreement, in Federal Energy Regulatory 888 First Street, NE., Washington, DC accordance with the Commission’s Commission Order Nos. 2000 and 2000–A, and the 20426. The Order may also be viewed [Docket Nos. ER05–939–000, ER05–939– on the Commission’s Web site at Commission’s Orders issued February 001, ER05–940–000] 11, 2005, March 21, 2005 and May 20, http://www.ferc.gov, using the eLibrary link. Enter the docket number excluding 2005, in the above-referenced dockets. Vesta Trading LP; Vesta Capital SPP requests an effective date of July 26, the last three digits in the docket Partners, LP; Notice of Issuance of number filed to access the document. 2005. Order SPP states that it has served a copy of Comments, protests, and interventions its filing on all parties to the proceeding. August 18, 2005. may be filed electronically via the In addition, SPP also states that a copy Vesta Trading LP (Vesta Trading) filed Internet in lieu of paper. See, 18 CFR of SPP’s filing had been served on all an application for market-based rate 385.2001(a)(1)(iii) and the instructions state commissions within SPP’s service authority, with an accompanying rate on the Commission’s Web site under the region. Finally, SPP indicates that SPP’s tariff. The proposed rate tariff provides ‘‘e-Filing’’ link. The Commission filing will be posted on the SPP Web for the sales of capacity, energy and strongly encourages electronic filings. page (http://www.spp.org.). ancillary at market-based rates. Vesta Magalie R. Salas, Any person desiring to intervene or to Trading also requested waiver of various Secretary. protest this filing must file in Commission regulations. In particular, [FR Doc. E5–4643 Filed 8–24–05; 8:45 am] accordance with Rules 211 and 214 of Vesta Trading requested that the BILLING CODE 6717–01–P the Commission’s Rules of Practice and Commission grant blanket approval Procedure (18 CFR 385.211, 385.214). under 18 CFR Part 34 of all future Protests will be considered by the issuances of securities and assumptions DEPARTMENT OF ENERGY Commission in determining the of liability by Vesta Trading. appropriate action to be taken, but will On August 18, 2005, pursuant to Federal Energy Regulatory not serve to make protestants parties to delegated authority, the Director, Commission the proceeding. Any person wishing to Division of Tariffs and Market [Docket No. EL05–142–000] become a party must file a notice of Development—South, granted the intervention or motion to intervene, as request for blanket approval under Part Ocean Peaking Power, L.L.C. v. Jersey appropriate. Such notices, motions, or 34. The Director’s order also stated that Central Power and Light Company; protests must be filed on or before the the Commission would publish a Notice of Complaint comment date. Anyone filing a motion separate notice in the Federal Register to intervene or protest must serve a copy establishing a period of time for the August 18, 2005. of that document on the Applicant and filing of protests. Accordingly, any Take notice that on August 16, 2005, all the parties in this proceeding. person desiring to be heard or to protest Ocean Peaking Power, L.L.C. (OPP) filed The Commission encourages the blanket approval of issuances of a complaint with the Commission electronic submission of protests and securities or assumptions of liability by against Jersey Central Power and Light interventions in lieu of paper using the Vesta Trading should file a motion to Company (JCPL) pursuant to Rule 206 of ‘‘eFiling’’ link at http://www.ferc.gov. intervene or protest with the Federal the Commission’s Rules of Practice and Persons unable to file electronically Energy Regulatory Commission, 888 Procedure (18 CFR 385.306) for should submit an original and 14 copies First Street, NE., Washington, DC 20426, impermissibly charging OPP of the protest or intervention to the in accordance with Rules 211 and 214 distribution charges for deliveries of Federal Energy Regulatory Commission, of the Commission’s Rules of Practice Station Power to OPP’s Lakewood, New 888 First Street, NE., Washington, DC and Procedure. 18 CFR 385.211, 385.214 Jersey facility when no JCPL local 20426. (2004). distribution facilities are used to deliver This filing is accessible on-line at Notice is hereby given that the the Station Power. http://www.ferc.gov, using the deadline for filing motions to intervene Any person desiring to intervene or to ‘‘eLibrary’’ link and is available for or protest is September 19, 2005. protest this filing must file in
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49918 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
accordance with Rules 211 and 214 of e. Name of Project: Byram n. Competing Preliminary Permit— the Commission’s Rules of Practice and Hydroelectric Project. Anyone desiring to file a competing Procedure (18 CFR 385.211, 385.214). f. Location: On the Clover Creek application for preliminary permit for a Protests will be considered by the portion of the Main Canal of the North proposed project must submit the Commission in determining the Side Canal Company and Little Wood competing application itself, or a notice appropriate action to be taken, but will River, near Gooding, in Gooding of intent to file such an application, to not serve to make protestants parties to County, ID. the Commission on or before the the proceeding. Any person wishing to g. Filed Pursuant to: Federal Power specified comment date for the become a party must file a notice of Act, 16 U.S.C. 791(a)–825(r). particular application (see 18 CFR 4.36). intervention or motion to intervene, as h. Applicant Contact: Mr. David A. Submission of a timely notice of intent appropriate. Respondent’s answer and O’Day, P.E., Clover Creek Hydro, LLC, allows an interested person to file the all interventions, or protests must be P.O. Box 603, Boise, ID 83701–0603, competing preliminary permit filed on or before the comment date. (208) 861–1788. application no later than 30 days after The Respondent’s answer, motions to i. FERC Contact: Etta Foster, (202) the specified comment date for the intervene, and protests must be served 502–8769. particular application. A competing on the Complainants. j. Deadline for filing comments, preliminary permit application must The Commission encourages protests, and motions to intervene: 60 conform with 18 CFR 4.30(b) and 4.36. electronic submission of protests and days from the issuance date of this o. Competing Development interventions in lieu of paper using the notice. Application—Any qualified ‘‘eFiling’’ link at http://www.ferc.gov. All documents (original and eight development applicant desiring to file a Persons unable to file electronically copies) should be filed with Magalie R. competing development application should submit an original and 14 copies Salas, Secretary, Federal Energy must submit to the Commission, on or of the protest or intervention to the Regulatory Commission, 888 First before a specified comment date for the Federal Energy Regulatory Commission, Street, NE., Washington, DC 20426. particular application, either a 888 First Street, NE., Washington, DC Please include the project number (P– competing development application or a 20426. 12582–000) on any comments, protests, notice of intent to file such an This filing is accessible on-line at or motions filed. application. Submission of a timely notice of intent to file a development http://www.ferc.gov, using the k. Description of Project: The application allows an interested person ‘‘eLibrary’’ link and is available for proposed project would consist of: (1) A to file the competing application no review in the Commission’s Public diversion canal of undetermined later than 120 days after the specified Reference Room in Washington, DC. dimensions (depending on depth to comment date for the particular There is an ‘‘eSubscription’’ link on the rock); (2) an overflow weir; (3) a 96- application. A competing license Web site that enables subscribers to inch, 400-foot-long penstock; (3) a application must conform with 18 CFR receive email notification when a powerhouse containing three to four 4.30(b) and 4.36. document is added to a subscribed turbines with an installed capacity of p. Notice of Intent—a notice of intent docket(s). For assistance with any FERC 1.0 MW; (4) a 12.5 kV transmission line, must specify the exact name, business 1 Online service, please email approximately ⁄4-mile-long address, and telephone number of the [email protected], or call interconnected to the local distribution prospective applicant, and must include (866) 208–3676 (toll free). For TTY, call lines of the local utility; and (5) an unequivocal statement of intent to (202) 502–8659. appurtenant facilities. submit, if such an application may be Comment Date: 5 pm Eastern Time on The project would have an estimated filed, either a preliminary permit September 6, 2005. annual generation of 4,888,000 kWh. application or a development The applicant plans to negotiate a Linda Mitry, application (specify which type of power sales agreement with the Idaho application). A notice of intent must be Deputy Secretary. Power Company. [FR Doc. E5–4642 Filed 8–24–05; 8:45 am] served on the applicant(s) named in this l. Location of Application: A copy of public notice. BILLING CODE 6717–01–P the application is available for q. Proposed Scope of Studies under inspection and reproduction at the Permit—A preliminary permit, if issued, Commission in the Public Reference DEPARTMENT OF ENERGY does not authorize construction. The Room, located at 888 First Street, NE., term of the proposed preliminary permit Federal Energy Regulatory Room 2A, Washington, DC 20426, or by would be 36 months. The work Commission calling (202) 502–8371. This filing may proposed under the preliminary permit also be viewed on the Commission’s would include economic analysis, Notice of Application Accepting for Web site at http://www.ferc.gov using preparation of preliminary engineering Filing and Soliciting Motions To the ‘‘eLibrary’’ link. Enter the docket plans, and a study of environmental Intervene, Protests and Comments number excluding the last three digits in impacts. Based on the results of these the docket number field to access the studies, the Applicant would decide August 18, 2005. document. For assistance, call toll-free whether to proceed with the preparation Take notice that the following 1–866–208–3676 or e-mail of a development application to hydroelectric application has been filed [email protected]. For TTY, construct and operate the project. with the Commission and is available call (202) 502–8659. A copy is also r. Comments, Protests, or Motions to for public inspection: available for inspection and Intervene—Anyone may submit a. Type of Application: Preliminary reproduction at the address in item h. comments, a protest, or a motion to Permit. above. intervene in accordance with the b. Project No.: 12582–000. m. Individuals desiring to be included requirements of Rules of Practice and c. Date filed: April 11, 2005. on the Commission’s mailing list should Procedure, 18 CFR 385.210, .211, .214. d. Applicant: Clover Creek Hydro, so indicate by writing to the Secretary In determining the appropriate action to LLC. of the Commission. take, the Commission will consider all
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49919
protests or other comments filed, but b. Project Numbers: P–2436–212, P– at http://www.ferc.gov/docs-filing/ only those who file a motion to 2447–201, P–2448–209, P–2449–179, P– esubscription.asp to be notified via e- intervene in accordance with the 2450–177, P–2451–172, P–2452–186, P– mail of new filings and issuances Commission’s Rules may become a 2453–208, P–2468–184, P–2580–237, related to this or other pending projects. party to the proceeding. Any comments, and P–2599–202. For assistance, call 1–866–208–3676 or protests, or motions to intervene must c. Date Filed: July 25, 2005. e-mail [email protected], be received on or before the specified d. Applicant: Consumers Energy for TTY, call (202) 502–8659. A copy is comment date for the particular Company. also available for inspection and application. e. Name of Projects: Foote Project reproduction at the address in item (h) Comments, protests and interventions (FERC No. 2436), Alcona Project (FERC above. may be filed electronically via the No. 2447), Mio Project (FERC No. 2448), m. Individuals desiring to be included Internet in lieu of paper; See 18 CFR Loud Project (FERC No. 2449), Cook on the Commission’s mailing list should 385.2001 (a)(1)(iii) and the instructions Project (FERC No. 2450), Rogers Project so indicate by writing to the Secretary on the Commission’s Web site under ‘‘e- (FERC No. 2451), Hardy Project (FERC of the Commission. filing’’ link. The Commission strongly No. 2452), Five Channels Project (FERC n. Comments, Protests, or Motions to encourages electronic filing. No. 2453), Croton Project (FERC No. Intervene—Anyone may submit s. Filing and Service of Responsive 2468), Tippy Project (FERC No. 2580), comments, a protest, or a motion to Documents—Any filings must bear in and Hodenpyl Project (FERC No. 2599). intervene in accordance with the f. Location: The projects are located all capital letter the title requirements of Rules of Practice and on the Au Sable, Manistee, and ‘‘COMMENTS’’, Procedure, 18 CFR 385.210, .211, .214. Muskegon Rivers in Iosco, Alcona, ‘‘RECOMMENDATIONS FOR TERMS In determining the appropriate action to Oscoda, Manistee, Wexford, Newaygo AND CONDITIONS’’, ‘‘PROTEST’’, take, the Commission will consider all and Mecosta Counties, MI. ‘‘MOTION TO INTERVENE’’, ‘‘NOTICE protests or other comments filed, but g. Filed Pursuant to: Federal Power OF INTENT’’, or ‘‘COMPETING only those who file a motion to Act, 16 U.S.C. 791(a), 825(r), 799 and APPLICATION’’, as applicable, and the intervene in accordance with the 801. Project Number of the particular h. Applicant Contact: Robert M. Commission’s Rules may become a application to which the filing refers. Neustifter, Consumers Energy Company, party to the proceeding. Any comments, Any of the above-named documents One Energy Plaza, EP11–233, Jackson, protests, or motions to intervene must must be filed by providing the original MI 49201, phone (517) 788–2974. be received on or before the specified and the number of copies provided by i. FERC Contact: Any questions on comment date for the particular the Commission’s regulations to: The this notice should be addressed to application. Secretary, Federal Energy Regulatory Robert Fletcher at (202) 502–8901, or e- o. Filing and Service of Responsive Commission, 888 First Street, NE., mail address: [email protected]. Documents—Any filings must bear in Washington, DC 20426. A copy of any j. Deadline for filing comments and or all capital letters the title motion to intervene must also be served motions: September 19, 2005. ‘‘COMMENTS’’, upon each representative of the k. Description of Request: The ‘‘RECOMMENDATIONS FOR TERMS Applicant specified in the particular licensee filed a settlement offer between AND CONDITIONS’’, ‘‘PROTEST’’, or application. itself, U.S. Forest Service, U.S. Fish and ‘‘MOTION TO INTERVENE’’, as t. Agency Comments—Federal, state, Wildlife Service, Michigan Department applicable, and the Project Number of and local agencies are invited to file of Natural Resources, and Michigan the particular application to which the comments on the described application. Hydro Relicensing Coalition. The filing refers (P–2436, P–2447, P–2448, A copy of the application may be settlement concerns the resolution of P–2449, P–2450, P–2451, P–2452, P– obtained by agencies directly from the various disputes and issues regarding 2453, P–2468, P–2580, and P–2599). All applicant. If an agency does not file the content and application of articles documents (original and eight copies) comments within the time specified for 408, 409, and 414 (415 for the Tippy should be filed with: Magalie R. Salas, filing comments, it will be presumed to Project) for the 11 projects listed. The Secretary, Federal Energy Regulatory have no comments. One copy of an settlement will provide for revised Commission, 888 First Street, NE., agency’s comments must also be sent to amounts of contributions to be made Washington DC 20426. A copy of any the Applicant’s representatives. under these articles which will fund motion to intervene must also be served activities like fish habitat restoration upon each representative of the Linda Mitry, and fish management purposes within Applicant specified in the particular Deputy Secretary. the Muskegon, Manistee, and Au Sable application. [FR Doc. E5–4640 Filed 8–24–05; 8:45 am] River watersheds. The licensee proposes p. Agency Comments—Federal, State, BILLING CODE 6717–01–P to amend the provisions within each of and local agencies are invited to file these articles to reflect the settlement. comments on the described application. l. Locations of the Application: A A copy of the application may be DEPARTMENT OF ENERGY copy of the application is available for obtained by agencies directly from the Federal Energy Regulatory inspection and reproduction at the Applicant. If an agency does not file Commission Commission’s Public Reference Room, comments within the time specified for located at 888 First Street, NE., Room filing comments, it will be presumed to Notice of Application for Amendment 2A, Washington, DC 20426, or by calling have no comments. One copy of an of License and Soliciting Comments, (202) 502–8371. This filing may also be agency’s comments must also be sent to Motions To Intervene, and Protests viewed on the Commission’s Web site at the Applicant’s representatives. http://www.ferc.gov using the q. Comments, protests and August 18, 2005. ‘‘eLibrary’’ link. Enter the docket interventions may be filed electronically a. Type of Application: Applications number excluding the last three digits in via the Internet in lieu of paper. See, 18 for Amendment of Licenses to Reflect the docket number field to access the CFR 385.2001(a)(1)(iii) and the Settlement. document. You may also register online instructions on the Commission’s Web
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49920 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
site at http://www.ferc.gov under the ‘‘e- DC. The EPA Docket Center Public very potent greenhouse gases with Filing’’ link. Reading Room is open from 8:30 a.m. to global warning potentials several 4:30 p.m., Monday through Friday, thousand times that of carbon dioxide Linda Mitry, excluding legal holidays. The telephone and they persist in the atmosphere for Deputy Secretary. number for the Reading Room is (202) thousands of years. CO2 is emitted from [FR Doc. E5–4641 Filed 8–24–05; 8:45 am] 566–1744, and the telephone number for consumption of the carbon anode. EPA BILLING CODE 6717–01–P the Air and Radiation Docket is (202) has developed this ICR to renew 566–1742. An electronic version of the authorization to collect information public docket is available through EPA from companies in the VAIP. ENVIRONMENTAL PROTECTION Dockets (EDOCKET) at http:// Participants voluntarily agree to the AGENCY www.epa.gov/edocket. Use EDOCKET to following: designating a VAIP liaison; [OAR–2003–0034, FRL–7958–6] obtain a copy of the draft collection of undertaking technically feasible and information, submit or view public cost-effective actions to reduce PFC and Agency Information Collection comments, access the index listing of direct CO2 emissions; and reporting to Activities; Proposed Collection; the contents of the public docket, and to EPA, on an annual basis, the PFC and Comment Request; Reporting access those documents in the public CO2 emissions or production parameters Requirements Under EPA’s Voluntary docket that are available electronically. used to estimate emissions. The Aluminum Industrial Partnership Once in the system, ‘‘search,’’ then key information contained in the annual (VAIP), EPA ICR Number 1867.03, OMB in the docket ID number identified reports of VAIP members is used by Control Number 2060–0411 above. EPA to assess the success of the program Any comments related to this ICR in achieving its goals. The information AGENCY: Environmental Protection should be submitted to EPA within 60 contained in the annual reports may be Agency. days of this notice. EPA’s policy is that considered confidential business ACTION: Notice. public comments, whether submitted information and is maintained as such. electronically or in paper, will be made An agency may not conduct or sponsor, SUMMARY: In compliance with the available for public viewing in and a person is not required to respond Paperwork Reduction Act (44 U.S.C. EDOCKET as EPA receives them and to, a collection of information unless it 3501 et seq.), this document announces without change, unless the comment displays a currently valid OMB control that EPA is planning to submit a contains copyrighted material, CBI, or number. The OMB control numbers for continuing Information Collection other information whose public EPA’s regulations in 40 CFR are listed Request (ICR) to the Office of disclosure is restricted by statute. When in 40 CFR part 9. Management and Budget (OMB). This is EPA identifies a comment containing The EPA would like to solicit a request to renew an existing approved copyrighted material, EPA will provide comments to: collection. This ICR is scheduled to a reference to that material in the (i) Evaluate whether the proposed expire on 12/30/05. Before submitting version of the comment that is placed in collection of information is necessary the ICR to OMB for review and EDOCKET. The entire printed comment, for the proper performance of the approval, EPA is soliciting comments on including the copyrighted material, will functions of the Agency, including specific aspects of the proposed be available in the public docket. whether the information will have information collection as described Although identified as an item in the practical utility; below. official docket, information claimed as (ii) Evaluate the accuracy of the DATES: Comments must be submitted on CBI, or whose disclosure is otherwise Agency’s estimate of the burden of the or before October 24, 2005. restricted by statute, is not included in proposed collection of information, including the validity of the ADDRESSES: Submit your comments, the official public docket, and will not methodology and assumptions used; referencing docket ID number OAR– be available for public viewing in EDOCKET. For further information (iii) Enhance the quality, utility, and 2003–0034, to EPA online using clarity of the information to be EDOCKET (our preferred method), by e- about the electronic docket, see EPA’s Federal Register notice describing the collected; and mail to [email protected], or by electronic docket at 67 FR 38102 (May (iv) Minimize the burden of the mail to: EPA Docket Center, 31, 2002), or go to http://www.epa.gov./ collection of information on those who Environmental Protection Agency, Air edocket. are to respond, including through the and Radiation Docket, 6102T, 1200 Affected Entities: Entities potentially use of appropriate automated electronic, Pennsylvania Ave., NW., Washington, affected by this action are those engaged mechanical, or other technological DC 20460. in primary aluminum production. collection techniques or other forms of FOR FURTHER INFORMATION CONTACT: Title: Reporting Requirements under information technology, e.g., permitting Sally Rand, Office of Atmospheric the Voluntary Aluminum Industrial electronic submission of responses. Programs, 6207J, Environmental Partnership (VAIP). Burden Statement: The VAIP is a Protection Agency, 1200 Pennsylvania Abstract: EPA’s Voluntary Aluminum continuing program and, as such, the Ave., NW., Washington, DC 20460; Industrial Partnership (VAIP) was burden for collecting relevant telephone number: 202–343–9739; fax initiated in 1995 and is an important information has not changed number: 202–343–2208; e-mail address: voluntary program contributing to the significantly overtime as data collection rand.sally#epa.gov. overall reduction in emissions of processes have remained the same and SUPPLEMENTARY INFORMATION: EPA has greenhouse gases. This program focuses no new one-time cost activities are established a public docket for this ICR on reducing direct greenhouse gas expected that would impact all under Docket ID number OAR–2003– emissions including perfluocorcarbon respondents. VAIP participants sign a 0034, which is available for public (PFC) and carbon dioxide (CO2) voluntary Memorandum of viewing at the Air and Radiation Docket emissions from the production of Understanding (MOU) which assigns in the EPA Docket Center (EPA/DC), primary aluminum. Seven of the eight responsibilities to EPA and participating EPA West, Room B102, 1301 U.S. producers of primary aluminum companies. The MOU has been signed Constitution Ave., NW., Washington, participate in this program. PFCs are each of the seven participating
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49921
companies and not expected to be SUMMARY: The Environmental Protection reservations, please reference the group revised or renewed. The annual public Agency published a notice in the name ‘‘EPA Multi-Stakeholders reporting and recordkeeping burden for Federal Register of July 16, 2005, Meeting’’. The cutoff date for the this collection of information is concerning a request for comments on reserved block of rooms is Friday, estimated to average 98.5 hours per an information collection request August 26th. response. The projected hour burden for regarding the assessment of indoor air FOR FURTHER INFORMATION CONTACT: Ms. this collection of information is as quality outreach products and services. Patricia Harrigan, Standards and Health follows: The document contained an incorrect Protection Division, MC 4305T, Average Annual Reporting Burden: 82 date. Environmental Protection Agency, 1200 hours. FOR FURTHER INFORMATION CONTACT: John Pennsylvania Ave., NW., Washington, Average Annual RecordKeeping M Hall, 202–343–9453. DC 20460; Telephone number: (202) Burden: 0 hours. 566–1666; Fax number: (202) 566–1054; Average Burden Hours/Response: 82 Correction e-mail address: hours for the annual tracking report; and In the Federal Register of July 16, [email protected]. 16.5 hours associated with additional 2005, in FR Doc. 05–16221, on page SUPPLEMENTARY INFORMATION: The activities such as partnership meetings. 48130, in the first column, correct the purpose of this public meeting is to help Frequency of response=one per DATE caption to read: educate the public on current water respondent per year. Estimated number DATES: Comments must be submitted on quality standards regulations, guidance of respondents per year=7. Cost burden or before October 15, 2005. and practices related to designated uses to respondents ($7,354 per respondent). Dated: July 18, 2005. and use attainability analyses, and to Estimated Total Annualized Cost provide a forum for the public to join in Thomas E. Kelly, Burden: $51,478. discussions, ask questions, and provide Total Labor Costs: $51,478. Director, Indoor Environments Division, feedback. EPA also welcomes written Environmental Protection Agency. Total Capital and Start-up Costs: $0. remarks received by September 21, Estimated Total Operation and [FR Doc. 05–16934 Filed 8–24–05; 8:45 am] 2005, which can be sent to Ms. Harrigan Maintenance Costs: $0. BILLING CODE 6560–50–P by e-mail or by mail at the address listed Purchase of Services Costs: $0. in the FOR FURTHER INFORMATION CONTACT Burden means the total time, effort, or ENVIRONMENTAL PROTECTION section. financial resources expended by persons AGENCY Additional Meetings to generate, maintain, retain, or disclose or provide information to or for a [FRL–7959–9] EPA anticipates announcing and Federal agency. This includes the time holding two additional public meetings needed to review instructions; develop, Notice of a Public Meeting on on these subjects in 2006. One meeting acquire, install, and utilize technology Designated Uses and Use Attainability will likely be held in the midwestern and systems for the purposes of Analyses U.S., and the other will likely be held in the western U.S. collecting, validating, and verifying AGENCY: Environmental Protection information, processing and Agency (EPA). Special Accommodations maintaining information, and disclosing ACTION: and providing information; adjust the Notice of a public meeting. Any person needing special accommodations at this meeting, existing ways to comply with any SUMMARY: The Environmental Protection previously applicable instructions and including wheelchair access, should Agency (EPA) is holding a public contact Ms. Harrigan at the phone requirements; train personnel to be able meeting to discuss designated uses and to respond to a collection of number or e-mail address listed in the use attainability analyses. The meeting FOR FURTHER INFORMATION CONTACT information; search data sources; is co-sponsored with the Water complete and review and collection of section. Requests for special Environment Federation (WEF). The accommodations should be made at information; and transmit or otherwise primary goals of the meeting are to help disclose the information. least five business days in advance of educate the public on current water the public meeting. Dated: August 16, 2005. quality standards regulations, guidance Dated: August 12, 2005. Francisco de la Chesnaye, and practices related to designated uses Ephraim King, Acting Director, Climate Protection Division. and use attainability analyses, and to Director, Office of Science and Technology. [FR Doc. 05–16935 Filed 8–24–05; 8:45 am] provide a forum for the public to join in [FR Doc. 05–16928 Filed 8–24–05; 8:45 am] BILLING CODE 6560–50–M discussions, ask questions, and provide feedback. BILLING CODE 6560–50–P DATES: The meeting will be held on ENVIRONMENTAL PROTECTION Tuesday, September 20, 2005, from AGENCY 12:30 p.m. to 5:30 p.m. The meeting will FEDERAL MARITIME COMMISSION continue on Wednesday, September 21, Agency Information Collection 2005, from 8:30 a.m. to 3 p.m. All times Notice of Agreements Filed Activities: Proposed Collection; are Eastern Daylight Time. The Commission hereby gives notice Comment Request; Assessment of ADDRESSES: The meeting will be held at of the filing of the following agreements Indoor Air Quality Outreach Products the Westin Peachtree Plaza, 210 under the Shipping Act of 1984. and Services, EPA ICR Number Peachtree Street NW., Atlanta GA Interested parties may obtain copies of 2190.01; Correction 30303, across the street from the agreements by contacting the AGENCY: Environmental Protection Peachtree Center MARTA station. The Commission’s Office of Agreements at Agency. telephone number for the hotel is (404) 202–523–5793 or via e-mail at 659–1400. A block of rooms has been [email protected]. Interested ACTION: Notice; correction. reserved. When making room parties may submit comments on an
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49922 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
agreement to the Secretary, Federal DATE REVOKED: July 20, 2005. ADDRESS: 535 E. 14th Avenue, North Maritime Commission, Washington, DC REASON : Failed to maintain a valid Kansas City, MO 64113 20573, within 10 days of the date this bond. DATE REVOKED: July 15, 2005. notice appears in the Federal Register. LICENSE NUMBER: 017339F REASON: Failed to maintain a valid Agreement No.: 010050–016. NAME: In-House Forwarding, LLC bond. Title: U.S. Flag Discussion Agreement. ADDRESS: 1011 Derussey Road, New LICENSE NUMBER: 015688N Parties: American President Lines, London, OH 44851 Ltd.; A.P. Moller-Maersk A/S; Lykes DATE REVOKED: July 13, 2005. NAME: Millennium Logistics Lines Limited, LLC; P&O Nedlloyd REASON: Surrendered license Services, Inc. Limited; and Farrell Lines Incorporated. voluntarily. ADDRESS: 6810 NW 82nd Avenue, Miami, FL 33196 Filing Party: Wayne R. Rohde, Esq.; LICENSE NUMBER: 004246F Sher & Blackwell LLP; 1850 M Street, NAME: International Shipping Link, DATE REVOKED: June 10, 2005. NW., Suite 900; Washington, DC 20036. Inc. REASON: Failed to maintain a valid Synopsis: The amendment adds APL ADDRESS: 2418 W. Devon Avenue, bond. Co. PTE Ltd. as a party to the agreement. Chicago, IL 60659 LICENSE NUMBER: 018634N By Order of the Federal Maritime DATE REVOKED: February 10, 2005. NAME: Online Shipping Advisers Inc. Commission. REASON: Failed to maintain a valid ADDRESS: 5783 Rina Court, Fontana, August 19, 2005. bond. CA 92336 Bryant VanBrakle, LICENSE NUMBER: 017573F DATE REVOKED: July 26, 2005. Secretary. NAME: Kallista USA, LLC REASON: Failed to maintain a valid [FR Doc. 05–16856 Filed 8–24–05; 8:45 am] ADDRESS: 7204 NW 84th Avenue, bond. BILLING CODE 6730–01–P Miami, FL 33166 DATE REVOKED: July 30, 2005. LICENSE NUMBER: 018765N REASON: Failed to maintain a valid NAME: PR Logistics Corporation FEDERAL MARITIME COMMISSION bond. ADDRESS: Hato Tejas Industrial Park, LICENSE NUMBER: 010835N Street C, Lot #6, Hato Tejas, Bayamon, Ocean Transportation Intermediary NAME: Ki Chul Kim dba PR 00950 License Revocations Intercontinental Trade & Transportation DATE REVOKED: July 21, 2005. ADDRESS: 550 Carson Plaza Drive, The Federal Maritime Commission REASON: Failed to maintain a valid Suite 113, Carson, CA 90746 hereby gives notice that the following bond. DATE REVOKED: July 9, 2005. LICENSE NUMBER: 018893N Ocean Transportation Intermediary REASON: Failed to maintain a valid NAME: Polish Cargo Center, Inc. licenses have been revoked pursuant to bond. section 19 of the Shipping Act of 1984 ADDRESS: 2718 Orthodox Street, LICENSE NUMBER: 018580NF (46 U.S.C. app. 1718) and the Philadelphia, PA 19137 regulations of the Commission NAME: Kingsco Shipping Line, Inc. ADDRESS: 500 Carson Plaza Drive, DATE REVOKED: June 2, 2005. pertaining to the licensing of Ocean Carson, CA 90746 REASON: Failed to maintain a valid Transportation Intermediaries, effective DATE REVOKED: July 27, 2005. bond. on the corresponding date shown below: REASON: Surrendered license LICENSE NUMBER: 000842NF LICENSE NUMBER: 018231F voluntarily. NAME: All American Cargo-Servicios NAME: Premier Shipping Co., Inc. Nicaraguenses, Corp. LICENSE NUMBER: 018227NF ADDRESS: 144 Oakwood Road East, ADDRESS: 1925 NW 21st Terrace, NAME: Latek Logistics, Inc. Watchung, NJ 07069 ADDRESS: Ahi Aven Cad. No: 1 Ata Miami, FL 33142 DATE REVOKED: July 26, 2005. DATE REVOKED: July 14, 2005. Center, Kat: 3 80870 Masjak, Istanbul, REASON: Failed to maintain valid REASON: Failed to maintain a valid Turkey bonds. bond. DATE REVOKED: July 18, 2005. REASON: Surrendered license LICENSE NUMBER: 012702N LICENSE NUMBER: 018861N voluntarily. NAME: S.E.S. International Express, NAME: Central American Shipping LICENSE NUMBER: 004553F Inc. Agency Inc. ADDRESS: 10105 Doty Avenue, ADDRESS: 55 West Main Street, NAME: Marianas Steamship Agencies, Inglewood, CA 90303 Freehold, NJ 07728 Inc. DATE REVOKED: July 14, 2005. ADDRESS: Commercial Port, Apra DATE REVOKED: July 20, 2005. REASON: Failed to maintain a valid Harbor, P.O. Box 3219, Agana, Guam REASON: Failed to maintain a valid bond. 96910 bond. LICENSE NUMBER: 015913N DATE REVOKED: July 14, 2005. LICENSE NUMBER: 018956N NAME: Fastgrow International Co., REASON: Failed to maintain a valid NAME: SWT Shipping USA, Inc. bond. Inc. ADDRESS: 4034 W 21st Street, Los ADDRESS: 2211 South Hacienda LICENSE NUMBER: 002710NF Angeles, CA 90018 Blvd., Suite 216, Hacienda Heights, CA NAME: Mario C. Bravo dba Air Waves DATE REVOKED: July 30, 2005. 91745 International Freight Services ADDRESS: 615 Nash Street, Suite 204, REASON: Failed to maintain a valid DATE REVOKED: July 16, 2005. bond. REASON: Failed to maintain a valid El Segundo, CA 90245 bond. DATE REVOKED: April 2, 2005. LICENSE NUMBER: 018997NF LICENSE NUMBER: 002433F REASON: Failed to maintain valid NAME: Trident Maritime Transport, NAME: Impex International bonds. LLC Brokerage, Inc. LICENSE NUMBER: 012893N ADDRESS: 13831 SW 59th Street, ADDRESS: 8460 NW 30th Terrace, NAME: Midwest Intermodal Services, #208B, Miami, FL 33183 Miami, FL 33122 Inc. DATE REVOKED: July 21, 2005.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49923
REASON: Failed to maintain valid FEDERAL MARITIME COMMISSION Commission pursuant to section 19 of bonds. the Shipping Act of 1984, as amended Ocean Transportation Intermediary by the Ocean Shipping Reform Act of Sandra L. Kusumoto, License Reissuances 1998 (46 U.S.C. app. 1718) and the Director, Bureau of Certification and Notice is hereby given that the regulations of the Commission Licensing. pertaining to the licensing of Ocean [FR Doc. 05–16855 Filed 8–24–05; 8:45 am] following Ocean Transportation Intermediary licenses have been Transportation Intermediaries, 46 CFR BILLING CODE 6730–01–P reissued by the Federal Maritime part 515.
License No. Name/address Date reissued
007699N ...... Caribbean American Freight, Inc., 9393 NW., 13th Street, Miami, FL 33172 ...... June 16, 2005. 001278F ...... Interproject Shipping Services, Inc., 10 Exchange Place, 19th Floor, Jersey City, NJ 07302 ...... July 1, 2005.
Sandra L. Kusumoto, Officer: Vicente Alejandro Pavon, Individual) Steven Calderon, Vice Director, Bureau of Certification and President (Qualifying Individual) President Licensing. Fond Express Logistics Inc., 10418 La James Global Logistics, Inc., 405 [FR Doc. 05–16857 Filed 8–24–05; 8:45 am] Cienega Blvd., Inglewood, CA 90304. Atlantis Road, Suite A–107, Cape BILLING CODE 6730–01–P Officer: Ernest So, President Canaveral, FL 32920. Officer: James F. (Qualifying Individual) Hahn, President (Qualifying Cargo Distribution International, Inc., Individual) FEDERAL MARITIME COMMISSION 221 Joey Drive, Suite A, Elk Grove Ocean Freight Forwarder—Ocean Village, IL 60007. Officer: Constantine Transportation Intermediary Applicants: Ocean Transportation Intermediary Dussias, President (Qualifying FT Worldwide, LLC, 2979 Rushland License Applicants Individual) Road, Jamison, PA 18929. Officer: Oceanic General Agency, Inc., Metro Notice is hereby given that the Michael Shragher, President Office Park, Building Lot No. 11, following applicants have filed with the (Qualifying Individual) Guaynabo, Puerto Rico 00968. Federal Maritime Commission an Elite International Services, Inc., 1535 Officers: David R. Sagarra, Jr., application for license as a Non-Vessel- Land Road, Dalton, GA 30721. Officer: President (Qualifying Individual) Operating Common Carrier and Ocean Linnie Michelle Cox, President Salustiano Alvez Mendez, Vice Freight Forwarder—Ocean (Qualifying Individual) President Dated: August 19, 2005. Transportation Intermediary pursuant to Integrated Creative Resources section 19 of the Shipping Act of 1984 Initiatives, Corporation dba Inquirer Bryant L. VanBrakle, as amended (46 U.S.C. app. 1718 and 46 Golden Bells Cargo, 500 E. Carson Secretary. CFR part 515). Street, #209, Carson, CA 90745. [FR Doc. 05–16858 Filed 8–24–05; 8:45 am] Persons knowing of any reason why Officers: Solomon Pineda, Vice BILLING CODE 6730–01–P the following applicants should not President (Qualifying Individual) receive a license are requested to Aurelio S. Agcaoili, President contact the Office of Transportation Francisca Envios, Inc., 1749 NW 21 FEDERAL RESERVE SYSTEM Intermediaries, Federal Maritime Terrace, Miami, FL 33142. Officer: Commission, Washington, DC 20573. Jose Omar Cabrera, Vice President Formations of, Acquisitions by, and Non-Vessel-Operating Common (Qualifying Individual) Mergers of Bank Holding Companies Carrier Ocean Transportation Non-Vessel-Operating Common The companies listed in this notice Intermediary Applicants: Carrier and Ocean Freight Forwarder have applied to the Board for approval, M & M Cargo Express, Corp., 338 NW Transportation Intermediary Applicants: pursuant to the Bank Holding Company 12th Avenue, Miami, FL 33128. Altorky Group Inc. dba In & Out Cargo, Act of 1956 (12 U.S.C. 1841 et seq.) Officer: Rommel M. Briceno, 6201 Bonhomme, #208–N, Houston, (BHC Act), Regulation Y (12 CFR Part Corporate Officer (Qualifying TX 77036. Officers: Ahmed K. 225), and all other applicable statutes Individual) Ibrahim, President (Qualifying and regulations to become a bank Rasscom USA, LLC, 19201 Susana Road, Individual) Amal M. Chehade, Vice holding company and/or to acquire the Rancho Dominguez, CA 90221. President assets or the ownership of, control of, or Officers: Ernest L. Givens, Vice Export Service International Forwarding the power to vote shares of a bank or President (Qualifying Individual) John LLC, 13225 FM 529, Suite 204, bank holding company and all of the Yelland, President Houston, TX 77041. Officers: Kelly banks and nonbanking companies Polish Cargo Shipping Center, Inc., 2850 Leger, President (Qualifying owned by the bank holding company, Brunswick Pike, Lawrenceville, NJ Individual) Lester Leger, Vice including the companies listed below. 08648. Officers: Miroslaw K. Adolf, President The applications listed below, as well Partner (Qualifying Individual) M. LMJ International Logistics, LLC, 2227 as other related filings required by the Pghemek Adolf, President U.S. Hwy No. 1, Suite 179, North Board, are available for immediate American Freight Logistics, Inc., 1077 E. Brunswick, NJ 08902. Officer: Leila inspection at the Federal Reserve Bank Magnolia Blvd., Burbank, CA 91501. Jubran, President (Qualifying indicated. The application also will be Officers: Yan (Sandy) Yu, Secretary Individual) available for inspection at the offices of (Qualifying Individual) Xiao Rong Unity Shipping, Inc. dba Unity Logistics the Board of Governors. Interested (Jennifer) McCormick, President Group, 10305 NW 41st Street, Suite persons may express their views in Los Paisanos Export & Import Corp., 880 135, Miami, FL 33178. Officers: Albert writing on the standards enumerated in SW 1st Street, Miami, FL 33130. De Rojas, President (Qualifying the BHC Act (12 U.S.C. 1842(c)). If the
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49924 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
proposal also involves the acquisition of thereby indirectly acquire Queen City document must be clearly labeled a nonbanking company, the review also Federal Savings Bank, Virginia, ‘‘Confidential.’’ 1 The FTC is requesting includes whether the acquisition of the Minnesota, and engage in owning and that any comment filed in paper form be nonbanking company complies with the operating a savings and loan sent by courier or overnight service, if standards in section 4 of the BHC Act association, pursuant to section possible. (12 U.S.C. 1843). Unless otherwise 225.28(b)(4)(ii) of Regulation Y. Comments filed in electronic form noted, nonbanking activities will be Comments on this application must should be submitted by clicking on the conducted throughout the United States. be received by September 9, 2005. following Web link: https:// Additional information on all bank Board of Governors of the Federal Reserve secure.commentworks.com/FTC- holding companies may be obtained System, August 19, 2005. IDTSurvey and following the instructions on the Web-based form. To from the National Information Center Robert deV. Frierson, ensure that the Commission considers website at www.ffiec.gov/nic/. Deputy Secretary of the Board. Unless otherwise noted, comments an electronic comment, you must file it regarding each of these applications [FR Doc. 05–16886 Filed 8–24–05; 8:45 am] on the Web-based form at the https:// must be received at the Reserve Bank BILLING CODE 6210–01–S secure.commentworks.com/FTC- indicated or the offices of the Board of IDTSurvey Web link. If this notice Governors not later than September 19, appears at http://www.regulations.gov, 2005. FEDERAL TRADE COMMISSION you may also file an electronic comment A. Federal Reserve Bank of Chicago through that Web site. The Commission (Patrick M. Wilder, Assistant Vice Agency Information Collection will consider all comments that President) 230 South LaSalle Street, Activities; Reinstatement of Existing regulations.gov forwards to it. Chicago, Illinois 60690-1414: Collection; Comment Request The FTC Act and other laws the 1. CCB Acquisition Corp., Oak Brook, AGENCY: Federal Trade Commission Commission administers permit the Illinois; to become a bank holding (Commission or FTC). collection of public comments to consider and use in this proceeding as company by acquiring 100 percent of ACTION: Notice. the voting shares of Citizens Central appropriate. All timely and responsive Bancorp, Inc., Macomb, Illinois, and SUMMARY: The FTC intends to conduct public comments will be considered by thereby indirectly acquire the voting a survey of consumers to advance its the Commission and will be available to shares of Citizens National Bank, understanding of the incidence of the public on the FTC Web site, to the Macomb, Illinois. identity theft (‘‘ID Theft’’) and to allow extent practicable, at www.ftc.gov. As a 2. Commercial Bancshares, Inc., the FTC to better serve the people who matter of discretion, the FTC makes Whitewater, Wisconsin; to become a experience it and the law enforcement every effort to remove home contact bank holding company by acquiring 100 agencies that investigate and prosecute information for individuals from the percent of the voting shares of it. The survey is a follow-up to the public comments it receives before Commercial Bank, Whitewater, FTC’s ID Theft Survey conducted in placing those comments on the FTC Wisconsin. March 2003 and released in September Web site. More information, including Board of Governors of the Federal Reserve 2003. Before gathering this information, routine uses permitted by the Privacy System, August 19, 2005. the FTC is seeking public comments on Act, may be found in the FTC’s privacy Robert deV. Frierson, its proposed consumer research. policy at http://www.ftc.gov/ftc/ Deputy Secretary of the Board. Comments will be considered before the privacy.htm. [FR Doc. 05–16887 Filed 8–24–05; 8:45 am] FTC submits a request for Office of FOR FURTHER INFORMATION CONTACT: Management and Budget (OMB) review BILLING CODE 6210–01–S Requests for additional information under the Paperwork Reduction Act should be addressed to Joanna P. Crane, (PRA), 44 U.S.C. 3501–3520. Program Manager, Federal Trade FEDERAL RESERVE SYSTEM DATES: Comments must be received on Commission ID Theft Program, 600 or before October 24, 2005. Pennsylvania Avenue, NW., Notice of Proposals to Engage in ADDRESSES: Interested parties are Washington, DC 20580, (202) 326–3228. Permissible Nonbanking Activities or invited to submit written comments. SUPPLEMENTARY INFORMATION: to Acquire Companies that are Comments should refer to ‘‘ID Theft Under the PRA, Federal agencies must Engaged in Permissible Nonbanking Survey: FTC File No. P034303’’ to obtain approval from OMB for each Activities; Correction facilitate the organization of comments. collection of information they conduct This notice corrects a notice (FR Doc. A comment filed in paper form should or sponsor. ‘‘Collection of information’’ 05-16249) published on page 48422 of include this reference both in the text means agency requests or requirements the issue for Wednesday, August 17, and on the envelope and should be that members of the public submit 2005. mailed or delivered, with two complete reports, keep records, or provide Under the Federal Reserve Bank of copies, to the following address: Federal information to a third party. 44 U.S.C. Minneapolis heading, the entry for Trade Commission/Office of the 3502(3), 5 CFR 1320.3(c). In 2003, OMB Frandsen Financial Corporation, Arden Secretary, Room H–135 (Annex E), 600 approved the FTC’s request to conduct Hills, Minnesota, is revised to read as Pennsylvania Avenue, NW., a survey on ID Theft and assigned OMB follows: Washington, DC 20580. Because paper A. Federal Reserve Bank of mail in the Washington area and at the 1 Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be accompanied by an explicit Minneapolis (Jacqueline G. King, Commission is subject to delay, please request for confidential treatment, including the Community Affairs Officer) 90 consider submitting your comments in factual and legal basis for the request, and must Hennepin Avenue, Minneapolis, electronic form, as prescribed below. identify the specific portions of the comment to be Minnesota 55480-0291: However, if the comment contains any withheld from the public record. The request will be granted or denied by the Commission’s General 1. Frandsen Financial Corporation, material for which confidential Counsel, consistent with applicable law and the Forest Lake, Minnesota; to acquire QCF treatment is requested, it must be filed public interest. See Commission Rule 4.9(c), 16 CFR Bancorp, Virginia, Minnesota, and in paper form, and the first page of the 4.9(c).
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49925
Control Number 3084–0124. The FTC allow for a more in-depth analysis of the SUMMARY: The FTC is seeking public completed the consumer research in resulting data. The additional data comments on its proposal to extend April 2003 and issued its report, Federal points will allow for statistically through December 31, 2008 the current Trade Commission—Identity Theft significant samples for particular types Paperwork Reduction Act (‘‘PRA’’) Survey Report, in September 2003.2 As of ID Theft and particular demographic clearance for information collection required by section 3506(c)(2)(A) of the characteristics. The questions will be requirements contained in its Fuel PRA, the FTC is providing this very similar to the 2003 survey so that Rating Rule (‘‘Rule’’). That clearance opportunity for public comment before the results from the 2003 survey can be expires on December 31, 2005. requesting that OMB reinstate the used as a baseline for a time-series DATES: Comments must be received on clearance for the survey, which expired analysis.3 The FTC may choose to or before October 24, 2005. in June 2003. conduct another follow-up survey in ADDRESSES: Interested parties are The FTC invites comments on: (1) approximately two years. invited to submit written comments. Whether the proposed collections of 2. Estimated Hours Burden Comments should refer to ‘‘Fuel Rating information are necessary for the proper Rule: FTC File No. R811005’’ to performance of the functions of the FTC, The FTC will pretest the survey on facilitate the organization of comments. including whether the information will approximately 100 respondents to A comment filed in paper form should have practical utility; (2) the accuracy of ensure that all questions are easily include this reference both in the text the FTC’s estimate of the burden of the understood. This pretest will take and on the envelope and should be proposed collections of information; (3) approximately 3 minutes on average per mailed or delivered, with two complete ways to enhance the quality, utility, and person and 5 hours as a whole (100 copies, to the following address: Federal clarity of the information to be respondents × 3 minutes each). Based Trade Commission, Room H 135 (Annex collected; and (4) ways to minimize the on FTC staff’s experience with the 2003 J), 600 Pennsylvania Ave., NW., burden of collecting information on survey, the staff estimates that Washington, DC 20580. Because paper those who are to respond, including approximately 12 percent of those mail in the Washington area and at the through the use of appropriate interviewed will have experienced ID Commission is subject to delay, please automated, electronic, mechanical, or Theft within the last 5 years. Survey consider submitting your comments in other technological collection participants who have not experienced electronic form, (in ASCII format, techniques or other forms of information ID Theft in this period of time will only WordPerfect, or Microsoft Word) as part technology, e.g., permitting electronic be asked the initial 4 or 5 survey of or as an attachment to e-mail submission of responses. All comments questions. The staff expects that this messages directed to the following e- should be filed as prescribed in the will take less than 2 minutes. For those mail box: [email protected]. ADDRESSES section above, and must be who have experienced ID Theft in the However, if the comment contains any received on or before October 24, 2005. last 5 years, our experience with the material for which confidential 1. Description of the Collection of earlier survey suggests that it will take treatment is requested, it must be filed Information and Proposed Use about 12 to 15 minutes to complete the in paper form, and the first page of the survey. The staff therefore anticipates document must be clearly labeled The FTC proposes to survey up to that the average time per survey ‘‘Confidential.’’ 1 5,000 consumers in order to gather participant will be approximately 3 The FTC Act and other laws the specific information on the incidence of minutes. Answering the consumer Commission administers permit the ID Theft in the general population. All survey will require approximately 250 collection of public comments to information will be collected on a hours as a whole (5,000 respondents × consider and use in this proceeding as voluntary basis, and the identities of the 3 minutes each). Thus, cumulative total appropriate. All timely and responsive consumers will remain confidential. burden hours for the first year of the public comments will be considered by Subject to OMB approval for the survey, clearance will approximate 255 hours. the Commission and will be available to the FTC has contracted with a consumer the public on the FTC website, to the research firm to identify consumers and 3. Estimated Cost Burden extent practicable, at www.ftc.gov. As a conduct the survey. The results will The cost per respondent should be matter of discretion, the FTC makes assist the FTC in determining the negligible. Participation is voluntary every effort to remove home contact incidence of ID Theft in the general and will not require start-up, capital, or information for individuals from the population and whether the type and labor expenditures by respondents. public comments it receives before frequency of ID Theft is changing, and placing those comments on the FTC Christian S. White, will inform the FTC about how best to Web site. More information, including combat ID Theft. Acting General Counsel. routine uses permitted by the Privacy ID Theft has been the top consumer [FR Doc. 05–16888 Filed 8–24–05; 8:45 am] Act, may be found in the FTC’s privacy complaint reported to the FTC since BILLING CODE 6750–01–P policy at http://www.ftc.gov/ftc/ calendar year 2000. The information privacy.htm. collected by the survey will ensure that FOR FURTHER INFORMATION CONTACT: the FTC has accurate and timely FEDERAL TRADE COMMISSION Requests for additional information or information on the extent of ID Theft copies of the proposed information and its impact on victims. This Agency Information Collection information will be highly useful to Activities; Proposed Collection; Comment Request; Extension 1 Commission Rule 4.2(d), 16 CFR 4.2(d). The Congress and others who often request comment must be accompanied by an explicit statistical information on ID Theft from AGENCY: Federal Trade Commission request for confidential treatment, including the the FTC. (FTC). factual and legal basis for the request, and must The FTC intends to use a larger identify the specific portions of the comment to be ACTION: Notice. withheld from the public record. The request will sample size than the 2003 survey to be granted or denied by the Commission’s General Counsel, consistent with applicable law and the 2 The Report is available at http://www.ftc.gov/os/ 3 The questionnaire for the 2003 survey is public interest. See Commission Rule 4.9(c), 16 CFR 2003/09/synovatereport.pdf. available as Appendix A to the Report. 4.9(c).
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49926 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
requirements should be sent to Neil recordkeeping hours + 24,000 disclosure estimates total labeling cost to be Blickman, Attorney, Division of hours). $84,000 (28,333 × 6 × .50 ). Enforcement, Bureau of Consumer Recordkeeping: Based on industry Christian S. White, Protection, Federal Trade Commission, sources, staff estimates that 195,000 fuel Acting General Counsel. 600 Pennsylvania Ave., NW., industry members each incur an average Washington, DC 20580, (202) 326–3038. [FR Doc. 05–16889 Filed 8–24–05; 8:45 am] annual burden of approximately five BILLING CODE 6750–01–P SUPPLEMENTARY INFORMATION: Under the minutes to ensure retention of relevant Paperwork Reduction Act (PRA), 44 business records for the period required U.S.C. 3501–3520, Federal agencies by the Rule, resulting in a total of 16,000 must obtain approval from OMB for hours. DEPARTMENT OF HEALTH AND HUMAN SERVICES each collection of information they Disclosure: Staff estimates that conduct or sponsor. ‘‘Collection of affected industry members incur an Centers for Disease Control and information’’ means agency requests or average burden of approximately one Prevention requirements that members of the public hour to produce, distribute, and post submit reports, keep records, or provide [30Day–05–05CK] information to a third party. 44 U.S.C. octane rating labels. Because the labels 3502(3); 5 CFR 1320.3(c). As required by are durable, only about one of every eight industry members (i.e., Proposed Data Collections Submitted section 3506(c)(2)(A) of the PRA, the for Public Comment and approximately 24,000 of 195,000 FTC is providing this opportunity for Recommendations public comment before requesting that industry members) incur this burden OMB extend the existing paperwork each year, resulting in a total annual The Centers for Disease Control and clearance for the regulations noted burden of 24,000 hours. Prevention (CDC) publishes a list of herein. Estimated annual cost burden: information collection requests under review by the Office of Management and The FTC invites comments on: (1) $804,000 ($720,000 in labor costs and Budget (OMB) in compliance with the Whether the proposed collection of $84,000 in non-labor costs). Paperwork Reduction Act (44 U.S.C. information is necessary for the proper Labor costs: Staff estimates that the Chapter 35). To request a copy of these performance of the functions of the work associated with the Rule’s requests, call the CDC Reports Clearance agency, including whether the recordkeeping and disclosure Officer at (404) 371–5974 or send an e- information will have practical utility; requirements is performed by skilled mail to [email protected]. Send written (2) the accuracy of the agency’s estimate information and record clerks at an comments to CDC Desk Officer, Office of of the burden of the proposed collection average rate of $18.00 per hour. Thus, Management and Budget, Washington, of information, including the validity of the annual labor cost to respondents of DC or by fax to (202) 395–6974. Written the methodology and assumptions used; complying with the recordkeeping and comments should be received within 30 (3) ways to enhance the quality, utility, disclosure requirements of the Rule is days of this notice. and clarity of the information to be estimated to be $720,000 ((16,000 hours collected; and (4) ways to minimize the Proposed Project + 24,000 hours) × $18.00 per hour). burden of the collection of information Collection of Assessment Information Capital or other non-labor costs: on those who are to respond, including about the Centers for Disease Control $84,000. through the use of appropriate and Prevention Publications—NEW— automated, electronic, mechanical, or Staff believes that there are no current National Center for Health Marketing other technological collection start-up costs associated with the Rule. (NCHM), Centers for Disease Control techniques or other forms of information Because the Rule has been effective and Prevention (CDC). technology, e.g., permitting electronic since 1979 for gasoline, and since 1993 submission of responses. All comments Background and Brief Description for liquid alternative automotive fuels, should be filed as prescribed in the industry members already have in place As part of CDC’s Future’s Initiative, ADDRESSES section above, and must be the capital equipment and other means the National Center for Health received on or before October 24, 2005. necessary to comply with the Rule. Marketing was created to ensure that The Fuel Rating Rule, 16 CFR part 306 Retailers (approximately 170,000 health information, interventions, and (OMB Control Number: 3084–0068), industry members), however, do incur programs at CDC are based on sound establishes standard procedures for the cost of procuring (and replacing) science. determining, certifying, and disclosing fuel dispenser labels to comply with the Numerous CDC-operated the octane rating of automotive gasoline Rule. According to industry input, the communication platforms targeting and the automotive fuel rating of scientific, professional, and technical price per label is about fifty cents. Based alternative liquid automotive fuels, as audiences have been developed in the on ranging industry estimates of a 6–10 required by the Petroleum Marketing past twenty years. The reach of many of Practices Act. 15 U.S.C. 2822(a)–(c). The year useful life per dispenser label, staff these platforms has increased Rule also requires refiners, producers, will conservatively factor into its significantly in the past five years. In importers, distributors, and retailers to calculation of labeling cost the shortest order to ensure future growth, it is retain records showing how the ratings assumed useful life, i.e., 6 years. Staff critical to obtain feedback from were determined, including delivery believes that the average retailer has six subscribers of these platforms to tickets or letters of certification. dispensers, with all of them being understand who uses them, how they obtained either simultaneously or Estimated annual hours burden: 2 use them, how satisfied they are with otherwise within the same year. 40,000 total burden hours (16,000 the platforms, and solicit suggestions on Assuming that, in any given year, 1⁄6th ways to improve each platform to of all retailers (28,000 retailers) will 2 All numbers pertaining to hours and cost bolster satisfaction. The data collected burden estimates have been rounded to the nearest replace their dispenser labels, staff from this effort will allow us to answer thousand. critical operating questions, including:
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49927
• Which audiences (e.g., doctors, channels through which CDC intended for scientific and professional local health officials, researchers, etc.) communicates scientific information to audiences. However, future plans receive their information from which partners and customers to ensure that include adding additional publications CDC platforms? health impact is maximized through the as needed. The initial five • How often and with what purpose delivery of timely, effective, and communications platforms are: do they access CDC platforms? credible information, which will result • Emerging Infections Journal, MMWR, How satisfied are subscribers of the in optimal benefit for public health. The Epi-X, Preventing Chronic Diseases platforms with the content and delivery evaluation will help to ensure that these Journal, and Health Alert Network. We of information? • platforms meet subscriber and partner want to ensure that the timeliness, Are there ways to enhance the priorities, build CDC’s brand, and platforms for the subscriber through effectiveness, and credibility of this contribute to health impact goals. communication maximizes the health improvements to current offerings or Feedback from the subscriber base is through new products / services? impact of that information, resulting in necessary to fully evaluate the • Who are our most critical target optimum benefit for public health. audiences, i.e., what are our publication performance of CDC’s platforms. These channels include both print and and dissemination priorities in service At this time, the scope of this project electronic versions of the five platforms. to our health impact goals? is limited to five communication There is no cost to respondents other The purpose of this project is to platforms owned and managed by CDC than their time. The total estimated evaluate the content, processes, and which transmits information primarily burden hours are 18,970. ESTIMATES OF ANNUALIZED BURDEN HOURS
Responses Hrs/response Form Respondents per respondent (in hrs)
MMWR ...... 30,000 1 20/60 EID ...... 12,750 1 20/60 PCD ...... 10,500 1 20/60 Epi-X ...... 1,650 1 20/60 HAN ...... 2,000 1 20/60
Dated: August 18, 2005. Proposed Project deaths of approximately 1,000 people in Joan F. Karr, the U.S. each year. How Miners Modify Their Behavior In Acting Reports Clearance Officer, Centers for A personal dust monitor (PDM) has Response To Personal Dust Monitor recently been developed through a Disease Control and Prevention. Information—New—National Institute [FR Doc. 05–16894 Filed 8–24–05; 8:45 am] collaboration involving NIOSH, the for Occupational Safety and Health Bituminous Coal Operators’ BILLING CODE 4163–18–P (NIOSH), Centers for Disease Control Association, the United Mine Workers and Prevention (CDC). of America, the National Mining Association, and Rupprecht & DEPARTMENT OF HEALTH AND Background and Brief Description Patashnick Co., Inc. This new device HUMAN SERVICES The Federal Mine Safety & Health Act represents a major advance in the tools of 1977, Section 501, and the Centers for Disease Control and available for assessing coal miners’ Occupational Safety and Health Act of Prevention exposure to respirable dust levels. It 1970, Public Law 91–256 enables CDC/ will soon be field tested with coal NIOSH to carry out research relevant to miners throughout the U.S. As with the [30Day–05–05AF] the health and safety of workers in the introduction of any new technology, it mining industry. The objective of this is very important to systematically Proposed Data Collections Submitted project is to document how coal miners document how workers react to it and for Public Comment and can use real-time information from their make use of it. If miners know how to Recommendations personal dust monitors (PDM) to reduce properly use the information PDMs are their exposure to respirable dust. The capable of providing, they should be The Centers for Disease Control and specific aims are to (1) identify several able to make adjustments to their work Prevention (CDC) publishes a list of specific examples of how miners use place or work procedures that will information collection requests under PDM information to discover which reduce their exposure to respirable coal review by the Office of Management and parts of their jobs and/or which aspects dust. Budget (OMB) in compliance with the of their work environment may be Various parties have speculated about Paperwork Reduction Act (44 U.S.C. causing them to be overexposed to the processes by which miners will use Chapter 35). To request a copy of these respirable dust, and (2) identify the the information to reduce their exposure requests, call the CDC Reports Clearance types of changes that miners could make to respirable dust. There appears to be Officer at (404) 371–5983 or send an e- in order to try to reduce their exposure. great potential. However, no one knows mail to [email protected]. Send written Although the most recent data on the precisely how miners performing a wide comments to CDC Desk Officer, Office of prevalence of Coal Workers’ variety of tasks and jobs are actually Management and Budget, Washington, Pneumoconiosis (CWP) in the United going to use this new information to DC or by fax to (202) 395–6974. Written States indicates that it is declining, reduce their exposure to dust. It is comments should be received within 30 substantial numbers of CWP cases assumed that, once PDMs are days of this notice. continue to be diagnosed. In recent introduced, miners will eventually find years, CWP has contributed to the new ways to reduce their exposure to
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49928 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
dust. Once these discoveries are made, producing coal mines in the U.S. to go structured interviews with they need to be documented and shared through their own trial and error approximately 20 miners at each of 5 throughout the industry. process of discovering how PDMs can mines located throughout the major coal The diffusion of this innovation will and cannot be used to reduce dust producing regions of the U.S. occur much more rapidly and efficiently exposure. The proposed study will help This survey will last 2 years. There if this proposed study takes place. to significantly reduce the incidence of will be no cost to respondents except Effective strategies for using PDM lung disease among coal miners, leading their time to participate. The total information will be well documented to improvements in their longevity and and quickly shared throughout the coal quality of life. estimated annualized burden hours are industry. The alternative is to wait for The information for this study will be 25. the miners at each of the 482 actively collected by conducting one-on-one ESTIMATE OF ANNUALIZED BURDEN TABLE
Average bur- Number of re- Number of re- den per Respondents spondents sponses per response respondent (in hours)
Coal Miners ...... 50 1 30/60
Dated: August 18, 2005. ADDRESSES: Submit electronic the information will have practical Joan F. Karr, comments on the collection of utility; (2) the accuracy of FDA’s Acting Reports Clearance Officer, Centers for information to: http://www.fda.gov/ estimate of the burden of the proposed Disease Control and Prevention. dockets/ecomments. Submit written collection of information, including the [FR Doc. 05–16895 Filed 8–24–05; 8:45 am] comments on the collection of validity of the methodology and BILLING CODE 4163–18–P information to the Division of Dockets assumptions used; (3) ways to enhance Management (HFA–305), Food and Drug the quality, utility, and clarity of the Administration, 5630 Fishers Lane, rm. information to be collected; and (4) DEPARTMENT OF HEALTH AND 1061, Rockville, MD 20852. All ways to minimize the burden of the HUMAN SERVICES comments should be identified with the collection of information on docket number found in brackets in the respondents, including through the use Food and Drug Administration heading of this document. of automated collection techniques, [Docket No. 2005N–0296] FOR FURTHER INFORMATION CONTACT: when appropriate, and other forms of Karen L. Nelson, Office of Management information technology. Agency Information Collection Programs (HFA–250), Food and Drug Financial Disclosure by Clinical Activities; Proposed Collection; Administration, 5600 Fishers Lane, Comment Request; Financial Investigators (OMB Control Number Rockville, MD 20857, 301–827–1482. 0910–0396)—Extension Disclosure by Clinical Investigators SUPPLEMENTARY INFORMATION: Under the AGENCY: Food and Drug Administration, PRA (44 U.S.C. 3501–3520), Federal Respondents are sponsors of HHS. agencies must obtain approval from the marketing applications that contain ACTION: Notice. Office of Management and Budget clinical data from studies covered by the (OMB) for each collection of regulations. These sponsors represent SUMMARY: The Food and Drug information they conduct or sponsor. pharmaceutical, biologic and medical Administration (FDA) is announcing an ‘‘Collection of information’’ is defined device firms. The applicant will incur opportunity for public comment on the in 44 U.S.C. 3502(3) and 5 CFR reporting costs in order to comply with proposed collection of certain 1320.3(c) and includes agency requests the final rule. Applicants will be information by the agency. Under the or requirements that members of the required to submit, for example, the Paperwork Reduction Act of 1995 (the public submit reports, keep records, or complete list of clinical investigators for PRA), Federal agencies are required to provide information to a third party. each covered study, not employed by publish notice in the Federal Register Section 3506(c)(2)(A) of the PRA (44 the applicant and/or sponsor of the concerning each proposed collection of U.S.C. 3506(c)(2)(A)) requires Federal covered study, and either certify to the information, including each proposed agencies to provide a 60-day notice in absence of certain financial extension of an existing collection of the Federal Register concerning each arrangements with clinical investigators information, and to allow 60 days for proposed collection of information, or disclose the nature of those public comment in response to the including each proposed extension of an arrangements to FDA and the steps notice. This notice solicits comments on existing collection of information, taken by the applicant or sponsor to information requiring the sponsor of any before submitting the collection to OMB minimize the potential for bias. The drug, biologic, or device marketing for approval. To comply with this clinical investigator will have to supply application to certify to the absence of requirement, FDA is publishing notice information regarding financial interests clinical investigators and/or disclose of the proposed collection of or payments held in the sponsor of the those financial interests as required, information set forth in this document. covered study. FDA has said that it has when covered clinical studies are With respect to the following no preference as to how this information submitted to FDA in support of product collection of information, FDA invites is collected from investigators and that marketing. comments on these topics: (1) Whether sponsors/applicants have the flexibility DATES: Submit written or electronic the proposed collection of information to collect the information in the most comments on the collection of is necessary for the proper performance efficient and least burdensome manner information by October 24, 2005. of FDA’s functions, including whether that will be effective. FDA estimated
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49929
that the total reporting costs of sponsors determines that the financial interests of FDA estimates the burden of this would be less than $450,000 annually. an investigator raise significant collection of information as follows: Costs could also occur after a marketing questions about the integrity of the data. application is submitted if FDA TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
No. of Annual Frequency Total Annual 21 CFR Section Respondents per Response Responses Hours Per Response Total Hours
54.4(a)(1) and (a)(2) 1,000 1 1,000 5 5,000 54.4(a)(3) 100 1 100 20 2,000 54.4 46,000 .25 11,500 .1 11,500 Total 18,500 1There are no capital cost or operating and maintenance costs associated with this collection of information.
The sponsors of covered studies will after the date of approval of the with regard to clinical investigators, be required to maintain complete applications. This time is consistent including protocol agreements and records of compensation agreements with the current recordkeeping investigator resumes or curriculum with any compensation paid to requirements for other information vitae. FDA estimates than an average of nonemployee clinical investigators, related to marketing applications for 15 minutes will be required for each including information showing any human drugs, biologics, and medical recordkeeper to add this record to financial interests held by the clinical devices. Currently, sponsors of covered clinical investigators’ file. investigator, for a time period of 2 years studies must maintain many records TABLE 2.—ESTIMATED ANNUAL RECORDKEEPING BURDEN1
No. of Annual Frequency per Hours Per 21 CFR Section Recordkeepers Recordkeeping Total Annual Records Recordkeeper Total Hours
54.6 1,000 1 1,000 .25 250 Total 250 1There are no capital costs or operating and maintenance costs associated with this collection of information.
Dated: August 17, 2005. Purification Systems for RT–PCR used Radiological Health, Food and Drug Jeffrey Shuren, in Molecular Diagnostic Testing).’’ This Administration, 1350 Piccard Dr., Assistant Commissioner for Policy. guidance document describes a means Rockville, MD 20850. Send one self- [FR Doc. 05–16915 Filed 8–24–05; 8:45 am] by which Ribonucleic Acid (RNA) addressed adhesive label to assist that BILLING CODE 4160–01–S preanalytical systems may comply with office in processing your request, or fax the requirement of special controls for your request to 301–443–8818. See the class II devices. Elsewhere in this issue SUPPLEMENTARY INFORMATION section for DEPARTMENT OF HEALTH AND of the Federal Register, FDA is information on electronic access to the HUMAN SERVICES publishing a final rule to classify RNA guidance. preanalytical systems into class II Submit written comments concerning Food and Drug Administration (special controls). This guidance this guidance to the Division of Dockets [Docket No. 2005D–0264] document is immediately in effect as the Management (HFA–305), Food and Drug special control for RNA preanalytical Administration, 5630 Fishers Lane, rm. Guidance for Industry and Food and systems but it remains subject to 1061, Rockville, MD 20852. Submit Drug Administration Staff; Class II comment in accordance with the electronic comments to http:// Special Controls Guidance Document: agency’s good guidance practices www.fda.gov/dockets/ecomments. Ribonucleic Acid Preanalytical (GGPs). Identify comments with the docket Systems (Ribonucleic Acid Collection, DATES: Submit written or electronic number found in brackets in the Stabilization and Purification Systems comments on this guidance at any time. heading of this document. for Real Time Polymerase Chain General comments on agency guidance FOR FURTHER INFORMATION CONTACT: Uwe Reaction Used in Molecular Diagnostic documents are welcome at any time. Scherf, Center for Devices and Testing); Availability ADDRESSES: Submit written requests for Radiological Health (HFZ–440), Food ′′ AGENCY: Food and Drug Administration, single copies on a 3.5 diskette of the and Drug Administration, 2098 Gaither HHS. guidance document entitled ‘‘Class II Rd., Rockville, MD 20850, 240–276– 0496. ACTION: Notice. Special Controls Guidance Document: RNA Preanalytical Systems (RNA SUPPLEMENTARY INFORMATION: SUMMARY: The Food and Drug Collection, Stabilization and Administration (FDA) is announcing the Purification Systems for RT–PCR used I. Background availability of the guidance entitled in Molecular Diagnostic Testing)’’ to the Elsewhere in this issue of the Federal ‘‘Class II Special Controls Guidance Division of Small Manufacturers, Register, FDA is publishing a final rule Document: RNA Preanalytical Systems International, and Consumer Assistance classifying RNA preanalytical systems (RNA Collection, Stabilization and (HFZ–220), Center for Devices and into class II (special controls) under
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49930 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
section 513(f)(2) of the Federal Food, Systems (RNA Collection, Stabilization Management between 9 a.m. and 4 p.m., Drug, and Cosmetic Act (the act) (21 and Purification Systems for RT–PCR Monday through Friday. U.S.C. 360c(f)(2)). This guidance used in Molecular Diagnostic Testing),’’ Dated: August 9, 2005. document will serve as the special you may either send a fax request to Linda S. Kahan, control for RNA preanalytical systems. 301–443–8818 to receive a hard copy of Section 513(f)(2) of the act provides Deputy Director, Center for Devices and the document, or send an e-mail request Radiological Health. that any person who submits a to [email protected] to receive a hard [FR Doc. 05–16913 Filed 8–24–05; 8:45 am] premarket notification under section copy or an electronic copy. Please use 510(k) of the act (21 U.S.C. 360(k)) for the document number (1563) to identify BILLING CODE 4160–01–S a device that has not previously been the guidance you are requesting. classified may, within 30 days after Persons interested in obtaining a copy receiving an order classifying the device DEPARTMENT OF HEALTH AND of the guidance may also do so by using HUMAN SERVICES in class III under section 513(f)(1) of the the Internet. CDRH maintains an entry act, request FDA to classify the device on the Internet for easy access to Indian Health Service under the criteria set forth in section information, including text, graphics, 513(a)(1) of the act. FDA shall, within and files that may be downloaded to a Research and Demonstration Projects 60 days of receiving such a request, personal computer with Internet access. for Indian Health classify the device by written order. Updated on a regular basis, the CDRH AGENCY: This classification shall be the initial home page includes device safety alerts, Indian Health Service, HHS. classification of the device. Within 30 Federal Register reprints, information ACTION: Notice of single source days after the issuance of an order on premarket submissions (including cooperative agreement with the National classifying the device, FDA must lists of approved applications and Council of Urban Indian Health. publish a notice in the Federal Register manufacturers’ addresses), small announcing such classification. Because manufacturer’s assistance, information SUMMARY: The Indian Health Service of the timeframes established by section on video conferencing and electronic (IHS) announces the award of a 513(f)(2) of the act, FDA has submissions, Mammography Matters, cooperative agreement to the National determined, under § 10.115(g)(2) (21 and other device-oriented information. Council of Urban Indian Health CFR 10.115(g)(2)), that it is not feasible The CDRH Web site may be accessed at (NCUIH) for demonstration project for to allow for public participation before http://www.fda.gov/cdrh. A search urban Indian health care education, issuing this guidance as a final guidance capability for all CDRH guidance consultation, health care data document. Therefore, FDA is issuing documents is available at http:// dissemination, training, and technical this guidance document as a level 1 www.fda.gov/cdrh/guidance.html. assistance to determine the unmet guidance document that is immediately Guidance documents are also available health care needs of urban Indians and in effect. FDA will consider any on the Division of Dockets Management to assist the Secretary in assessing the comments that are received in response Internet site at http://www.fda.gov/ health status and health care of urban to this notice to determine whether to ohrms/dockets. Indians. The project is for a three year amend the guidance document. project period effective September 1, IV. Paperwork Reduction Act of 1995 II. Significance of Guidance 2005 to August 31, 2008. Annual This guidance contains information funding for the project is $417,000. This guidance is being issued The award is issued under the consistent with FDA’s GGP regulation collection provisions that are subject to review by the Office of Management and authority of the Public Health Service (21 CFR 10.115). The guidance Act, Section 301 and the Indian Health represents the agency’s current thinking Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 Care Improvement Act, Public Law 94– on RNA preanalytical systems. It does 437, Sections 503, 504, and 511, and is not create or confer any rights for or on U.S.C. 3501–3520). The collections of information addressed in the guidance listed under Catalog of Federal Domestic any person and does not operate to bind Assistance number 93–933. FDA or the public. An alternative document have been approved by OMB The specific objectives of the project approach may be used if such approach in accordance with the PRA under the are: satisfies the requirements of the regulations governing premarket applicable statute and regulations. notification submissions (21 CFR part 1. NCUIH will keep the Urban Indian 807, subpart E, OMB control number health programs and the IHS informed III. Electronic Access 0910–0120). The labeling provisions of items of interest pertaining to the To receive ‘‘Class II Special Controls addressed in the guidance have been health status and unmet needs of urban Guidance Document: RNA Preanalytical approved by OMB under OMB control Indians and the federal budget process Systems (RNA Collection, Stabilization number 0910–0485. by reviewing activities that have taken place in regard to Indian health care. and Purification Systems for RT–PCR V. Comments used in Molecular Diagnostic Testing)’’ 2. To disseminate information relative by fax call the Center for Devices and Interested persons may submit written to Title V, local Urban Indian health Radiological Health (CDRH) Facts-On- or electronic comments regarding this issues, training opportunities, research Demand system at 800–899–0381 or document to the Division of Dockets instruments, data, budget, NCUIH 301–827–0111 from a touch-tone Management (see ADDRESSES). Submit a activities and various forms of technical telephone. Press 1 to enter the system. single copy of electronic comments or assistance to the Urban Indian health At the second voice prompt, press 1 to two paper copies of any mailed programs, keeping IHS informed of order a document. Enter the document comments, except that individuals may activities taking place. number (1563) followed by the pound submit one paper copy. Comments are 3. To disseminate information and sign (#). Follow the remaining voice to be identified with the docket number respond to all inquiries relative to Title prompts to complete your request. found in brackets in the heading of this V, local Urban Indian health issues, To receive ‘‘Class II Special Controls document. Received comments may be training opportunities, research Guidance Document: RNA Preanalytical seen in the Division of Dockets instruments, data, budget, NCUIH
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49931
activities and will issue a quarterly Act, Public Law 93–437, as amended, SUMMARY: In accordance with the newsletter and develop a web page. and under authority 25 U.S.C. 1652. requirements of the Privacy Act of 1974, 4. To coordinate meetings for the Furthermore, it is the only nationwide we are proposing to modify or alter an Urban Indian health programs to organization for urban American SOR, ‘‘Health, Medical and Billing provide training, technical assistance, Indians and Alaska Natives supporting Records (formerly known as the Health and/or updated information addressing the growth of the Urban Indian health and Medical Records Systems),’’ System the health care needs of Urban Indians. care delivery system. No. 09–17–0001. We propose to include Reporting Requirements: Use of Cooperative Agreement: A contract health service records, as an 1. Monthly Activity Report: The cooperative agreement has been additional category of individuals organization will provide to the IHS awarded because of anticipated covered by the system, which consists program office a monthly report substantial Programmatic involvement of medical records to eligible American detailing activities performed for the by IHS staff in the project. Substantial Indians and Alaska Native (AI/AN) organization. These activity reports will programmatic involvement is as follows: people that supplements the health care include: 1. IHS staff will participate in the • resources available with the purchase of Trip reports for travel in connection Board of Director meetings. Purposes medical care and services that are not to the organization will be to present the IHS prospectus on available within the IHS direct care • Information on meetings attended current health care issues affecting the system which may include, but not by NCUIH regarding Indian health care Urban Indian people and allow IHS the limited to, basic and specialty health education activities, and any opportunity to hear the continuing care services from local and community documentation provided by NCUIH at unmet needs of Urban Indians. these meetings 2. IHS staff may, at the request of health care providers, including • Information relative to health status NCUIH, participate on study groups and hospital care, physician services, and health care needs of urban Indians may recommend topics for outpatient care, laboratory, dental, in urban centers consideration. radiology, pharmacy, and transportation 2. Program Progress Report: Program 3. IHS will be involved in the services. Under the Purpose of the progress reports are required semi- selection and approval process for system, we propose to include several annually. These reports will include hiring key personnel. Key personnel are new purposes that are in line with the brief comparison of actual the Executive Director, the Office Health Insurance Portability and accomplishments to the goals Administrator, and may include the Accountability Act (HIPAA) Privacy established for the period, reasons for hiring of major consultants. NCUIH Rule provisions which were slippage (if applicable), and other must submit the Executive Director and incorporated into the published IHS pertinent information as required. A Office Administrator selection criteria to Notice of Privacy Practices (NPP) and to final report is to be submitted within 90 IHS for approval when there becomes a include debt collection activities. We days of expiration of the budget/project change in staffing.; are proposing to modify/alter/delete period. 4. IHS will be involved in meetings several published routine uses, as 3. Financial Status Report: Financial held by NCUIH. explained, to accommodate for program status reports are required semi- Contacts: For program information, and statutory changes as indicated: annually. Standard Form 269 (long contact Ms. Danielle Steward, Program Number 1 is modified/altered by form) will be used for financial Specialist, Office of Urban Indian separating the medical treatment, reporting. A final report must be Health Programs, Office of the Director, payment and health care operations into submitted within 90 days of expiration Indian Health Service, Reyes Building, two separate routine uses 1 and 2 to of the budget/project period. 801 Thompson Avenue, Rockville, MD, include payment, billing, third-party 4. Financial Audit: A financial audit, 20852, (301) 443–4680. For grants reimbursement and debt collection conducted by an independent auditor management information, contact Lois activities; numbers 3, 4 and 11 are to will be completed annually for each Hodge, Grants Management Officer, include business associate agreement year within the project period (three). Division of Grants Operations, Reyes language to comply with HIPAA Privacy Failure to submit required reports Building, 801 Thompson Avenue, standards and renumbered as 5, 6 and within the time allowed may result in Rockville, MD, 20852, (301) 443–5204. 12 respectively; number 5 is to include suspension or termination of the active Dated: August 19, 2005. a special requirement notice for cooperative agreement, withholding of Mary Lou Stanton, sensitive protected health information payments or converting to the Deputy Director for Indian Health Policy (PHI) such as alcohol/drug abuse, HIV/ reimbursement method of payment. Indian Health Service. AIDS, STD or mental health patient Continued failure to submit required [FR Doc. 05–16912 Filed 8–24–05; 8:45 am] information and renumbered as 7; reports may result in the imposition of number 6 is to reflect changes in BILLING CODE 4156–16–M special award provisions, or cause other research disclosures to comply with eligible projects or activities involving HIPAA Privacy standards and the grantee organization not to be DEPARTMENT OF HEALTH AND renumbered as 8; number 7 is to include funded. HUMAN SERVICES various cases of abuses, neglect, sexual Justification for Single Source: This assault and domestic violence and project has been awarded on a non- Indian Health Service emphasis on meeting the requirements competitive single source basis. NCUIH of 42 CFR part 2 and renumbered as 9; is the only nationwide Indian Privacy Act of 1974; Report of Modified number 8 is to clarify the disclosures organization that is specifically or Altered System regarding suspected cases of child abuse established to address the health needs AGENCY: Indian Health Service (IHS), and renumbered as 10; number 9 is of American Indians and Alaska Natives HHS. modified to include legal proceedings living in urban areas with membership related to administrative claims and the ACTION: Notice of proposed modification consisting of Urban Indian health inclusive provision of the Department of or Alteration to a System of Records organizations funded under Title V of Health and Human Services (DHHS)/ (SOR). the Indian Health Care Improvement Office of General Counsel (OGC)
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49932 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
representation in litigation matters and inmate or is otherwise in lawful FOR FURTHER INFORMATION CONTACT: Ms. renumbered as 11; number 10 is custody, for the provision of health care Patricia Gowan, IHS Lead Health modified to include business associate to the individual or for health and safety Information Management (HIM) agreement language to comply with purposes; number 22, disclosure to the Consultant, Office of Clinical and HIPAA Privacy standards and is Social Security Administration (SSA) Preventative Services, Reyes Building, renumbered as 5; numbers 12 and 16 are for validation of Social Security 801 Thompson Avenue, Suite 314, modified and incorporated into one Number(s) (SSNs) purposes only; Rockville, MD 20852–1627, Telephone proposed routine use 13 with minor number 23, disclosure of relevant health (301) 443–2522. edits; number 14 is modified to reflect care information may be made to funeral SUPPLEMENTARY INFORMATION: the permitted use/disclosure director or representatives of funeral A. Major Alteration of 09–17–0001, requirements of 45 CFR 164.502(g) and homes to allow for necessary ‘‘Indian Health Service Health and remains as 14; number 15 is modified arrangements; number 24, disclosure to Medical Records Systems, HHS/IHS/ with some minor edits to reflect current a public or private covered entity that is OHP’’: IHS provides care and treatment changes to enable efficient authorized by law or charter to assist in to patients at IHS health care facilities administration of health care operations disaster relief efforts. Routine use and under contract. Whenever possible, and planning and delivery of patient previously numbered 13 is deleted as IHS seeks reimbursement through third- medical care and renumbered as 18; and being no longer applicable to the party payers such as Medicare, number 16 is being deleted and system. Routine uses previously Medicaid, and private insurers. IHS is incorporated into the proposed routine numbered 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, proposing to alter the existing system of use 13. and 15 have been renumbered as 4, 6, records as follows: We propose to add 10 new routine 7, 8, 9, 10, 11, 12, 13, 14, and 19 1. IHS is changing the title of the uses to provide disclosures of records respectively. system from ‘‘Health and Medical when all requirements are met: number The security classification previously Records System, HHS/IHS/OHP,’’ to 2, to provide disclosure for third-part reported as ‘‘None’’ will remain. We ‘‘Medical, Health, and Billing Records reimbursement, fiscal intermediary have modified the language in the System, HHS/IHS/OCPS,’’ to clarify that functions and debt collection activities; routine uses to provide clarification to IHS also uses the records in the system number 3, to provide disclosures to state IHS’ intention to disclose individual- to process, document, and monitor Medicaid agencies or other entities specific information contained in this third-party payment billing and acting pursuant to a contract with system. The routine uses will then be reimbursement claims, in addition to Centers for Medicare & Medicaid prioritized and reordered according to debt collection activities. Services (CMS) for fraud and abuse their usage. We will also take the 2. IHS is proposing to include control efforts to the extent required by opportunity to update any sections of contract health service records as an law or under an agreement between IHS the system notice to provide clarity on additional category of individuals and respective state Medicaid agency or the changing environment to include for covered by the system. other entities; number 16, to an digital records and the initiative of 3. IHS is proposing to include several individual having authority to act on transitioning from a paper-based record new purposes that are in line with the behalf of an incompetent individual to a computerized-based or electronic Health Insurance Portability and concerning health care decisions to the medical record. Accountability Act (HIPAA) Privacy extent permitted under 45 CFR DATES: Effective Dates: The Report of Rule provisions. These seven (7) new 164.502(g); number 17, information may Intent to Amend a System of Records purposes are as follow: (1) To provide be used or disclosed from an IHS facility Notice and an advance copy of the information to organ procurement directory unless the individual objects system notice have been sent to the organizations or other entities engaged to the disclosure and may provide the Chair of the House Committee on in the procurement, banking, or religious affiliation only to members of Government Reform and Oversight, the transplantation of organs to facilitate the clergy; number 18, information may Chair of the Senate Committee on organ, eye, or tissue donation and be disclosed to a relative, a close Governmental Affairs, and the transplant. (2) To provide information to personal friend, or any other person Administrator, Office of Information individuals about treatment alternatives identified by the individual that is and Regulatory Affairs, Office of or other types of health-related benefits directly relevant to that person’s Management and Budget (OMB). To and services. (3) To provide information involvement with their care or payment ensure that all parties have adequate to the Food and Drug Administration for health care and may be used or time in which to comment, the modified (FDA) in connection with an FDA- disclosed to notify family member, system of records, including routine regulated product or activity. (4) To personal representative, or other person uses, will become effective 40 days from provide information to correctional responsible for the individual’s care, of the publication of the notice, or from the institutions as necessary for health and their location, general condition or date it was submitted to OMB and the safety purposes. (5) To provide death; number 20, to provide records to Congress, whichever is later, unless IHS information to governmental authorities Federal and non-Federal protection and receives comments that require (e.g., social service or protective services advocacy organizations for investigating alterations to this notice. agencies) on victims of abuse, neglect, incidents of abuse and neglect of ADDRESSES: The public should address sexual assault or domestic violence. (6) individuals with development comments to: Mr. William Tibbitts, IHS To provide information to the National disabilities as defined in 42 U.S.C. Privacy Act Officer, Division of Archives and Records Administration in 10801–10805(a)(4) and 42 CFR 51.41–46 Regulatory, Records Access and Policy records management inspections to the extent authorized by law and the Liaison, 801 Thompson Avenue, TMP conducted under the authority of 44 conditions of 45 CFR 1386.22(a)(2) are 450, Rockville, MD 20852–1627; call U.S.C. 2901 et seq. (7) To provide met; number 21, disclosure to a non-toll free (301) 443–1116; send via relevant health care information to correctional institution or a law facsimile to (301) 443–2316, or send funeral directors or representatives of enforcement official, during the period your e-mail requests, comments, and funeral homes to allow necessary of time the individual is either an return address to: [email protected]. arrangements prior to and in
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49933
anticipation of an individual’s is to provide disclosure for third-party Authority, Safeguard, Retention and impending death. reimbursement, fiscal intermediary Disposal, Notification and Access 4. IHS is proposing to modify/alter/ functions, and debt collection activities; Procedures sections. delete several published routine uses routine use #3 is to provide state Dated: August 15, 2005. and to include ten (10) new routine uses agencies or other entities acting Charles W. Grim, when all requirements have been met. pursuant to a contract with CMS for IHS is modifying/altering routine use #1 Assistant Surgeon General, Director, Indian fraud and abuse control efforts to the Health Service. by separating the medical treatment, extent required by law or under an payment, and health care operations to agreement between IHS and respective 09–17–0001 routine uses #1 and #2 respectively; state Medicaid agency or other entities; SYSTEM NAME: routine uses #2 is renumbered as #4; routine use #16 is to provide an routine uses #3 and #4 are modified to individual having authority to act on Medical, Health, and Billing Records include business associate agreement behalf of an incompetent individual Systems, HHS/IHS/OCPS. language to comply with HIPAA Privacy concerning health care decisions to the SECURITY CLASSIFICATION: standards and renumbered as #6 and #7 extent permitted under 45 CFR None. respectively; routine use #5 is altered to 164.502(g); routine use #17 is that include a special requirement notice for certain protected health information SYSTEM LOCATION: sensitive protected health information may be used or disclosed from an IHS Indian Health Service (IHS) hospitals, (PHI) as such alcohol/drug abuse, HIV/ facility directory unless the individual health centers, school health centers, AIDS, STD or mental health patient objects to the disclosure and IHS may health stations, field clinics, Service information and renumbered as #8; provide the religious affiliation only to Units, IHS Area Offices (Appendix 1), routine use #6 is modified/altered to members of the clergy to the extent and Federal Archives and Records reflect changes in research disclosures permitted under 45 CFR 164.510; Centers (Appendix 2). Automated, to comply with HIPAA Privacy routine use #18 is that relevant electronic and computerized records, standards and renumbered as #9; protected health information may be including Patient Care Component routine use #7 is modified/altered to disclosed to a relative, a close personal (PCC) records, are stored at the include various cases of abuses, neglect, friend, or any other person identified by Information Technology Support Center sexual assault and domestic violence the individual with their care or (ITSC), IHS, located in Albuquerque, with an emphasis on 42 CFR part 2 and payment for health care. Information New Mexico (Appendix 1). Records may renumbered as #10; routine use #8 is may be used or disclosed to notify also be located at contractor sites. A modified to clarify the disclosure under family members, personal current list of contractor sites is (a) and (b) with no statutory language representative, or other person available by writing to the appropriate change on child abuse and the deletion responsible for the individual’s care, of System Manager (Area or Service Unit of statutory citation of 42 CFR Part 2 their location, general condition or Director/Chief Executive Officer) at the and renumbered as #11; routine use #9 death; routine use #20 to Federal and address shown in Appendix 1. is modified to include legal proceedings non-Federal protection and advocacy related to administrative claims and the CATEGORIES OF INDIVIDUALS COVERED BY THE organization for purpose of investigating SYSTEM: inclusive provision of the DHHS/Office incidents of abuse and neglect of Individuals, including both IHS of General Counsel (OGC) individuals with development representation in litigation matters and beneficiaries and non-beneficiaries, who disabilities as defined in 42 U.S.C. renumbered as #12; routine use #10 was are examined/treated on an inpatient 10801–10805(a)(4) and 42 CFR 51.41–46 modified/altered to reflect statutory and/or outpatient basis by IHS staff and/ to the extent authorized by law and the requirement and renumbered as #5; or contract health care providers conditions of 45 CFR 1386.22(a)(2) are routine use #11 is modified to include (including tribal contractors). met; routine use #21 is for disclosure to business associate agreement language a correctional institution or a law CATEGORIES OF RECORDS IN THE SYSTEM: to comply with the HIPAA Privacy enforcement official, during the period standards and altered to eliminate the of time the individual is either an Note: Records relating to claims by and safeguard requirements of the Privacy inmate or is otherwise in lawful against the Department of Health and Human Act and was renumbered as #13; routine Services (DHHS) are maintained in the uses #12 and #16 were modified and custody, for the provision of health care Administrative Claims System, 09–90–0062, incorporated into one proposed routine to the individual or for health and safety HHS/OS/OGC. Such claims include those use disclosure with minor edits and to purposes; routine use #22 is for arising under the Federal Torts Claims Act, efficiently administer health care disclosure to the Social Security Military Personnel and Civilian Employees operations and to assist in the planning Administration for validation of SSN(s) Claims Act, Federal Claims Collection Act, purposes only; routine use #23 is that Federal Medical Care Recovery Act, and Act and delivery of patient’s medical care for Waiver of Overpayment of Pay. and renumbered as #14; routine use #13 disclosure of relevant health care was deleted as no longer applicable to information may be made to funeral 1. Health and medical records the purpose and function of IHS; routine director or representatives of funeral containing examination, diagnostic and use #14 is modified to reflect the homes to allow for necessary treatment data, proof of IHS eligibility, permitted use/disclosure requirement of arrangements; and routine use #24 is for social data (such as name, address, date 45 CFR 164.502(g) citation and disclosure to a public or private covered of birth, Social Security Number (SSN), renumbered as #15; routine use #15 is entity that is authorized by law or tribe), laboratory test results, and dental, modified with some minor edits to charter to assist in disaster relief efforts. social service, domestic violence, sexual reflect current changes and remains as In addition to updating and making abuse and/or assault, mental health, and #15; and routine use #16 is being editorial corrections to improve the nursing information. deleted and incorporated into the new clarity of the system notice, this 2. Follow-up registers of individuals routine use #13. alteration requires the updating of the with a specific health condition or a IHS is proposing to add ten (10) new system manager listing, and revisions of particular health status such as cancer, routine uses as follows: routine use #2 the Categories of Records, Purposes, diabetes, communicable diseases,
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49934 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
suspected and confirmed abuse and 6. For disease surveillance purposes. 12. To provide information to the neglect, immunizations, suicidal For example: Food and Drug Administration (FDA) in behavior, or disabilities. (a) The Centers for Disease Control connection with an FDA-regulated 3. Logs of individuals provided health and Prevention may use these records to product or activity. care by staff of specific hospital or clinic monitor various communicable 13. To provide information to departments such as surgery, diseases; correctional institutions as necessary for emergency, obstetric delivery, medical (b) The National Institutes of Health health and safety purposes. imaging, and laboratory. may use these records to review the 14. To provide information to 4. Surgery and/or disease indices for prevalence of particular diseases (e.g., governmental authorities (e.g., social individual facilities that list each malignant neoplasms, diabetes mellitus, services or protective services agencies) relevant individual by the surgery or arthritis, metabolism, and digestive on victims of abuse, neglect, sexual disease. diseases) for various ethnic groups of assault or domestic violence. 5. Monitoring strips and tapes such as the United States; or 15. To provide information to the fetal monitoring strips and EEG and (c) Those public health authorities National Archives and Records EKG tapes. that are authorized by law may use Administration in records management 6. Third-party reimbursement and these records to collect or receive such inspections conducted under the billing records containing name, information for purposes of preventing authority of 44 U.S.C 2901 et seq. address, date of birth, dates of service, or controlling disease, injury, or 16. To provide relevant health care third party insurer claim numbers, SSN, disability, including, but not limited to, information to funeral directors or health plan name, insurance number, the reporting of disease, injury, vital representatives of funeral homes to employment status, and other relevant events such as birth or death and the allow necessary arrangements prior to claim information necessary to process conduct of public health surveillance, and in anticipation of an individual’s and validate third-party reimbursement investigations, and interventions. impending death. claims. 7. To compile and provide aggregated ROUTINE USES OF RECORDS MAINTAINED IN THE 7. Contract Health Service (CHS) program statistics. Upon request of other SYSTEM, INCLUDING CATEGORIES OF USERS AND records containing name, address, date components of DHHS, IHS will provide THE PURPOSES OF SUCH USES: of birth, dates of care, Medicare or statistical information, from which This system of records contains Medicaid claim numbers, SSN, health individual/personal identifiers have individually identifiable health plan name, insurance number, been removed, such as: information. The DHHS Privacy Act employment status, and other relevant (a) To the National Committee on Regulations (45 CFR Part 5b) and the claim information necessary to Vital and Health Statistics for its Privacy Rule (45 CFR Parts 160 and 164) determine CHS eligibility and to process dissemination of aggregated health issued pursuant to the Health Insurance CHS claims. statistics on various ethnic groups; Portability and Accountability Act AUTHORITY FOR MAINTENANCE OF THE SYSTEM: (b) To the Assistant Secretary for (HIPAA) of 1996 apply to most health Planning and Evaluation, Health Policy Departmental Regulations (5 U.S.C. information maintained by IHS. Those to keep a record of the number of 301); Privacy Act of 1974 (5 U.S.C. regulations may place additional sterilizations provided by Federal 552a); Federal Records Act (44 U.S.C. procedural requirements on the uses funding; 2901); Section 321 of the Public Health and disclosures of such information (c) To the Centers for Medicare & Service Act, as amended (42 U.S.C. beyond those found in the Privacy Act Medicaid Services (CMS) to document 248); Section 327A of the Public Health of 1974 or mentioned in this system of IHS health care covered by the Medicare Service Act, as amended (42 U.S.C. records notice. An accounting of all and Medicaid programs for third-party 254a); Snyder Act (25 U.S.C. 13); Indian disclosures of a record made pursuant to reimbursement; or Health Care Improvement Act (25 U.S.C. the following routine uses will be made 1601 et seq.); and the Transfer Act of (d) To the Office of Clinical Standards and maintained by IHS for five years or 1954 (42 U.S.C. 2001–2004). and Quality, CMS to determine the for the life of the records, whichever is prevalence of end-stage renal disease longer. PURPOSES: among the American Indian and Alaska Note: Special requirements for alcohol and The purposes of this system are: Native (AI/AN) population and to coordinate individual care. drug abuse patients: If an individual receives 1. To provide a description of an treatment or a referral for treatment for individual’s diagnosis, treatment and 8. To process and collect third-party alcohol or drug abuse, then the outcome, and to plan for immediate and claims and facilitate fiscal intermediary Confidentiality of Alcohol and Drug Abuse future care of the individual. functions and to process debt collection Patient Records Regulations, 42 CFR Part 2 2. To provide statistical data to IHS activities. may apply. In general, under these officials in order to evaluate health care 9. To improve the IHS national regulations, the only disclosures of the programs and to plan for future needs. patient care database by means of alcohol or drug abuse record that may be 3. To serve as a means of obtaining and verifying an individual’s made without patient consent are: (1) To communication among members of the SSN with the Social Security meet medical emergencies (42 CFR 2.51), (2) Administration (SSA). for research, audit, evaluation and health care team who contribute to the examination (42 CFR 2.52 and 2.53), (3) individual’s care; e.g., to integrate 10. To provide information to organ pursuant to a court order (42 CFR 2.61–2.67), information from field visits with procurement organizations or other and (4) pursuant to a qualified service records of treatment in IHS facilities and entities engaged in the procurement, organization agreement, as defined in 42 CFR with non-IHS health care providers. banking, or transplantation of organs to 2.11. In all other situations, written consent 4. To serve as the official facilitate organ, eye, or tissue donation of the individual is usually required prior to documentation of an individual’s health and transplant. disclosure of alcohol or drug abuse care. 11. To provide information to information under the routine uses listed 5. To contribute to continuing individuals about treatment alternatives below. education of IHS staff to improve the or other types of health-related benefits 1. Records may be disclosed to delivery of health care services. and services. Federal and non-Federal (public or
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49935
private) health care providers that (b) Determining that the use(s) or litigation and/or proceedings related to provide health care services to IHS disclosure(s) are met under 45 CFR an administrative claim or has an individuals for purposes of planning for 164.514(a) through (c) for de-identified interest in the litigation and/or or providing such services, or reporting PHI, and 5 U.S.C. 552a(b)(5), or proceedings related to an administrative results of medical examination and (c) Determining that the requirements claim: treatment. of 45 CFR 164.514(e) for limited data (i) DHHS or any component thereof; 2. Records may be disclosed to sets, and 5 U.S.C. 552a(b)(5) are met. or Federal, state, local or other authorized 10. Information from records, such as (ii) Any DHHS employee in his or her organizations that provide third-party information concerning the commission official capacity; or reimbursement or fiscal intermediary of crimes, suspected cases of abuse (iii) Any DHHS employee in his or her functions for the purposes of billing or (including child, elder and sexual individual capacity where the DOJ (or collecting third-party reimbursements. abuse), neglect, sexual assault or DHHS, where it is authorized to do so) Relevant records may be disclosed to domestic violence, births, deaths, has agreed to represent the employee; or debt collection agencies under a alcohol or drug abuse, immunizations, (iv) The United States or any agency business associate agreement cancer, or the occurrence of thereof (other than DHHS) where arrangement directly or through a third communicable diseases, may be DHHS/OGC has determined that the party. disclosed to public health authorities or litigation and/or proceedings related to 3. Records may be disclosed to state other appropriate government an administrative claim is likely to agencies or other entities acting authorities, as authorized by Federal, affect DHHS or any of its components. pursuant to a contract with CMS, for state, Tribal or local law or regulation of (b) In the litigation and/or fraud and abuse control efforts, to the the jurisdiction in which the facility is proceedings related to an administrative extent required by law or under an located. claim described in subsection (a) above, agreement between IHS and respective information from these records may be state Medicaid agency or other entities. Note: In Federally conducted or assisted disclosed to a court or other tribunal, or 4. Records may be disclosed to school alcohol or drug abuse programs, under 42 to another party before such tribunal in health care programs that serve AI/AN CFR Part 2, disclosure of patient information response to an order of a court or for purposes of criminal investigations must administrative tribunal, provided that for the purpose of student health be authorized by court order issued under 42 maintenance. CFR Part 2.65, except that reports of the covered entity discloses only the 5. Records may be disclosed to the suspected child abuse may be made to the information expressly authorized by Bureau of Indian Affairs (BIA) or its appropriate state or local authorities under such order. contractors under an agreement between state law. 13. Records may be disclosed under a IHS and the BIA relating to disabled AI/ business associate agreement to an IHS AN children for the purposes of carrying 11. Information may be disclosed contractor for the purpose of out its functions under the Individuals from these records regarding suspected computerized data entry, medical with Disabilities Education Act (IDEAS), cases of child abuse to: transcription, duplication services, or 20 U.S.C.1400, et seq. (a) Federal, state or Tribal agencies maintenance of records contained in 6. Records may be disclosed to that need to know the information in the this system. organizations deemed qualified by the performance of their duties, and 14. Records may be disclosed under a Secretary of DHHS and under a business (b) Members of community child personal services contract or other associate agreement to carry out quality protection teams for the purposes of agreement to student volunteers, assessment/improvement, medical investigating reports of suspected child individuals working for IHS, and other audits, utilization review or to provide abuse, establishing a diagnosis, individuals performing functions for accreditation or certification of health formulating or monitoring a treatment IHS who do not technically have the care facilities or programs. plan, and making recommendations to status of agency employees, if they need 7. Records may be disclosed under a the appropriate court. Community child the records in the performance of their business associate agreement to protection teams are comprised of agency functions. individuals or authorized organizations representatives of Tribes, the Bureau of 15. Records regarding specific sponsored by IHS, such as the National Indian Affairs, child protection service medical services provided to an Indian Women’s Resource Center, to agencies, the judicial system, law unemancipated minor individual may conduct analytical and evaluation enforcement agencies and IHS. be disclosed to the unemancipated studies. 12. IHS may disclose information minor’s parent or legal guardian who 8. Disclosure may be made to a from these records in litigations and/or previously consented to those specific congressional office from the record of proceedings related to an administrative medical services, to the extent permitted an individual in response to an inquiry claim when: under 45 CFR 164.502(g). from the congressional office made at (a) IHS has determined that the use of 16. Records may be disclosed to an the request of that individual. An such records is relevant and necessary individual having authority to act on authorization, Form IHS 810, is required to the litigation and/or proceedings behalf of an incompetent individual for the disclosure of sensitive protected related to an administrative claim and concerning health care decisions, to the health information (PHI) (e.g., alcohol/ would help in the effective extent permitted under 45 CFR drug abuse patient information, human representation of the affected party 164.502(g). immunodeficiency virus (HIV)/AIDS, listed in subsections (i) through (iv) 17. Information may be used or STD, or mental health) that is below, and that such disclosure is disclosed from an IHS facility directory maintained in the medical record. compatible with the purpose for which in response to an inquiry about a named 9. Records may be disclosed for the records were collected. Such individual from a member of the general research purposes to the extent disclosure may be made to the DHHS/ public to establish the individual’s permitted by: Office of General Counsel (OGC) and/or presence (and location when needed for (a) Determining that the use(s) or Department of Justice (DOJ), pursuant to visitation purposes) or to report the disclosure(s) are met under 45 CFR an agreement between IHS and OGC, individual’s condition while 164.512(i), or when any of the following is a party to hospitalized (e.g., satisfactory or stable),
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49936 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
unless the individual objects to information for a purpose other than POLICIES AND PRACTICES FOR STORING, disclosure of this information. IHS may that for which the disclosure was made. RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: provide the religious affiliation only to 20. Records may be disclosed to members of the clergy. Federal and non-Federal protection and STORAGE: 18. Information may be disclosed to a advocacy organizations that serve AI/ File folders, ledgers, card files, relative, a close personal friend, or any AN for the purpose of investigating microfiche, microfilm, computer tapes, other person identified by the incidents of abuse and neglect of disk packs, digital photo discs, and individual that is directly relevant to individuals with developmental automated, computer-based or that person’s involvement with the disabilities (including mental electronic files. individual’s care or payment for health disabilities), as defined in 42 U.S.C. RETRIEVABILITY: care. §§ 10801–10805(a)(4) and 42 CFR Indexed by name, record number, and Information may also be used or §§ 51.41–46, to the extent that such SSN and cross-indexed. disclosed in order to notify a family disclosure is authorized by law and the member, personal representative, or conditions of 45 CFR § 1386.22(a)(2) are SAFEGUARDS: other person responsible for the met. Safeguards apply to records stored on- individual’s care, of the individual’s 21. Records of an individual may be site and off-site. location, general condition or death. disclosed to a correctional institution or 1. Authorized Users: Access is limited If the individual is present for, or a law enforcement official, during the to authorized IHS personnel, volunteers, otherwise available prior to, a use or period of time the individual is either IHS contractors, subcontractors, and disclosure, and is competent to make an inmate or is otherwise in lawful other business associates in the health care decisions; custody, for the provision of health care performance of their duties. Examples of (a) May use or disclose after the to the individual or for health and safety authorized personnel include: Medical facility obtains the individual’s consent, purposes. Disclosure may be made upon records personnel, business office (b) Provides the individual with the the representation of either the personnel, contract health staff, health opportunity to object and the individual institution or a law enforcement official care providers, authorized researchers, does not object, or that disclosure is necessary for the medical audit personnel, health care (c) It could reasonably infer, based on provision of health care to the team members, and legal and professional judgment, that the individual, for the health and safety of administrative personnel on a need to individual does not object. the individual and others (e.g., other know basis. If the individual is not present, or the inmates, employees of the correctional 2. Physical Safeguards: Records are opportunity to agree or object cannot facility, transport officers), and for kept in locked metal filing cabinets or practicably be provided due to facility administration and operations. in a secured room or in other monitored incapacity or emergent circumstances, This routine use applies only for as long areas accessible to authorized users at an IHS health care provider may as the individual remains in lawful all times when not actually in use determine, based on professional custody, and does not apply once the during working hours and at all times judgment, whether disclosure is in the individual is released on parole or during non-working hours. Magnetic individual’s best interest, and if so, may placed on either probation or on tapes, disks, other computer equipment disclose only what is directly relevant to supervised release, or is otherwise no (e.g., pc workstations) and other forms the individual’s health care. longer in lawful custody. of personal data are stored in areas 19. Information concerning exposure 22. Records including patient name, where fire and life safety codes are to the HIV may be disclosed, to the strictly enforced. Telecommunication extent authorized by Federal, state or date of birth, SSN, gender and other identifying information may be equipment (e.g., computer terminal, Tribal law, to the sexual and/or needle- servers, modems and disks) of the sharing partner(s) of a subject individual disclosed to the SSA as is reasonably necessary for the purpose of conducting Resource and Patient Management who is infected with HIV under the System (RPMS) are maintained in following circumstances: an electronic validation of the SSN(s) maintained in the record to the extent locked rooms during non-working (a) The information has been obtained hours. Network (Internet or Intranet) in the course of clinical activities at IHS required under an agreement between IHS and SSA. access of authorized individual(s) to facilities; various automated and/or electronic (b) IHS has made reasonable efforts to 23. Disclosure of relevant health care programs or computers (e.g., desktop, counsel and encourage the subject information may be made to funeral laptop, handheld or other computer individual to provide information to the directors or representatives of funeral types) containing protected personal individual’s sexual or needle-sharing homes in order to allow them to make identifiers or personal health partner(s); necessary arrangements prior to and in information (PHI) is reviewed (c) IHS determines that the subject anticipation of an individual’s periodically and controlled for individual is unlikely to provide the impending death. authorizations, accessibility levels, information to the sexual or needle- 24. Records may be disclosed to a expirations or denials, including sharing partner(s) or that the provision public or private covered entity that is passwords, encryptions or other devices of such information cannot reasonably authorized by law or charter to assist in to gain access. Combinations and/or be verified; and disaster relief efforts (e.g., the Red Cross electronic passcards on door locks are (d) The notification of the partner(s) is and the Federal Emergency Management changed periodically and whenever an made, whenever possible, by the subject Administration), for purposes of IHS employee resigns, retires or is individual’s physician or by a coordinating information with other reassigned. professional counselor and shall follow similar entities concerning an 3. Procedural Safeguards: Within each standard counseling practices. individual’s health care, payment for facility a list of personnel or categories (e) IHS has advised the partner(s) to health care, notification of the of personnel having a demonstrable whom information is disclosed that they individual’s whereabouts and his or her need for the records in the performance shall not re-disclose or use such health status or death. of their duties has been developed and
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49937
is maintained. Procedures have been Standards for the Protection of professional. When a subject individual developed and implemented to review Electronic Protected Health Information, is seeking to obtain information about one-time requests for disclosure to 45 CFR §§ 164.302 through 164.318; and himself/herself that may be retrieved by personnel who may not be on the E-Government Act of 2002 (Pub. L. 107– a different name or identifier than his/ authorized user list. Proper charge-out 347, 44 U.S.C. Ch 36). her current name or identifier, he/she procedures are followed for the removal shall be required to produce evidence to RETENTION AND DISPOSAL: of all records from the area in which verify that he/she is the person whose they are maintained. Records may not Patient listings which may identify record he/she seeks. No verification of be removed from the facility except in individuals are maintained in IHS Area identity shall be required where the certain circumstances, such as and Program Offices permanently. record is one that is required to be compliance with a valid court order or Inactive records are held at the facility disclosed under the Freedom of shipment to the Federal Records that provided health and billing services Information Act. Where applicable, fees Center(s). Persons who have a need to from three to seven years and then are for copying records will be charged in know are entrusted with records from transferred to the appropriate Federal accordance with the schedule set forth this system of records and are instructed Records Center. Monitoring strips and in 45 CFR Part 5b. to safeguard the confidentiality of these tapes (e.g., fetal monitoring strips, EEG REQUESTS IN PERSON: records. These individuals are to make and EKG tapes) that are not stored in the no further disclosure of the records individual’s official medical record are Identification papers with current except as authorized by the system stored at the health facility for one year photographs are preferred but not manager and permitted by the Privacy and are then transferred to the required. If a subject individual has no Act and the HIPAA Privacy Rule as appropriate Federal Records Center. identification but is personally known adopted, and to destroy all copies or to (See Appendix 2 for Federal Records to the designated agency employee, return such records when the need to Center addresses.) In accordance with such employee shall make a written know has expired. Procedural the records disposition authority record verifying the subject individual’s instructions include the statutory approved by the Archivist of the United identity. If the subject individual has no penalties for noncompliance. States, paper records are maintained for identification papers, the responsible The following automated information 75 years after the last episode of system manager or designated agency systems (AIS) security procedural individual care except for billing official shall require that the subject safeguards are in place for automated records. The retention and disposal individual certify in writing that he/she health and medical records maintained methods for billing records will be in is the individual whom he/she claims to in the RPMS. A profile of automated accordance with the approved IHS be and that he/she understands that the systems security is maintained. Security Records Schedule. The disposal knowing and willful request or clearance procedures for screening methods of paper medical and health acquisition of records concerning an individuals, both Government and records will be in accordance with the individual under false pretenses is a contractor personnel, prior to their approved IHS Records Schedule. The criminal offense subject to a $5,000 fine. participation in the design, operation, electronic data consisting of the If an individual is unable to sign his/her use or maintenance of IHS AIS are individual personal identifiers and PHI name when required, he/she shall make implemented. The use of current maintained in the RPMS or any his/her mark and have the mark verified passwords and log-on codes are subsequent revised IHS database system in writing by two additional persons. required to protect sensitive automated should be inactivated once the paper REQUESTS BY MAIL: data from unauthorized access. Such record is forwarded to the appropriate Written requests must contain the passwords and codes are changed Federal Records Center. name and address of the requester, his/ periodically. An automated or electronic her date of birth and at least one other audit trail is maintained and reviewed SYSTEM MANAGER(S) AND ADDRESS: piece of information that is also periodically. Only authorized IHS Policy Coordinating Official: Director, Division of Information Resources staff Office of Clinical and Preventive contained in the subject record, and his/ may modify automated files in batch Services, Indian Health Service, Reyes her signature for comparison purposes. mode. Personnel at remote terminal Building, 801 Thompson Avenue, Suite If the written request does not contain sites may only retrieve automated or 300, Rockville, Maryland 20852–1627. sufficient information, the System electronic data. Such retrievals are See Appendix 1. The IHS Area Office Manager shall inform the requester in password protected. Privacy Act Directors, Service Unit Directors/Chief writing that additional, specified requirements, HIPAA Privacy Rule and Executive Officers and Facility Directors information is required to process the Security requirements and specified AIS listed in Appendix 1 are System request. security provisions are specifically Managers. REQUESTS BY TELEPHONE: included in contracts and agreements NOTIFICATION PROCEDURE: Since positive identification of the and the system manager or his/her GENERAL PROCEDURE: caller cannot be established, telephone designee oversee compliance with these requests are not honored. contract requirements. Requests must be made to the 4. Implementing Guidelines: DHHS appropriate System Manager (IHS Area, PARENTS, LEGAL GUARDIANS AND PERSONAL Chapter 45–10 and supplementary Program Office Director or Service Unit REPRESENTATIVES: Chapter PHS.hf: 45–10 of the General Director/Chief Executive Officer). A Parents of minor children and legal Administration Manual; DHHS, subject individual who requests a copy guardians or personal representatives of ‘‘Automated Information Systems of, or access to, his or her medical legally incompetent individuals shall Security Program Handbook,’’ as record shall, at the time the request is verify their own identification in the amended; DHHS IRM Policy HHS–IRM– made, designate in writing a responsible manner described above, as well as their 2000–0005, ‘‘IRM Policy for IT Security representative who will be willing to relationship to the individual whose for Remote Access’; OMB Circular A– review the record and inform the subject record is sought. A copy of the child’s 130 ‘‘Management of Federal individual of its contents. Such a birth certificate or court order Information Resources’; HIPAA Security representative may be an IHS health establishing legal guardianship may be
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49938 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
required if there is any doubt regarding Director, Pine Ridge Service Unit, Pine Ridge Director, Santo Domingo Health Center, P.O. the relationship of the individual to the Indian Hospital, Pine Ridge, South Dakota Box 340, Santo Domingo, New Mexico patient. 57770. 87052. Director, Rapid City Service Unit, Rapid City Director, Southern Colorado-Ute Service RECORD ACCESS PROCEDURES: Indian Hospital, 3200 Canyon Lake Drive, Unit, P.O. Box 778, Ignacio, Colorado Rapid City, South Dakota 57701. 81137. SAME AS NOTIFICATION PROCEDURES: Director, Rosebud Service Unit, Rosebud Director, Ignacio Indian Health Center, P.O. Requesters may write, call or visit the Indian Hospital, Rosebud, South Dakota Box 889, Ignacio, Colorado 81137. last IHS facility where medical care was 57570. Director, Towaoc Ute Health Center, Towaoc, provided. Requesters should also Director, Sisseton-Wahpeton Service Unit, Colorado 81334. provide a reasonable description of the Sisseton Indian Hospital, P.O. Box 189, Director, Jicarilla Indian Health Center, P.O. record being sought. Requesters may Sisseton, South Dakota 57262. Box 187, Dulce, New Mexico 87528. Director, Standing Rock Service Unit, Fort Director, Mescalero Service Unit, Mescalero also request an accounting of Yates Indian Hospital, P.O. Box J, Fort Indian Hospital, P.O. Box 210, Mescalero, disclosures that have been made of their Yates, North Dakota 58538. New Mexico 88340. record, if any. Director, Trenton-Williston Indian Health Director, Taos/Picuris Indian Health Center, Center, P.O. Box 210, Trenton, North P.O. Box 1956, 1090 Goat Springs Road, CONTESTING RECORD PROCEDURES: Dakota 58853. Taos, New Mexico 87571. Requesters may write, call or visit the Director, Turtle Mountain Service Unit, Director, Zuni Service Unit, Zuni Indian appropriate IHS Area/Program Office Belcourt Indian Hospital, P.O. Box 160, Hospital, Zuni, New Mexico 87327. Director or Service Unit Director/Chief Belcourt, North Dakota 58316. Director, Pine Hill Health Center, P.O. Box Executive Officer at his/her address Director, Wanblee Indian Health Center, 100 310, Pine Hill, New Mexico 87357. Director, Bemidji Area Indian Health Service, specified in Appendix 1, and specify the Clinic Drive, Wanblee, South Dakota 57577. 522 Minnesota Avenue, N.W., Bemidji, information being contested, the Minnesota 56601. corrective action sought, and the Director, Yankton-Wagner Service Unit, Wagner Indian Hospital, 110 Washington Director, Red Lake Service Unit, PHS Indian reasons for requesting the correction, Street, Wagner, South Dakota 57380. Hospital, Highway 1, Red Lake, Minnesota along with supporting information to Director, Youth Regional Treatment Center, 56671. show how the record is inaccurate, P.O. Box #68, Mobridge, South Dakota Director, Leech Lake Service Unit, PHS incomplete, untimely, or irrelevant. 57601. Indian Hospital, 425 7th Street, NW., Cass Director, Sac & Fox Health Center, 307 Lake, Minnesota 56633. Director, White Earth Service Unit, PHS RECORD SOURCE CATEGORIES: Meskwaki Road, Tama, Iowa 52339. Indian Hospital, P.O. Box 358, White Earth, Individual and/or family members, Director, Santee Health Center, 425 Frazier Minnesota 56591. Avenue, N ST Street #2, Niobrara, IHS health care personnel, contract Director, Billings Area Indian Health Service, Nebraska 68760. health care providers, State and local P.O. Box 36600, 2900 4th Avenue North, Director, Alaska Area Native Indian Health health care provider organizations, Billings, Montana 59101. Medicare and Medicaid funding Service, 4141 Ambassador Drive, Suite Director, Blackfeet Service Unit, Browning 300, Anchorage, Alaska 99508–5928. agencies, and the SSA. Indian Hospital, P.O. Box 760, Browning, Director, Albuquerque Area Indian Health Montana 59417. SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS Service, 5300 Homestead Road, NE, Director, Heart Butte PHS Indian Health OF THE ACT: Albuquerque, New Mexico 87110. Clinic, Heart Butte, Montana 59448. Director, Acoma-Canoncito-Laguna Service None. Director, Crow Service Unit, Crow Indian Unit, Acoma-Canoncito-Laguna Indian Hospital, Crow Agency, Montana 59022. Appendix 1—System Managers and Hospital, P.O. Box 130, San Fidel, New Director, Lodge Grass PHS Indian Health IHS Locations Under Their Jurisdiction Mexico 87049.´ Center, Lodge Grass, Montana 59090. Where Records are Maintained: Director, ToHajille Health Center, P.O. Box Director, Pryor PHS Indian Health Clinic, 3528, Canoncito, New Mexico 87026. P.O. Box 9, Pryor, Montana 59066. Director, Aberdeen Area Indian Health Director, New Sunrise Treatment Center, P.O. Director, Fort Peck Service Unit, Poplar Service, Room 309, Federal Building, 115 Box 219, San Fidel, New Mexico 87049. Indian Hospital, Poplar, Montana 59255. Fourth Avenue, SE, Aberdeen, South Director, Albuquerque Service Unit, Director, Fort Belknap Service Unit, Harlem Dakota 57401. Albuquerque Indian Hospital, 801 Vassar Indian Hospital, Harlem, Montana 59526. Director, Cheyenne River Service Unit, Eagle Drive, NE, Albuquerque, New Mexico Director, Hays PHS Indian Health Clinic, Butte Indian Hospital, P.O. Box 1012, Eagle 87049. Hays, Montana 59526. Butte, South Dakota 57625. Director, Albuquerque Indian Dental Clinic, Director, Northern Cheyenne Service Unit, Director, Crow Creek Service Unit, Ft. P.O. Box 67830, Albuquerque, New Mexico Lame Deer Indian Health Center, Lame Thompson Indian Health Center, P.O. Box 87193. Deer, Montana 59043. 200, Ft. Thompson, South Dakota 57339. Director, Alamo Navajo Health Center, P.O. Director, Wind River Service Unit, Fort Director, Fort Berthold Service Unit, Fort Box 907, Magdalena, New Mexico 87825. Washakie Indian Health Center, Fort Berthold Indian Health Center, P.O. Box Director, Jemez PHS Health Center, P.O. Box Washakie, Wyoming 82514. 400, New Town, North Dakota 58763. 279, Jemez, New Mexico 87024 Director, Arapahoe Indian Health Center, Director, Carl T. Curtis Health Center, P.O. Director, Santa Ana PHS Health Center, P.O. Arapahoe, Wyoming 82510. Box 250, Macy, Nebraska 68039. Box 37, Bernalillo, New Mexico 87004. Director, Chief Redstone Indian Health Director, Fort Totten Service Unit, Fort Director, Sandia PHS Health Center, P.O. Box Center, Wolf Point, Montana 59201. Totten Indian Health Center, P.O. Box 200, 6008, Bernalillo, New Mexico 87004. Director, California Area Indian Health Fort Totten, North Dakota 58335. Director, Zia PHS Health Center, 155 Capital Service, John E. Moss Federal Building, Director, Kyle Indian Health Center, P.O. Box Square, Zia, New Mexico 87053. 650 Capitol Mall, Suite 7–100, Sacramento, 540, Kyle, South Dakota 57752. Director, Santa Fe Service Unit, Santa Fe California 95814. Director, Lower Brule Indian Health Center, Indian Hospital, 1700 Cerrillos Road, Santa Director, Nashville Area Indian Health P.O. Box 191, Lower Brule, South Dakota Fe, New Mexico 87501. Service, 711 Stewarts Ferry Pike, 57548. Director, Santa Clara Health Center, RR5, Box Nashville, Tennessee 37214–2634. Director, McLaughlin Indian Health Center, 446, Espanola, New Mexico 87532. Director, Catawba PHS Indian Nation of P.O. Box 879, McLaughlin, South Dakota Director, San Felipe Health Center, P.O. Box South Carolina, P.O. Box 188, Catawba, 57642. 4344, San Felipe, New Mexico 87001. South Carolina 29704. Director, Omaha-Winnebago Service Unit, Director, Cochiti Health Center, P.O. Box 105, Director, Unity Regional Youth Treatment Winnebago Indian Hospital, Winnebago, 255 Cochiti Street, Cochiti, New Mexico Center, P.O. Box C–201, Cherokee, North Nebraska 68071. 87072. Carolina 28719.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49939
Director, Navajo Area Indian Health Service, Director, Watonga Indian Health Center, Director, Whiteriver Service Unit, Cibecue P.O. Box 9020, Highway 264, Window Route 1, Box 34-A, Watonga, Oklahoma Health Center, P.O. Box 37, Cibecue, Rock, Arizona 86515–9020. 73772. Arizona 85941. Director, Chinle Service Unit, Chinle Director, Haskell Service Unit, PHS Indian Director, Whiteriver Service Unit, Whiteriver Comprehensive Health Care Facility, PO Health Center, 2415 Massachusetts Indian Hospital, P.O. Box 860, Whiteriver, Drawer PH, Chinle, Arizona 86503. Avenue, Lawrence, Kansas 66044. Arizona 85941. Director, Tsaile Health Center, P.O. Box 467, Director, Lawton Service Unit, Lawton Indian Director, Desert Vision Youth Wellness Navajo Routes 64 and 12, Tsaile, Arizona Hospital, 1515 Lawrie Tatum Road, Center/RTC, P.O. Box 458, Sacaton, AZ 86556. Lawton, Oklahoma 73501. 85247. Director, Rock Point Field Clinic, c/o Tsaile Director, Anadarko Indian Health Center, Director, Portland Area Indian Health Health Center, P.O. Box 647, Tsaile, P.O. Box 828, Anadarko, Oklahoma 73005. Service, Room 476, Federal Building, 1220 Arizona 86557. Director, Carnegie Indian Health Center, P.O. Southwest Third Avenue, Portland, Oregon Director, Pinon Health Station, Pinon, Box 1120, Carnegie, Oklahoma 73150. 97204–2829. Arizona 86510. Director, Holton Service Unit, PHS Indian Director, Colville Service Unit, Colville Director, Crownpoint Service Unit, Health Center, 100 West 6th Street, Holton, Indian Health Center, P.O. Box 71–Agency Crownpoint Comprehensive Health Care Kansas 66436. Campus, Nespelem, Washington 99155. Facility, P.O. Box 358, Crownpoint, New Director, Pawnee Service Unit, Pawnee Director, Fort Hall Service Unit, Not-Tsoo Mexico 87313. Indian Service Center, RR2, Box 1, Pawnee, Gah-Nee Health Center, P.O. Box 717, Fort Director, Pueblo Pintado Health Station, c/o Oklahoma 74058–9247. Hall, Idaho 83203. Crownpoint Comprehensive Health Care Director, Pawhuska Indian Health Center, Director, Neah Bay Service Unit, Sophie Facility, P.O. Box 358, Crownpoint, New 715 Grandview, Pawhuska, Oklahoma Trettevick Indian Health Center, P.O. Box Mexico 87313. 74056. 410, Neah Bay, Washington 98357. Director, Fort Defiance Service Unit, Fort Director, Tahlequah Service Unit, W. W. Director, Warm Springs Service Unit, Warm Defiance Indian Hospital, P.O. Box 649, Hastings Indian Hospital, 100 S. Bliss, Springs Indian Health Center, P.O. Box Intersection of Navajo Routes N12 & N7, Tahlequah, Oklahoma 74464. 1209, Warm Springs, Oregon 97761. Fort Defiance, Arizona 86515. Director, Wewoka Indian Health Center, P.O. Director, Wellpinit Service Unit, David C. Director, Nahata Dziil Health Center, P.O. Box 1475, Wewoka, Oklahoma 74884. Wynecoop Memorial Clinic, P.O. Box 357, Box 125, Sanders, Arizona 86512. Director, Phoenix Area Indian Health Wellpinit, Washington 99040. Director, Gallup Service Unit, Gallup Indian Service, Two Renaissance Square, 40 North Director, Western Oregon Service Unit, Medical Center, P.O. Box 1337, Nizhoni Central Avenue, Phoenix, Arizona 85004. Chemawa Indian Health Center, 3750 Boulevard, Gallup, New Mexico 87305. Director, Colorado River Service Unit, Chemawa Road, NE, Salem, Oregon 97305– Director, Tohatchi Indian Health Center, P.O. Chemehuevi Indian Health Clinic, P.O. Box 1198. Box 142, Tohatchi, New Mexico 87325. 1858, Havasu Landing, California 92363. Director, Yakama Service Unit, Yakama Director, Ft. Wingate Health Station, c/o Director, Colorado River Service Unit, Indian Health Center, 401 Buster Road, Gallup Indian Medical Center, P.O. Box Havasupai Indian Health Station, P.O. Box Toppenish, Washington 98948. 1337, Gallup, New Mexico 87305. 129, Supai, Arizona 86435. Director, Tucson Area Indian Health Service, Director, Kayenta Service Unit, Kayenta 7900 South ‘‘J’’ Stock Road, Tucson, Indian Health Center, P.O. Box 368, Director, Colorado River Service Unit, Parker Indian Health Center, 12033 Agency Road, Arizona 85746–9352. Kayenta, Arizona 86033. Director, Pascua Yaqui Service Unit, Division Director, Inscription House Health Center, Parker, Arizona 85344. Director, Colorado River Service Unit, Peach of Public Health, 7900 South ‘‘J’’ Stock P.O. Box 7397, Shonto, Arizona 86054. Road, Tucson, Arizona 85746. Director, Dennehotso Clinic, c/o Kayenta Springs Indian Health Center, P.O. Box 190, Peach Springs, Arizona 86434. Director, San Xavier Indian Health Center, Health Center, P.O. Box 368, Kayenta, 7900 South ‘‘J’’ Stock Road, Tucson, Arizona 86033. Director, Colorado River Service Unit, Sherman Indian High School, 9010 Arizona 85746. Director, Shiprock Service Unit, Northern Director, Sells Service Unit, Santa Rosa Navajo Medical Center, P.O. Box 160, U.S. Magnolia Avenue, Riverside, California 92503. Indian Health Center, HCO1, Box 8700, Hwy 491 North, Shiprock, New Mexico Sells, Arizona 85634. 87420. Director, Elko Service Unit, Newe Medical Clinic, 400 ‘‘A’’ Newe View, Ely, Nevada Director, Sells Service Unit, Sells Indian Director, Dzilth-Na-O-Dith-Hle Indian Health Hospital, P.O. Box 548, Sells, Arizona Center, 6 Road 7586, Bloomfield, New 89301. Director, Elko Service Unit, Southern Bands 85634. Mexico 87413. Director, Sells Service Unit, West Side Health Director, Teecnospos Health Center, P.O. Box Health Center, 515 Shoshone Circle, Elko, Nevada 89801. Station, P.O. Box 548, Sells, Arizona 103, N5114 BIA School Road, Teecnospos, 85634. Arizona 86514. Director, Fort Yuma Service Unit, Fort Yuma Director, Sanostee Health Station, c/o Indian Hospital, P.O. Box 1368, Fort Yuma, Appendix 2—Federal Archives and Northern Navajo Medical Center, P.O. Box Arizona 85366. Records Centers 160, Shiprock, New Mexico 87420. Director, Keams Canyon Service Unit, Hopi Director, Toadlena Health Station, c/o Health Care Center, P.O. Box 4000, District of Columbia, Maryland Except U.S. Northern Navajo Medical Center, P.O. Box Polacca, Arizona 86042. Court Records for Maryland, Washington 160, Shiprock, New Mexico 87420. Director, Schurz Service Unit, Schurz Service National Records Center, 4205 Suitland Director, Teen Life Center, c/o Northern Unit Administration, Drawer A, Schurz, Road, Suitland, Maryland 20746–8001. Navajo Medical Center, P.O. Box 160, Nevada 89427. Connecticut, Maine, Massachusetts, New Shiprock, New Mexico 87420. Director, Phoenix Service Unit, Phoenix Hampshire, Rhode Island, and Vermont, Director, Oklahoma City Area Indian Health Indian Medical Center, 4212 North 16th Federal Archives and Records Center, Service, Five Corporation Plaza, 3625 NW Street, Phoenix, Arizona 85016. Frederick C. Murphy Federal Center, 380 56th Street, Oklahoma City, Oklahoma Director, Phoenix Service Unit, Salt River Trapelo Road, Waltham, Massachusetts 73112. Health Center, 10005 East Osborn Road, 02452–6399. Director, Claremore Service Unit, Claremore Scottsdale, Arizona 85256. Northeast Region, Federal Archives and Comprehensive Indian Health Facility, Director, San Carlos Service Unit, Bylas Records Center, 10 Conte Drive, Pittsfield, West Will Rogers Boulevard and Moore, Indian Health Center, P.O. Box 208, Bylas, Massachusetts 01201–8230. Claremore, Oklahoma 74017. Arizona 85550. Mid-Atlantic Region and Pennsylvania, Director, Clinton Service Unit, Clinton Indian Director, San Carlos Service Unit, San Carlos Federal Archives and Records Center, Hospital, Route 1, Box 3060, Clinton, Indian Hospital, P.O. Box 208, San Carlos, 14700 Townsend Road, Philadelphia, Oklahoma 73601–9303. Arizona 85550. Pennsylvania 19154–1096. Director, El Reno PHS Indian Health Clinic, Director, Unitah and Ouray Service Unit, Fort Alabama, Florida, Georgia, Kentucky, 1631A E. Highway 66, El Reno, Oklahoma Duchesne Indian Health Center, P.O. Box Mississippi, North Carolina, South 73036. 160, Ft. Duchesne, Utah 84026. Carolina, and Tennessee, Federal Archives
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49940 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
and Records Center, 1557 St. Joseph Reduction Act. The Department is payments from mortgage proceeds are Avenue, East Point, Georgia 30344–2593. soliciting public comments on the made for work actually completed in a Illinois, Indiana, Michigan, Minnesota, Ohio subject proposal. satisfactory manner. The certification and Wisconsin and U.S. Court Records for regarding prevailing wages is used by the mentioned States, Federal Archives DATES: Comments Due Date: October 24, and Records Center, 7358 South Pulaski 2005. the Multifamily Hub Centers to ensure Road, Chicago, Illinois 60629–5898. ADDRESSES: Interested persons are compliance with prevailing wage rates. Agency form numbers, if applicable: Michigan, Except U.S. Court Records, Federal invited to submit comments regarding HUD–92448. Records Center, 3150 Springboro Road, this proposal. Comments should refer to Estimation of the total numbers of Dayton, Ohio 45439–1883. the proposal by name and/or OMB Kansas, Iowa, Missouri and Nebraska, and hours needed to prepare the information Control Number and should be sent to: U.S. Court Records for the mentioned collection including number of Wayne Eddins, Reports Management States, Federal Archives and Records respondents, frequency of response, and Officer, Department of Housing and Center, 2312 East Bannister Road, Kansas hours of response: The number of Urban Development, 451 7th Street, City, Missouri 64131–3011. respondents is 1,300 generating 15,600 New Jersey, New York, Puerto Rico, and the SW., L’Enfant Plaza Building, Room responses annually, the estimated time U.S. Virgin Islands, and U.S. Court Records 8001, Washington, DC 20410 or needed to prepare each response is for the mentioned States and territories, [email protected]. 200 Space Center Drive, Lee’s Summit, approximately 6 hours, the frequency of Missouri 64064–1182. FOR FURTHER INFORMATION CONTACT: response is monthly, and the total Arkansas, Louisiana, Oklahoma and Texas, Michael McCullough, Director, Office of burden hours requested is 93,600. and U.S. Courts Records for the mentioned Multifamily Development, Department Status of the proposed information States, Federal Archives and Records of Housing and Urban Development, collection: This is an extension of a Center, P.O. Box 6216, Ft. Worth, Texas 451 7th Street SW., Washington, DC currently approved collection. 76115–0216. 20410, telephone (202) 708–1142 (this is Authority: The Paperwork Reduction Act Colorado, Wyoming, Utah, Montana, New not a toll free number) for copies of the Mexico, North Dakota, and South Dakota, of 1995, 44 U.S.C., Chapter 35, as amended. proposed forms and other available and U.S. Courts Records for the mentioned Dated: August 16, 2005. information. States, Federal Archives and Records Frank L. Davis, Center, P.O. Box 25307, Denver, Colorado SUPPLEMENTARY INFORMATION: The General Deputy Assistant Secretary for 80225–0307. Department is submitting the proposed Housing—Deputy Federal Housing Northern California Except Southern information collection to OMB for Commissioner. California, Hawaii, and Nevada Except Clark County, the Pacific Trust Territories, review, as required by the Paperwork [FR Doc. E5–4635 Filed 8–24–05; 8:45 am] and American Samoa, and U.S. Courts Reduction Act of 1995 (44 U.S.C. BILLING CODE 4210–27–P Records for the mentioned States and Chapter 35, as amended). territories, Federal Archives and Records This Notice is soliciting comments Center, 1000 Commodore Drive, San from members of the public and affected DEPARTMENT OF HOUSING AND Bruno, California 94066–2350. agencies concerning the proposed URBAN DEVELOPMENT Arizona, Southern California, and Clark collection of information to: (1) Evaluate County, Nevada, and U.S. Courts Records whether the proposed collection is [Docket No. FR–4975–N–27] for the mentioned States, Federal Archives necessary for the proper performance of and Records Center, 24000 Avila Road, 1st Notice of Proposed Information Floor, East Entrance, Laguna Niguel, the functions of the agency, including Collection: Comment Request; California 92677–3497. whether the information will have Application for Housing Assistance Washington, Oregon, Idaho and Alaska, and practical utility; (2) Evaluate the Payments; Special Claims Processing U.S. Courts Records for the mentioned accuracy of the agency’s estimate of the States, Federal Archives and Records burden of the proposed collection of AGENCY: Office of the Assistant Center, 6125 Sand Point Way NE, Seattle, information; (3) Enhance the quality, Secretary for Housing-Federal Housing Washington 98115–7999. utility, and clarity of the information to Commissioner, HUD. [FR Doc. 05–16890 Filed 8–24–05; 8:45 am] be collected; and (4) Minimize the ACTION: Notice. BILLING CODE 4165–16–P burden of the collection of information on those who are to respond; including SUMMARY: The proposed information the use of appropriate automated collection requirement described below collection techniques or other forms of will be submitted to the Office of DEPARTMENT OF HOUSING AND Management and Budget (OMB) for URBAN DEVELOPMENT information technology, e.g., permitting electronic submission of responses. review, as required by the Paperwork [Docket No. FR–4975–N–26] This Notice also lists the following Reduction Act. The Department is information: soliciting public comments on the Notice of Proposed Information Title of Proposal: Contractor’s subject proposal. Collection: Comment Request; Requisition Project Mortgages. DATES: Comments Due Date: October 24, Contractor’s Requisition Project OMB Control Number, if applicable: 2005. Mortgages 2502–0028. ADDRESSES: Interested persons are AGENCY: Office of the Assistant Description of the need for the invited to submit comments regarding Secretary for Housing-Federal Housing information and proposed use: This this proposal. Comments should refer to Commissioner, HUD. information is collected on form HUD– the proposal by name and/or OMB ACTION: Notice. 92448 from contractors and is used to Control Number and should be sent to: obtain program benefits, consisting of Wayne Eddins, Reports Management SUMMARY: The proposed information distribution of insured mortgage Officer, Department of Housing and collection requirement described below proceeds when construction costs are Urban Development, 451 7th Street, will be submitted to the Office of involved. The information regarding SW., L’Enfant Plaza Building, Room Management and Budget (OMB) for completed work items is used by the 8001, Washington, DC 20410 or review, as required by the Paperwork Multifamily Hub Centers to ensure that [email protected].
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49941
FOR FURTHER INFORMATION CONTACT: number of hours needed to prepare the FOR FURTHER INFORMATION CONTACT: To Lanier Hylton, Director, Office of information collection is 313,534; the request a copy of the information Housing Assistance and Contract number of respondents is 23,500 collection requirements, explanatory Administration Oversight, Department generating approximately 300,996 information, or related materials, of Housing and Urban Development, annual responses; the frequency of contact Hope Grey at the addresses 451 7th Street, SW., Washington, DC response is on occasion and monthly; above or by phone at (703) 358–2482. 20410, telephone (202) 708–2677 (this is and the estimated time needed to For information related to the grant not a toll free number) for copies of the prepare the response varies from 1 hour program, which is the subject of the proposed forms and other available to 2.66 hours. information collection approval, please information. Status of the proposed information visit our Web site at http:// collection: Revision of a currently SUPPLEMENTARY INFORMATION: birdhabitat.fws.gov. The approved collection. Department is submitting the proposed SUPPLEMENTARY INFORMATION: The OMB information collection to OMB for Authority: The Paperwork Reduction Act regulations at 5 CFR 1320, which review, as required by the Paperwork of 1995, 44 U.S.C., Chapter 35, as amended. implement provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Dated: August 18, 2005. Reduction Act of 1995 (44 U.S.C 3501 Chapter 35, as amended). Frank L. Davis, et seq.), require that interested members This Notice is soliciting comments General Deputy Assistant Secretary for of the public and affected agencies have from members of the public and affected Housing—Deputy Federal Housing an opportunity to comment on agencies concerning the proposed Commissioner. information collection and collection of information to: (1) Evaluate [FR Doc. E5–4636 Filed 8–24–05; 8:45 am] recordkeeping activities (see 5 CFR whether the proposed collection is BILLING CODE 4210–27–P 1320.8(d)). We have asked OMB to necessary for the proper performance of renew approval of the collection of the functions of the agency, including information for the NAWCA grants whether the information will have DEPARTMENT OF THE INTERIOR programs. The current OMB control practical utility; (2) Evaluate the number for this collection of accuracy of the agency’s estimate of the Fish and Wildlife Service information is 1018–0100, which burden of the proposed collection of expires on August 31, 2005. We are information; (3) Enhance the quality, Information Collection Renewal Sent to requesting the standard 3-year term of utility, and clarity of the information to the Office of Management and Budget approval for this information collection be collected; and (4) Minimize the (OMB) for Approval Under the activity. Federal agencies may not burden of the collection of information Paperwork Reduction Act; OMB conduct or sponsor and a person is not on those who are to respond; including Control No. 1018–0100; Information required to respond to a collection of the use of appropriate automated Collection in Support of Grant information unless it displays a collection techniques or other forms of Programs Authorized by the North currently valid OMB control number. information technology, e.g., permitting American Wetlands Conservation Act Following our submittal, OMB has up to (NAWCA) electronic submission of responses. 60 days to approve or disapprove our This Notice also lists the following AGENCY: Fish and Wildlife Service, information collection request; however, information: Interior. OMB may make its decision as early as Title of Proposal: Application for ACTION: Notice; request for comments. 30 days after submittal of our request. Housing Assistance Payments; Special Therefore, to ensure that your comments Claims Processing. SUMMARY: We (Fish and Wildlife receive consideration, send your OMB Control Number, if applicable: Service, Service) have sent a request to comments and/or suggestions to OMB 2502–182. OMB to renew the collection of by the date referenced in the DATES Description of the need for the information described below. We use section of this notice. information and proposed use: the information collected to conduct our We received one comment regarding Vouchers are submitted by owners/ NAWCA grant programs in the manner this notice. The commenter did not agents to HUD or their Contract prescribed by that Act, the Migratory address the necessity, clarity, or Administrators (CA)/Performance Based Bird Conservation Commission, and the accuracy of the information collection, Contract Administrators (PBCA) each North American Wetlands Conservation but stated that the North American month to receive assistance payments Council. We also use the information to Waterfowl Management Plan and the for the difference between the gross rent comply with Federal reporting Council, as constituted, are used to kill and the total tenant payment for all requirements for grants awarded under waterfowl, not save them. In addition, assisted tenants. In the instance of the program. the commenter petitions to reconstitute special claims, vouchers are submitted DATES: You must submit comments on the Council with different members and by owners/agents to HUD or their CA/ or before September 26, 2005. requests program materials. We have not PBCA to receive an amount of offset ADDRESSES: Send your comments and made any changes to our information unpaid rents, tenant damages, suggestions on this information collection as a result of the comment. vacancies, and/or debt service losses. collection renewal to the Desk Officer The North American Waterfowl Agency form numbers, if applicable: for the Department of the Interior at Management Plan (NAWMP), first HUD–52670; HUD–52670A, Part 1; OMB–OIRA at (202) 395–6566 (fax) or signed in 1986, is a tripartite agreement HUD–52670A, Part 2; HUD–52671A, [email protected] (e-mail). among Canada, Mexico, and the United HUD–52671B, HUD–52671C, HUD– Please provide a copy of your comments States to enhance, restore, and 52671D. to Hope Grey, Information Collection otherwise protect continental wetlands Estimation of the total numbers of Clearance Officer, Fish and Wildlife to benefit waterfowl and other wetlands- hours needed to prepare the information Service, MS 222–ARLSQ, 4401 North associated wildlife through partnerships collection including number of Fairfax Drive, Arlington, VA 22203 between and among the private and respondents, frequency of response, and (mail); (703) 358–2269 (fax); or public sectors. Because the 1986 hours of response: The estimated total [email protected] (e-mail). NAWMP did not carry with it a
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49942 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
mechanism to provide for broadly based reports and justifications, public and technical information required in the and sustained financial support for private requests for information, data Standard Grants program application. wetland conservation activities, provided to other programs for We invite your comments on: (1) Congress passed and the President databases on similar programs, Whether or not the collection of signed into law the NAWCA. The congressional inquiries, and reports information is necessary for the proper purpose of NAWCA, as amended, is to required by NAWCA. performance of the NAWCA grants promote, through partnerships, long- If we do not collect this information, programs, including whether or not in term conservation of North American we would have to eliminate the program the opinion of the respondent the wetland ecosystems and the waterfowl because it would not be possible to information has practical utility; (2) the and other migratory birds, fish, and determine eligibility and the relative accuracy of our estimate of the annual wildlife that depend upon such habitat. worth of the proposed projects or to Principal conservation actions meet our legal responsibilities under the hour burden of information requested; supported by NAWCA are acquisition, Act and regulations. Reducing the (3) ways to enhance the quality, utility enhancement, and restoration of frequency of collection would only and clarity of the information to be wetlands and wetlands-associated reduce the frequency of grant collected; and (4) ways to minimize the habitat. opportunities, as the information burden of the collection of information In addition to providing for a collected is unique to each project on respondents. The information continuing and stable funding base, proposal. Discontinuation of the collection in this program is part of a NAWCA establishes an administrative program is not a viable option. system of records covered by the body, the North American Wetlands Title of Collection: Information Privacy Act (5 U.S.C. 552(a)). Conservation Council, made up of a Collection in Support of Grant Programs Dated: August 3, 2005. State representative from each of the Authorized by the North American Hope Grey, four flyways, three representatives from Wetlands Conservation Act (NAWCA). wetlands conservation organizations, Information Collection Clearance Officer, OMB Control Number: 1018–0100. Fish and Wildlife Service. the Secretary of the Board of the Form Number(s): None. [FR Doc. 05–16942 Filed 8–24–05; 8:45 am] National Fish and Wildlife Foundation, Frequency of Collection: Occasional. and the Director of the Service. The The Small Grants program has one BILLING CODE 4310–55–P Council recommends funding of select project proposal period per year and the wetlands conservation project proposals Standard Grants program has two per to the Migratory Bird Conservation DEPARTMENT OF THE INTERIOR year. Annual reports are due 90 days Commission (MBCC). Competing for after the anniversary date of the grant grant funds involves applications from Bureau of Indian Affairs agreement. Final reports are due 90 days partnerships that describe in substantial after the end of the project period. The detail project locations, project Indian Gaming project period is 2 years. resources, future benefits, and other characteristics, to meet the standards Description of Respondents: AGENCY: Bureau of Indian Affairs, established by the Council and the Households and/or individuals; Interior. requirements of NAWCA. businesses and/or other for-profits organizations; educational ACTION: Notice of approved Tribal— Materials that describe the program State Compact. and assist applicants in formulating organizations; not-for-profit institutions; project proposals for Council Federal Government; and State, local SUMMARY: consideration are available on our Web and/or tribal governments. This notice publishes site at http://birdhabitat.fws.gov. Total Annual Burden Hours: 37,600. approval of the Tribal—State Compact Persons who do not have access to the We estimate 80 hours for each Small between the State of New Mexico and Web site may still obtain instructional Grant and 400 hours for each Standard the Pueblo of Pojoaque. materials by mail. There has been Grant. DATES: Effective Date: August 25, 2005. virtually no change in the scope and Number of Respondents: general nature of these instructions Approximately 150. We estimate 70 FOR FURTHER INFORMATION CONTACT: since the OMB first approved the proposals for the Small Grants program George T. Skibine, Director, Office of information collection in 1999. and 80 for the Standard Grants program. Indian Gaming Management, Office of Instructions assist applicants in Approximately half of the projects the Deputy Assistant Secretary—Policy formulating detailed project proposals submitted are funded. and Economic Development, for Council consideration. The We interviewed five previous and Washington, DC 20240, (202) 219–4066. instructional materials, including any current recipients of NAWCA grants hard or electronic copy and information with regard to three aspects of the grants SUPPLEMENTARY INFORMATION: Under or other instruments, are the basis for programs: the availability of the section 11 of the Indian Gaming this information collection request. information requested, the clarity of the Regulatory Act of 1988 (IGRA), Public Notices of funding availability, which instructions, and the annual burden Law 100–497, 25 U.S.C. 2710, the are updated regularly, are posted on the hours for preparing applications and Secretary of the Interior shall publish in Grants.gov Web site (http:// other materials, such as annual and final the Federal Register notice of the www.grants.gov) as well as in the reports for both the Small Grants and approved Tribal-State Compacts for the Catalog of Federal Domestic Assistance. the Standard Grants programs. All purpose of engaging in Class III gaming We use information collected under this respondents advised that the activities on Indian lands. This Compact program to respond to audits, program information regarding descriptions of authorizes the Pueblo of Pojoaque of planning and management, program both programs and application New Mexico to engage in certain Class evaluation, Government Performance instructions are readily available and III gaming activities on Indian lands. and Results Act reporting, Standard the clarity of the information/ This compact is identical to the other Form 424 (Application For Federal instructions for both programs is good, New Mexico compacts that were Assistance), grant agreements, budget even considering the level of detail and approved by the Department in 2001.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49943
Dated: August 16, 2005. 800–877–8330, 24 hours a day, seven business hours (9 a.m. to 4 p.m.), Michael D. Olsen, days a week, to contact Mr. Leaf. Monday through Friday. Acting Principal Deputy Assistant Secretary— John Leaf, FOR FURTHER INFORMATION CONTACT: Robert Giovanini, Mining Engineer, or Indian Affairs. Land Law Examiner, Branch of Adjudication [FR Doc. 05–16943 Filed 8–24–05; 8:45 am] II. Connie Schaff, Land Law Examiner, Branch of Solid Minerals (MT–921), BILLING CODE 4310–4N–P [FR Doc. 05–16869 Filed 8–24–05; 8:45 am] Bureau of Land Management, Montana BILLING CODE 4310–$$–P State Office, PO Box 36800, Billings, DEPARTMENT OF THE INTERIOR Montana 59107–6800, telephone (406) DEPARTMENT OF THE INTERIOR 896–5084 or (406) 896–5060, Bureau of Land Management respectively. Bureau of Land Management Edward L. Hughes, [AK964–1410–HY–P; F–14893–B, F–14893– [MT–921–03–1320–EL–P; MTM 94825] Acting Chief, Branch of Solid Minerals. C, F–14893–D; BSA–2] [FR Doc. 05–16872 Filed 8–24–05; 8:45 am] Notice of Invitation—Coal Exploration BILLING CODE 4310–$$–P Alaska Native Claims Selection License Application MTM 94825 AGENCY: AGENCY: Bureau of Land Management, Bureau of Land Management, DEPARTMENT OF THE INTERIOR DOI Interior. ACTION: Notice of invitation. ACTION: Notice of decision approving Bureau of Land Management lands for conveyance. SUMMARY: Members of the public are [ID–933–1430–ET; DK–G05–0002, IDI–08612, hereby invited to participate with et al.] SUMMARY: As required by 43 CFR Spring Creek Coal Company in a 2650.7(d), notice is hereby given that an program for the exploration of coal Public Land Order No. 7644; appealable decision approving lands for deposits owned by the United States of Revocation of 4 Bureau of Reclamation Orders and 2 Public Land Orders; conveyance pursuant to the Alaska America in the following-described Idaho Native Claims Settlement Act will be lands located in Big Horn County, issued to Mary’s Igloo Native Montana, encompassing 1917.50 acres: AGENCY: Bureau of Land Management, Corporation. The lands are located in T. 8 S., R. 39 E., P. M. M. Interior. Lot 2, U.S. Survey No. 604, Alaska, and Sec. 13: NW1⁄4, N1⁄2SW1⁄4, N1⁄2SW1⁄4SW1⁄4, ACTION: Public land order. T. 3 S., Rgs. 30, 31, and 32 W., Kateel E1⁄2SE1⁄4SW1⁄4SW1⁄4, 1 1 1 1 1 1 1 River Meridian; T. 4 S., R. 32 W., Kateel NW ⁄4SE ⁄4SW ⁄4SW ⁄4, SE ⁄4SW ⁄4, SE ⁄4 SUMMARY: This order revokes 4 Bureau Sec. 14: N1⁄2NE1⁄4SE1⁄4 River Meridian; and Ts. 3 and 4 S., R. of Reclamation Orders and 2 Public Sec. 15: W1⁄2SW1⁄4SE1⁄4, SE1⁄4SW1⁄4SE1⁄4 Land Orders in their entirety as they 33 W., Kateel River, Alaska, in the 1 Sec. 22: NE ⁄4 affect 6,785.75 acres of lands withdrawn vicinity of Mary’s Igloo Alaska, and 1 2 1 2 1 4 1 2 1 4 Sec. 23: S ⁄ N ⁄ NW ⁄ , S ⁄ NW ⁄ for the Minidoka Reclamation Project. contains 18,915.33 acres. Notice of the Sec. 24: NE1⁄4NW1⁄4 This order opens 2,767.04 acres of decision will also be published four Sec. 25: SW1⁄4SW1⁄4 1 public lands to all forms of times in the Nome Nugget. Sec. 26: S ⁄2 Sec. 27: S1⁄2NW1⁄4, S1⁄2 appropriation under the public land DATES: The time limits for filing an Sec. 35: N1⁄2 laws, and 4,018.71 acres of lands to appeal are: SUPPLEMENTARY INFORMATION: Any party such uses as may be authorized by law on National Forest System lands. This 1. Any party claiming a property electing to participate in this order also opens all of the lands to the interest which is adversely affected by exploration program shall notify, in mining laws. the decision shall have until September writing, both the State Director, Bureau EFFECTIVE DATE: September 26, 2005. 26, 2005 to file an appeal. of Land Management, PO Box 36800, Billings, Montana 59107–6800, and FOR FURTHER INFORMATION CONTACT: 2. Parties receiving service of the Spring Creek Coal Company, PO Box 67, Jackie Simmons, BLM Idaho State decision by certified mail shall have 30 Decker, Montana 59025. Such written Office, 1387 S. Vinnell Way, Boise, days from the date of receipt to file an notice must refer to serial number MTM Idaho 83709, 208–373–3867. appeal. 94825 and be received no later than SUPPLEMENTARY INFORMATION: Copies of Parties who do not file an appeal in September 26, 2005 or 10 calendar days the original withdrawal orders accordance with the requirements of 43 after the last publication of this Notice containing a legal description of the CFR part 4, subpart E, shall be deemed in the Sheridan Press newspaper, lands involved are available from the to have waived their rights. whichever is later. This Notice will be BLM Idaho State Office at the address published once a week for two (2) above. ADDRESSES: A copy of the decision may consecutive weeks in the Sheridan be obtained from: Bureau of Land Press, Sheridan, Wyoming. Order Management, Alaska State Office, 222 The proposed exploration program is By virtue of the authority vested in West Seventh Avenue, #13, Anchorage, fully-described, and will be conducted the Secretary of the Interior by Section Alaska 99513–7599. pursuant to an exploration plan to be 204 of the Federal Land Policy and approved by the Bureau of Land FOR FURTHER INFORMATION, CONTACT: Management Act of 1976, 43 U.S.C. Management. The exploration plan, as 1714 (2000), it is ordered as follows: John Leaf, by phone at (907) 271–3283, _ submitted by Spring Creek Coal 1. The following Bureau of or by e-mail at John [email protected]. Company, is available for public Reclamation Orders and Public Land Persons who use a telecommunication inspection at the Bureau of Land Orders, which withdrew a total of (a) device (TTD) may call the Federal Management, 5001 Southgate Drive, 2,767.04 acres of public lands, and (b) Information Relay Service (FIRS) at 1– Billings, Montana, during regular 4,018.71 acres of National Forest System
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49944 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
lands, for the Minidoka Reclamation DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR Project, are hereby revoked in their entirety: Bureau of Reclamation Orders Bureau of Land Management Bureau of Land Management dated September 6, 1956 (22 FR 2741), [AK964–1410–HY–P; AA–9206–A, SEA–3] January 25, 1957 (22 FR 1968), June 21, [MT–090–1430–ET; MTM 89170] 1957 (23 FR 8361), and September 5, Alaska Lands Conveyance 1957 (23 FR 2130), and Public Land Public Land Order No. 7643; Extension Order No’s. 2170 (25 FR 7497), and 3083 of Public Land Order No. 7464; AGENCY: Bureau of Land Management, (28 FR 5051). Montana Interior. ACTION: Notice of decision. 2. At 9 a.m. on September 26, 2005, AGENCY: Bureau of Land Management, the lands referenced as (a) in Paragraph Interior. SUMMARY: As required by 43 CFR 1 will be opened to all forms of 2650.7(d), notice is hereby given that an appropriation under the public land ACTION: Public land order. appealable decision directing laws generally, subject to valid existing conveyance of lands pursuant to the rights, the provisions of existing SUMMARY: This order extends Public Alaska National Interest Lands withdrawals, other segregations of Land Order No. 7464 for an additional Conservation Act will be issued to Shee record, and the requirements of 5-year period. This extension is Atika, Incorporated, for certain lands in applicable law. All valid applications necessary to continue to protect T. 47 S., R. 66 E., Copper River received at or prior to 9 a.m. on reclamation of the Zortman-Landusky Meridian, located in the vicinity of September 26, 2005 shall be considered mining area. Sitka, Alaska, containing approximately 20 acres. Notice of the decision will also as simultaneously filed at that time. EFFECTIVE DATE: October 5, 2005. Those received thereafter shall be be published four times in the considered in the order of filing. FOR FURTHER INFORMATION CONTACT: Ketchikan Daily News. DATES: 3. At 9 a.m. on September 26, 2005, Tami Lorenz, BLM Montana State The time limits for filing an the lands referenced as (b) in Paragraph Office, 406–896–5053 or Sandy Ward, appeal are: 1. Any party claiming a property 1 will be opened to such forms of BLM Montana State Office, 5001 interest which is adversely affected by disposition as may be authorized by law Southgate Drive, P.O. Box 36800, the decision shall have until September on National Forest System lands, subject Billings, Montana, 59107–6800, 406– 896–5052. 26, 2005 to file an appeal. to valid existing rights, the provisions of 2. Parties receiving service of the existing withdrawals, other segregations SUPPLEMENTARY INFORMATION: A copy of decision by certified mail shall have 30 of record, and the requirements of the original withdrawal order, Public days from the date of receipt to file an applicable law. Land Order No. 7464, is available from appeal. 4. At 9 a.m. on September 26, 2005, the BLM Montana State Office at the Parties who do not file an appeal in all of the lands referenced in Paragraph address stated above. accordance with the requirements of 43 CFR part 4, subpart E, shall be deemed 1 will be opened to location and entry Order under the United States mining laws, to have waived their rights. subject to valid existing rights, the By virtue of the authority vested in ADDRESSES: A copy of the decision may provisions of existing withdrawals, the Secretary of the Interior by Section be obtained from: Bureau of Land other segregations of record, and the 204 of the Federal Land Policy and Management, Alaska State Office, 222 requirements of applicable law. Management Act of 1976, 43 U.S.C. West Seventh Avenue, #13, Anchorage, Appropriation of any of the lands 1714 (2000), it is ordered as follows: Alaska 99513–7599. identified in this order under the 1. Public Land Order No. 7464 (65 FR FOR FURTHER INFORMATION, CONTACT: general mining laws prior to the date 59463, October 5, 2000), which Eileen Ford, by phone at 907–271–5715, _ and time of restoration is unauthorized. withdrew 3,530.62 acres of public land or by e-mail at eileen [email protected]. Any such attempted appropriation, from surface entry and mining to protect Persons who use a telecommunication including attempted adverse possession the Zortman-Landusky Mine device (TTD) may call the Federal Information Relay Service (FIRS) at 1– is governed by State law where not in Reclamation Site, is hereby extended for 800–877–8330, 24 hours a day, seven conflict with Federal law. The Bureau of an additional 5-year period. Land Management will not intervene in days a week, to contact Ms. Ford. 2. Public Land Order 7464 will expire disputes between rival locators over on October 4, 2010, unless, as a result Eileen Ford, possessory rights since Congress has of a review conducted prior to the Land Law Examiner, Branch of Adjudication provided for such determinations in expiration date pursuant to Section II. local courts. 204(f) of the Federal Land Policy and [FR Doc. 05–16868 Filed 8–24–05; 8:45 am] Dated: August 11, 2005. Management Act of 1976, 43 U.S.C. BILLING CODE 4310–$$–P Rebecca W. Watson, 1714(f) (2000), the Secretary determines Assistant Secretary—Land and Minerals that the withdrawal shall be extended. DEPARTMENT OF THE INTERIOR Management. Authority: 43 CFR 2310.4. [FR Doc. 05–16873 Filed 8–24–05; 8:45 am] National Park Service Dated: August 10, 2005. BILLING CODE 4310–GG–P P. Lynn Scarlett, The Transportation Plan/ Draft Assistant Secretary—Policy, Management Environmental Impact Statement, and Budget. Grand Teton National Park, WY [FR Doc. 05–16871 Filed 8–24–05; 8:45 am] AGENCY: National Park Service, BILLING CODE 4310–DN–P Department of the Interior.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49945
ACTION: This notice informs the public Dated: July 26, 2005. Dated: July 19, 2005. that the comment period for the Draft Kate Cannon, Bruce Jacobson, Environmental Impact Statement for the Acting Deputy Regional Director, Superintendent, Boston Harbor Islands NRA. Transportation Plan, Grand Teton Intermountain Region, National Park Service. [FR Doc. 05–16877 Filed 8–24–05; 8:45 am] National Park, Wyoming, is extended. [FR Doc. 05–16874 Filed 8–24–05; 8:45 am] BILLING CODE 4312–52–M BILLING CODE 4312–52–P SUMMARY: The National Park Service published a Notice of Availability on DEPARTMENT OF THE INTERIOR June 6, 2005 (70 FR 107) for the draft DEPARTMENT OF THE INTERIOR Environmental Impact Statement for the National Park Service Transportation Plan, Grand Teton National Park Service National Park, Wyoming. The public Cape Cod National Seashore, South comment period was to expire on Boston Harbor Islands Advisory Wellfleet, MA; Cape Cod National August 1, 2005. This notice extends the Council; Notice of Meeting Seashore Advisory Commission Two public comment period until August 25, Hundred Fifty-Fourth Notice of Meeting 2005. Notice is hereby given in accordance with the Federal Advisory Committee Notice is hereby given in accordance DATES: Comments on the DEIS must be Act (Pub. L. 92–463) that the Boston with the Federal Advisory Committee received by August 25, 2005. Harbor Islands Advisory Council will Act (Pub. L. 92–463, 86 Stat. 770, 5 ADDRESSES: Information will be meet on Wednesday, September 7, 2005. U.S.C. App 1, Section 10), that a available for public review and The meeting will convene at 6 p.m. at meeting of the Cape Cod National comment at the Park Headquarters the New England Aquarium Conference Seashore Advisory Commission will be Visitor Center in Moose, Wyoming and Center, Central Wharf, Boston, MA. held on September 26, 2005. The Commission was reestablished the Reference Desk of the Teton County The Advisory Council was appointed pursuant to Public Law 87–126 as Library in Jackson, Wyoming. It will by the Director of National Park Service amended by Public Law 105–280. The also be available online at both http:// pursuant to Public Law 104–333. The 28 purpose of the Commission is to consult parkplanning.nps.gov and http:// members represent business, with the Secretary of the Interior, or her www.nps.gov/grte/plans/planning.htm. educational/cultural, community and designee, with respect to matters environmental entities; municipalities FOR FURTHER INFORMATION CONTACT: relating to the development of Cape Cod surrounding Boston Harbor; Boston Mary Gibson Scott, Superintendent, National Seashore, and with respect to Harbor advocates; and Native American Grand Teton National Park, PO Drawer carrying out the provisions of sections 4 interests. The purpose of the Council is 170, Moose, Wyoming, 83012–0170, and 5 of the Act establishing the to advise and make recommendations to (370) 739–3410. Seashore. SUPPLEMENTARY INFORMATION: If you the Boston Harbor Islands Partnership The Commission members will meet wish to comment, you may submit your with respect to the development and at 1 p.m. in the meeting room at comments by any one of several implementation of a management plan Headquarters, Marconi Station, methods. You may mail comments to and the operations of the Boston Harbor Wellfleet, Massachusetts for the regular Superintendent Office, P.O. Drawer 170, Islands national park area. business meeting to discuss the Moose, Wyoming 83012–0170, The Agenda for this meeting is as following: Attention: Transportation Plan. You follows: 1. Adoption of Agenda may also comment via the e-mail to 1. Call to Order, Introductions of 2. Approval of Minutes of Previous http://parkplanning.nps.gov, choose Advisory Council members present Meeting (June 20, 2005) ‘‘Grand Teton National Park’’ or ‘‘Plan/ 3. Reports of Officers 2. Review and approval of minutes of Documents Open for Comment’’ and 4. Reports of Subcommittees the June meeting then click ‘‘Comment on Document’’. 5. Superintendent’s Report Finally, you may hand-deliver 3. Youth Program Report Salt Pond Visitor Center Update comments to the Grand Teton Visitor 4. Peddocks Island-Fort Andrews Highlands Center Update Center, Moose, Wyoming. Our practice Preservation and Adaptive Reuse Update on Dune Shack Report is to make comments, including names Project ORV’s and home addresses of respondents, 5. Review of Summer Season East Harbor/Pilgrim Lake available for public review during Herring River Restoration Project business hours. Individual respondents 6. Report from the NPS Wilderness Areas may request that we withhold their 7. Public Comment Wind Turbines/Cell Towers home address from the record, which 8. Next Meetings News from Washington we will honor to the extent allowable by 6. Old Business 9. Adjourn law. There also may be circumstances in 7. New Business which we would withhold from the The meeting is open to the public. 8. Date and agenda for next meeting record a respondent’s identity, as Further information concerning Council 9. Public comment and allowable by law. If you wish us to meetings may be obtained from the 10. Adjournment withhold your name and/or address, Superintendent, Boston Harbor Islands. The meeting is open to the public. It you must state this prominently at the Interested persons may make oral/ is expected that 15 persons will be able beginning of your comment. We will written presentations to the Council or to attend the meeting in addition to make all submissions from file written statements. Such requests Commission members. organizations or businesses, and from should be made at least seven days prior Interested persons may make oral/ individuals identifying themselves as to the meeting to: Superintendent, written presentations to the Commission representatives or officials of Boston Harbor Islands NRA, 408 during the business meeting or file organizations or businesses, available Atlantic Avenue, Boston, MA 02110, written statements. Such requests for public inspection in their entirety. telephone (617) 223–8667. should be made to the park
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49946 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
superintendent at least seven days prior may contact Kevin Brandt, Dated: August 4, 2005. to the meeting. Further information Superintendent, C&O Canal National Joanne M. Hanley, concerning the meeting may be obtained Historic Park, 1850 Dual Highway, Suite Superintendent, Flight 93 National Memorial. from the Superintendent, Cape Cod 100, Hagerstown, Maryland 21740. [FR Doc. 05–16875 Filed 8–24–05; 8:45 am] National Seashore, 99 Marconi Site Minutes of the meeting will be BILLING CODE 4310–70–M Road, Wellfleet, MA 02667. available for public inspection six Dated: July 26, 2005. weeks after the meeting at park Sue Moynihan, headquarters, Hagerstown, Maryland. DEPARTMENT OF THE INTERIOR Acting Superintendent. Dated: July 21, 2005. National Park Service [FR Doc. 05–16876 Filed 8–24–05; 8:45 am] Robert Hartman, BILLING CODE 4312–52–P Superintendent, Chesapeake and Ohio Canal Notice of Inventory Completion: Kitsap National Historical Park. County Coroner’s Office, Port Orchard, [FR Doc. 05–16878 Filed 8–24–05; 8:45 am] WA DEPARTMENT OF THE INTERIOR BILLING CODE 4312–52–M AGENCY: National Park Service, Interior. National Park Service ACTION: Notice. DEPARTMENT OF THE INTERIOR Chesapeake and Ohio Canal National Notice is here given in accordance Historical Park Advisory Commission; National Park Service with the Native American Graves Notice of Public Meeting Protection and Repatriation Act Flight 93 National Memorial Advisory Notice is hereby given in accordance (NAGPRA), 25 U.S.C. 3003, of the Commission with the Federal Advisory Committee completion of an inventory of human remains in the possession of the Kitsap Act that a meeting of the Chesapeake AGENCY: National Park Service. and Ohio Canal National Historical Park County Coroner’s Office, Port Orchard, Advisory Commission will be held at ACTION: Notice of September 7, 2005 WA. The human remains are believed to 9:30 a.m. on Friday, September 9, 2005, meeting. have been removed from Bremerton, Rockwood Manor, Brooke Hall, Kitsap County, WA. This notice is published as part of the Potomac, Maryland SUMMARY: This notice sets forth the date The Commission was established by of the September 7, 2005 meeting of the National Park Service’s administrative Public Law 91–664 to meet and consult Flight 93 Advisory Commission. responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations with the Secretary of the Interior on DATES: The public meeting of the in this notice are the sole responsibility general policies and specific matters Advisory Commission will be held on related to the administration and of the museum, institution, or Federal September 7, 2005 from 11 a.m. to 12 agency that has control of the Native development of the Chesapeake and noon. Ohio Canal National Historical Park. American human remains. The National Location: The meeting will be held in Park Service is not responsible for the The members of the Commission are the Hall of Flags at the U.S. Chamber of as follows: determinations in this notice. Commerce Building, 1615 H Street, A detailed assessment of the human Mrs. Sheila Rabb Weidenfeld, Chairman NW., Washington, DC 20062–2000. remains was made by the Kitsap County Mr. Charles J. Weir Agenda: The September 7, 2005 Coroner’s Office professional staff in Mr. Barry A. Passett Mr. Terry W. Hepburn meeting will consist of: consultation with representatives of the Ms. Elise B. Heinz (1) Opening of Meeting and Pledge of Suquamish Indian Tribe of the Port Ms. JoAnn M. Spevacek Allegiance. Madison Reservation, Washington. Mrs. Mary E. Woodward (2) Review and Approval of Minutes Prior to 1998, human remains Mrs. Donna Printz from July 25, 2005. representing a minimum of two individuals were removed from an Mrs. Ferial S. Bishop (3) Reports from the Flight 93 Ms. Nancy C. Long unknown site in Bremerton, Kitsap Memorial Task Force design Oversight County, WA. There is limited Mrs. Jo Reynolds Committee on the Recommendation of a Dr. James H. Gilford information regarding the circumstances Final Design for the permanent Ms. Sue Ann Sullivan surrounding the removal of the human Brother James Kirkpatrick memorial for Flight 93. remains. The human remains are Topics that will be presented during (4) Old Business/New Business. believed to have been removed from the meeting include: (5) Public Comments. private residential property in 1. Update on park planning and (6) Closing Remarks. Bremerton, however, research of archived records reveals no design projects FOR FURTHER INFORMATION CONTACT: 2. Update on major construction/ documentation detailing the event. The Joanne M. Hanley, Superintendent, development projects property owner allegedly brought the Flight 93 National Memorial, 109 West 3. Update on partnership projects human remains to the Kitsap County 4. Review draft Environmental Main Street, Somerset, PA 15501, (814) Coroner’s Office where they have since Assessment for Georgetown Boathouse 443–4557. been housed. No known individuals proposal SUPPLEMENTARY INFORMATION: The were identified. No associated funerary The meeting will be open to the meeting will be open to the public. Any objects are present. public. Any member of the public may member of the public may file with the The human remains have been file with the Commission a written Commission a written statement determined to be Native American statement concerning the matters to be concerning agenda items. The statement based on morphology. The geographical discussed. Persons wishing further should be addressed to the Flight 93 area from which the remains are information concerning this meeting, or Advisory Commission, 109 West Main presumed to have been removed who wish to submit written Statements, Street, Somerset, PA 15501. indicates affiliation with the Suquamish
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49947
Indian Tribe of the Port Madison Natural Science has determined that the notifying the Chitimacha Tribe of Reservation, Washington. Historical Mississippi Department of Archives and Louisiana that this notice has been evidence presented during consultation History, Historic Preservation Division, published. supports this determination. Jackson, MS, has legal control of the Dated: July 22, 2005. Officials of the Kitsap County human remains and associated funerary Sherry Hutt, Coroner’s Office have determined that, objects from the Fatherland site pursuant to 25 U.S.C. 3001 (9–10), the (22AD001), Adams County, MS. Manager, National NAGPRA Program. human remains listed above represent This notice is published as part of the [FR Doc. 05–16884 Filed 8–24–05; 8:45 am] the physical remains of a minimum of National Park Service’s administrative BILLING CODE 4312–50–S two individuals of Native American responsibilities under NAGPRA, 25 ancestry. Officials of the Kitsap County U.S.C. 3003 (d) (3). The determinations Coroner’s Office also have determined in this notice are the sole responsibility DEPARTMENT OF THE INTERIOR of the museum, institution, or Federal that, pursuant to 25 U.S.C. 3001 (2), National Park Service there is a relationship of shared group agency that has control of the Native identity that can be reasonably traced American human remains and Notice of Intent to Repatriate Cultural between the Native American human associated funerary objects. The Items: Mississippi Department of remains and the Suquamish Indian National Park Service is not responsible Archives and History, Historic Tribe of the Port Madison Reservation, for the determinations in this notice. Preservation Division, Jackson, MS Washington. The December 13, 2000, notice Representatives of any other Indian identified the Louisiana State University AGENCY: National Park Service, Interior. Museum of Natural Science as having tribe that believes itself to be culturally ACTION: Notice. affiliated with the human remains possession of human remains and should contact Louise Hall, Chief associated funerary objects from the Notice is here given in accordance Deputy Coroner, Kitsap County Fatherland site (22AD001), Adams with the Native American Graves Coroner’s Office, 714 Division Street County, MS. Following publication of Protection and Repatriation Act MS–17, Port Orchard, WA 98366, the notice, Mississippi Department of (NAGPRA), 25 U.S.C. 3005, of the intent telephone (360) 337–5603, before Archives and History, Historic to repatriate cultural items in the September 26, 2005. Repatriation of the Preservation Division submitted possession of the Mississippi human remains to the Suquamish additional documentation regarding Department of Archives and History, Indian Tribe of the Port Madison control of the aforementioned items to Historic Preservation Division, Jackson, Reservation, Washington may proceed the Louisiana State University Museum MS, that meet the definition of after that date if no additional claimants of Natural Science. Upon evaluation of ‘‘unassociated funerary objects’’ under come forward. the new documentation, Louisiana State 25 U.S.C. 3001. University Museum of Natural Science Kitsap County Coroner’s Office is This notice is published as part of the reconsidered its control of the human responsible for notifying the Suquamish National Park Service’s administrative remains and associated funerary objects Indian Tribe of the Port Madison responsibilities under NAGPRA, 25 from the Fatherland site (22AD001) and Reservation, Washington that this notice U.S.C. 3003 (d)(3). The determinations transferred possession to the Mississippi has been published. in this notice are the sole responsibility Department of Archives and History, of the museum, institution, or Federal Dated: July 22, 2005. Historic Preservation Division in March Sherry Hutt, 2005. The human remains and agency that has control of the cultural Manager, National NAGPRA Program. associated funerary objects are now in items. The National Park Service is not [FR Doc. 05–16879 Filed 8–24–05; 8:45 am] the possession and control of the responsible for the determinations in this notice. BILLING CODE 4312–50–S Mississippi Department of Archives and History, Historic Preservation Division. An assessment of the cultural items The Mississippi Department of was made by the Mississippi DEPARTMENT OF THE INTERIOR Archives and History, Historic Department of Archives and History, Preservation Division, as the museum in Historic Preservation Division National Park Service control of the human remains and professional staff in consultation with associated funerary objects, is representatives of the Chickasaw Notice of Inventory Completion: responsible for determining cultural Nation, Oklahoma. Louisiana State University Museum of affiliation of the human remains and In the summer of 1937, one cultural Natural Science, Baton Rouge, LA; associated funerary objects from the item was removed from the McCullough Correction Fatherland site (22AD001). The site (MLe11), Lee County, MS, along a AGENCY: National Park Service, Interior. Mississippi Department of Archives and ridgetop south of Kings Creek, by ACTION: Notice; correction. History, Historic Preservation Division Moreau Chambers, an archeologist with will consult and notify the proper the Mississippi Department of Archives Notice is here given in accordance groups once cultural affiliation is and History, Historic Preservation with the Native American Graves determined. Division as part of an ongoing survey Protection and Repatriation Act Representatives of any tribal and legally authorized excavation. The (NAGPRA), 43 CFR 10.8 (f), that, upon government who wish to comment on excavation and survey were undertaken publication of this notice in the Federal this notice should address their to study Chickasaw culture in Lee Register, the Louisiana State University comments to Pamela D. Edwards, County, MS, and to find the location of Museum of Natural Science, Baton Mississippi Department of Archives and the Battle of Ackia, as part of the Rouge, LA, rescinds the notice of History, Historic Preservation Division, process for establishing Ackia inventory completion published in the P.O. Box 571, Jackson, MS 39205, Battleground National Monument. The Federal Register of December 13, 2000 telephone (601) 576–6940. one cultural item, a shell gorget, was (FR Doc 00–31659, 77908) because the Louisiana State University Museum of found in association with Native Louisiana State University Museum of Natural Science is responsible for American human remains.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49948 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
The McCullough site (MLe11) was both a ‘‘white’’ town (or a peace town, The Mississippi Department of determined by Mr. Chambers not to be as opposed to a ‘‘red’’ war town) and Archives and History, Historic the location of the Battle of Ackia, but ‘‘mother’’ town from which other towns Preservation Division is responsible for a multi-component site consisting of a emerged (Hudson 1976:238–239: Nairne notifying the Chickasaw Nation, possibly late prehistoric component, an [1708] 1988:38). Oklahoma that this notice has been early Chickasaw component, and a later Both Tchichatala and Falatchao are published. historic Chickasaw component based on recognized in historical documents as Dated: July 26, 2005. the type of prehistoric and historic being occupied by the Chickasaw. Sherry Hutt, artifacts found, ethnohistorical maps, However, because of the fluid nature of Manager, National NAGPRA Program. local tradition, and archeological Chickasaw village occupation, it is findings (Atkinson 1985; B. Lieb, difficult to identify the specific [FR Doc. 05–16880 Filed 8–24–05; 8:45 am] personal communication 2005; Stubbs boundaries of historic Chickasaw BILLING CODE 4312–50–S 1982). The ethnohistorical maps show villages. Therefore, based on the this area to be inhabited by historic archeological evidence that the site was DEPARTMENT OF THE INTERIOR Chickasaw. Allotment records also show part of a major Chickasaw village and at that Ah Thla Tubby, a Chickasaw, was that time both villages were in the area, National Park Service allotted this section of land in 1836 the Alston-Wilson site is most probably (Stubbs 1982). part of either the village of Tchichatala Notice of Intent to Repatriate a Cultural In the summer of 1937, Mr. Chambers or Falatchao (Atkinson 1985, 2004; Brad Item: Neville Public Museum of Brown removed cultural items from the Alston- Lieb, personal communication 2004; County, Green Bay, WI Wilson site (MLe14), Lee County, MS. Cook et al. 1980; Jennings 1941; Johnson The 550 cultural items are 1 shell ear et al. 2004). AGENCY: National Park Service, Interior. plug; 6 grog-tempered potsherds; 1 Based on historical evidence that Lee ACTION: Notice. gunspall; 1 clear, cut-faceted, crystal County, MS, where both the Alston- bead; 455 blue seed beads (Type IIA4); Wilson site (MLe14) and the Notice is here given in accordance 15 large, wound, glass necklace beads McCullough site (MLe11) are located, with the Native American Graves with a heavy patina (Type WIA6); 29 was occupied by the Chickasaw until Protection and Repatriation Act wound, mold-faceted, clear, glass their removal to Oklahoma from 1837 (NAGPRA), 25 U.S.C. 3005, of the intent necklace beads (Type WIIA2); 12 blue, until 1850, both sites are probably to repatriate a cultural item in the faceted glass necklace beads (Type Chickasaw. The Chickasaws are possession of the Neville Public WIIA3); 1 wound, mold-faceted, amber represented by the present-day Museum of Brown County, Green Bay, glass necklace bead (Type WIIA4); 9 Chickasaw Nation, Oklahoma. WI, that meets the definition of ‘‘objects drawn and wound, black and white Officials of the Mississippi of cultural patrimony’’ under 25 U.S.C. (‘‘rattlesnake’’) beads (Type WIIIA5); 1 Department of Archives and History, 3001. drawn, spiral-striped, black and white This notice is published as part of the bead (Type WIIIA3); 18 tubular, faceted, Historic Preservation Division have determined that, pursuant to 25 U.S.C. National Park Service’s administrative translucent beads (Type WIIC1); and 1 responsibilities under NAGPRA, 25 translucent, oval-shaped, faceted 3001 (3)(B), the 551 cultural items described above are reasonably believed U.S.C. 3003 (d)(3). The determinations necklace bead (Type WIC1). The 550 in this notice are the sole responsibility cultural items were found in association to have been placed with or near individual human remains at the time of of the museum, institution, or Federal with Native American human remains. agency that has control of the cultural The human remains associated with death or later as part of the death rite item. The National Park Service is not these cultural items from the or ceremony and are believed, by a responsible for the determinations in McCullough and Alston-Wilson sites preponderance of the evidence, to have were stored in an off-site repository in been removed from a specific burial site this notice. Jackson, MS. In the 1940s, the of a Native American individual. The cultural item is a wampum belt, repository burned and the human Officials of the Mississippi Department 30 inches long and 2 inches wide, remains were destroyed and are no of Archives and History, Historic composed of white beads strung on longer in the possession of the Preservation Division also have hemp with four intersecting rows of Mississippi Department of Archives and determined that, pursuant to 25 U.S.C. black beads. History, Historic Preservation Division. 3001 (2), there is a relationship of Neville Public Museum of Brown shared group identity that can be County professional staff consulted with The Alston-Wilson site, now better reasonably traced between the the representatives of the Oneida Tribe known as MLe14 because of later unassociated funerary objects and the of Indians of Wisconsin and Stockbridge excavations by Jesse Jennings in 1939 on Chickasaw Nation, Oklahoma. Munsee Community, Wisconsin. behalf of the National Park Service, was Representatives of any other Indian In 1923, the cultural item was excavated one month after the tribe that believes itself to be culturally purchased by Arthur Neville, Director of McCullough site and has a major affiliated with the 551 unassociated the Green Bay City Museum. The Green occupation dating to A.D.1730–1750. funerary objects should contact Pamela Bay City Museum became the Neville Archeological evidence found at the D. Edwards, Mississippi Department of Public Museum of Brown County in Alston-Wilson site suggests that this site Archives and History, Historic 1927. According to museum was part of a major historic Chickasaw Preservation Division, P. O. Box 571, documentation, the wampum belt was village. In the 1730s, there were two Jackson, MS 39205, telephone (601) purchased from Phoebe Quinney for major villages in the vicinity of the 576–6940, before September 26, 2005. $10.00. Mrs. Quinney was the widow of Alston-Wilson site that were occupied Repatriation of the unassociated Osceola Quinney, Sachem of the by the Chickasaw: Tchichatala and funerary objects to the Chickasaw Stockbridge Munsee Community, Falatchao. Tchichatala was a major Nation, Oklahoma may proceed after Wisconsin. Mr. Quinney had inherited Chickasaw village. Falatchao was a that date if no additional claimants the title and wampum belt from his ‘‘white mother town’’ meaning it was come forward. father, John Quinney.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49949
The Neville Public Museum of Brown DEPARTMENT OF THE INTERIOR A.D. 1500). Copper and brass kettles County has determined that the were European trade items, and wampum belt is an object of cultural National Park Service therefore support a post-contact patrimony that has ongoing historical, temporal context for the burial. In Notice of Inventory Completion: addition, museum documentation traditional, or cultural importance Peabody Museum of Archaeology and central to the Stockbridge Munsee describes the human remains as Ethnology, Harvard University, ‘‘Narragansett.’’ Such a specific Community, Wisconsin. Cultural Cambridge, MA affiliation with the Stockbridge Munsee attribution suggests that the burial dates Community, Wisconsin, and the AGENCY: National Park Service, Interior. to the Historic period. The burial context indicates that the burial was of museum’s determination that the ACTION: Notice. a Native American. Oral tradition and wampum belt is an object of cultural This notice rescinds the Federal historical documentation indicate that patrimony, are based on museum Register Notice of Intent to Repatriate West Warwick, RI, is within the documentation and oral history, as well Cultural Items of December 10, 2003, FR aboriginal and historic homeland of the as consultation evidence presented by Doc. 03–30567, page 68950. This notice Narragansett people during the Contact representatives of the Stockbridge changes the cultural items described in period. The present-day tribe Munsee Community, Wisconsin that the previously published notice from representing the Narragansett people is indicates that no individual had or has unassociated funerary objects to the Narragansett Indian Tribe of Rhode the right to alienate a wampum belt. associated funerary objects and adds the Island. Officials of the Neville Public human remains representing a Officials of the Peabody Museum of Museum of Brown County have minimum of one individual. Archaeology and Ethnology have determined that, pursuant to 25 U.S.C. Notice is here given in accordance determined that, pursuant to 25 U.S.C. 3001 (3)(D), the one cultural item with the Native American Graves 3001 (9-10), the human remains listed Protection and Repatriation Act described above has ongoing historical, above represent the physical remains of (NAGPRA), 25 U.S.C. 3003, of the one individual of Native American traditional, or cultural importance completion of an inventory of human ancestry. Officials of the Peabody central to the Native American group or remains and associated funerary objects Museum of Archaeology and Ethnology culture itself, rather than property in the possession of the Peabody also have determined that, pursuant to owned by an individual. Officials of the Museum of Archaeology and Ethnology, 25 U.S.C. 3001 (3)(A), the two objects Neville Public Museum of Brown Harvard University, Cambridge, MA. listed above are reasonably believed to County also have determined that, The human remains and associated have been placed with or near pursuant to 25 U.S.C. 3001 (2), there is funerary objects were removed from individual human remains at the time of a relationship of shared group identity West Warwick, Kent County, RI. death or later as part of the death rite that can be reasonably traced between This notice is published as part of the or ceremony. Lastly, officials of the the object of cultural patrimony and the National Park Service’s administrative Peabody Museum of Archaeology and Stockbridge Munsee Community, responsibilities under NAGPRA, 25 Ethnology have determined that, Wisconsin. U.S.C. 3003 (d)(3). The determinations pursuant to 25 U.S.C. 3001 (2), there is in this notice are the sole responsibility Representatives of any other Indian a relationship of shared group identity of the museum, institution, or Federal tribe that believes itself to be culturally that can be reasonably traced between agency that has control of the Native the Native American human remains affiliated with the one object of cultural American human remains and patrimony should contact Eugene and associated funerary objects and the associated funerary objects. The Narragansett Indian Tribe of Rhode Umberger, Director, Neville Public National Park Service is not responsible Museum of Brown County, 210 Museum Island. for the determinations in this notice. Representatives of any other Indian Place, Green Bay, WI 54303, telephone A detailed assessment of the human tribe that believes itself to be culturally (920) 448–4460, before September 26, remains was made by Peabody Museum affiliated with the human remains and 2005. Repatriation of the object of of Archaeology and Ethnology associated funerary objects should cultural patrimony to the Stockbridge professional staff in consultation with contact Patricia Capone, Repatriation Munsee Community, Wisconsin may representatives of the Narragansett Coordinator, Peabody Museum of proceed after that date if no additional Indian Tribe of Rhode Island. Archaeology and Ethnology, Harvard claimants come forward. In 1957, human remains representing University, 11 Divinity Avenue, a minimum of one individual were Neville Public Museum of Brown Cambridge, MA 02138, telephone (617) removed from West Warwick, Kent County is responsible for notifying the 496–3702, before September 26, 2005. County, RI, by Dave Straight. The Repatriation of the human remains and Oneida Tribe of Indians of Wisconsin human remains were donated to the and Stockbridge Munsee Community, associated funerary objects to the Peabody Museum of Archaeology and Narragansett Indian Tribe of Rhode Wisconsin that this notice has been Ethnology by the Massachusetts published. Island may proceed after that date if no Archaeological Society through Maurice additional claimants come forward. Dated: July 26, 2005. Robbins later that same year. The The Peabody Museum of Archaeology Sherry Hutt, human remains were found during the and Ethnology is responsible for Manager, National NAGPRA Program. Peabody Museum of Archaeology and notifying the Narragansett Indian Tribe Ethnology’s inventory process after the [FR Doc. 05–16882 Filed 8–24–05; 8:45 am] of Rhode Island that this notice has been publication of the Notice of Intent to published. BILLING CODE 4312–50–S Repatriate Cultural Items on December 10, 2003. The two associated funerary Dated: July 22, 2005 objects are one bag of bark fragments Sherry Hutt, and one box of brass kettle fragments. Manager, National NAGPRA Program. This interment most likely dates to [FR Doc. 05–16881 Filed 8–24–05; 8:45 am] the post-contact period or later (post BILLING CODE 4312–50–S
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49950 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
DEPARTMENT OF THE INTERIOR associated funerary object from site 45 affiliated with the human remains and BN 81 and one associated funerary associated funerary objects should National Park Service object from site 35 MW 10. In light of contact Mr. Bert Rader, NAGPRA the findings from these examinations, Coordinator, Environmental Resources Notice of Inventory Completion: the original notice of inventory is Branch, U.S. Department of Defense, University of Oregon Museum of amended to include additions to the U.S. Army Corps of Engineers, Portland Natural History, Eugene, OR, and U.S. minimum number of individuals and District, P.O. Box 2946, Portland, OR Department of Defense, Army Corps of associated funerary objects from 45 BN 97208–2946, telephone (503) 808–4766, Engineers, Portland District, Portland, 81 site, and an addition of one before September 26, 2005. Repatriation OR; Correction associated funerary object for site 35 of the human remains and associated AGENCY: National Park Service, Interior. MW 10 (Tom’s Camp). funerary objects to the Confederated The October 8, 2003 notice is Tribes of the Umatilla Indian ACTION: Notice; correction. corrected by substituting the following Reservation, Oregon may proceed after Notice is here given in accordance paragraphs: that date if no additional claimants The following paragraph is with the Native American Graves come forward. substituted for paragraph 11: Protection and Repatriation Act In 1963, human remains representing The Army Corp of Engineers, Portland (NAGPRA), 25 U.S.C. 3003, of the a minimum of two individuals were completion of an inventory of human District is responsible for notifying the removed from site 45 BN 81 on Blalock Confederated Tribes of the Umatilla remains and associated funerary objects Island, Benton County, WA, in the for which the University of Oregon Indian Reservation, Oregon that this Columbia River within the John Day notice has been published. Museum of Natural History, Eugene, Dam project area. No known individuals OR, and the U.S. Department of Defense, were identified. The 72 associated Dated: July 26, 2005 Army Corps of Engineers, Portland funerary objects are 11 glass beads, 14 Sherry Hutt, District, Portland, OR, have joint shell beads, 1 piece of copper, 1 copper Manager, National NAGPRA Program. responsibility. The human remains and button, 1 large maul, 3 points, 1 graver, [FR Doc. 05–16883 Filed 8–24–05; 8:45 am] associated funerary objects were 1 knife, 3 scrapers, 2 chert fragments, 23 BILLING CODE 4312–50–S removed from archeological sites on flakes, 12 identified bones and 1 piece U.S. Army Corps of Engineers land of charcoal. located within the John Day Dam project The following paragraph is DEPARTMENT OF JUSTICE area in Morrow County, OR, and Benton substituted for paragraph 13: County, WA. In 1967, human remains representing Notice of Lodging of Consent Decree This notice is published as part of the a minimum of two individuals were Under the Clean Air Act National Park Service’s administrative removed from the Tom’s Camp site (35 responsibilities under NAGPRA, 25 MW 10), 3 miles west of the former In accordance with Departmental U.S.C. 3003 (d)(3). The determinations town of Boardman, Morrow County, OR, Policy, 28 U.S.C. 50.7, notice is hereby in this notice are the sole responsibility on the south bank of the Columbia given that on August 18, 2005, a of the museum, institution, or Federal River, in the John Day Dam project area. proposed Consent Decree in United agency that has control of the Native No known individuals were identified. States v. Cosmed Group, Inc., Civil American human remains and The one associated funerary object is a Action No. 05353ML, was lodged with associated funerary objects. The dentalium shell bead. the United States District Court for the National Park Service is not responsible The following paragraph is District of Rhode Island. for the determinations in this notice. substituted for paragraph 16: In this action the United States, on This notice corrects the number of Officials of the Army Corps of behalf of the United States human remains and associated funerary Engineers, Portland District have Environmental Protection Agency objects reported in a notice of inventory determined that, pursuant to 25 U.S.C. (‘‘EPA’’), filed a complaint against completion published in the Federal 3001(9–10), the human remains Cosmed Group, Inc. (‘‘Cosmed’’) Register on October 8, 2003 (FR Doc. described above represent the physical alleging various violations of the Clean 03–25535, pages 58139–5140). remains of 21 individuals of Native Air Act and the Illinois State In June 2004, representatives of the American ancestry. Officials of the Implementation Plan, concerning cultural resources staff of the Army Corps of Engineers, Portland Cosmed’s current or former facilities in Confederated Tribes of the Umatilla District also have determined that, Coventry, RI, South Plainfield, NJ, Reservation, Oregon examined the pursuant to 25 U.S.C. 3001(3)(A), the Baltimore, MD, Waukegan, IL, Grand faunal collections from sites 45 BN 64 954 objects described above are Prairie, TX, and San Diego, CA. Under (Eye site), 45 BN 77, 45 BN 81, and 35 reasonably believed to have been placed the terms of the proposed settlement, MW 10 (Tom’s Camp site), for human with or near individual human remains Cosmed will pay a civil penalty of remains and associated funerary objects at the time of death or later as part of $500,000 million and fund that might have been misidentified. The the death rite or ceremony. Lastly, Supplemental Environmental Projects Collections Director and Physical officials of the Army Corps of Engineers, providing environmental and public Anthropologist for the University of Portland District have determined that, health benefits in and around Camden, Oregon Museum of Natural History pursuant to 25 U.S.C. 3001 (2), there is NJ, Lake County, IL, Dallas, TX, and San examined the materials from the faunal a relationship of shared group identity Diego, CA at a cost of $1 million. collections that the Confederated Tribes that can be reasonably traced between The Department of Justice will receive of the Umatilla Reservation, Oregon the Native American human remains for a period of thirty (30) days from the identified for re-examination. The and associated funerary objects and the date of this publication comments examination by the Collections Director Confederated Tribes of the Umatilla relating to the Consent Decree. and Physical Anthropologist identified Indian Reservation, Oregon. Comments should be addressed to the human remains representing one Representatives of any other Indian Assistant Attorney General, additional individual and one tribe that believes itself to be culturally Environment and Natural Resources
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49951
Division, P.O. Box 7611, U.S. (estimated value to U.S.—$225,000); United States District Court for the Department of Justice, Washington, DC and (4) Riverside Organics—$14,000. District of Utah, Case No. 2:05CV00650 20044–7611, and should refer to United Additionally, Riverside Products, the BD (D. Utah). States v. Cosmed Group, Inc., D.J. Ref. newly formed successor to Riverside In this action, the United States 90–5–2–1–08115. Organics, shall submit a hazardous sought the recovery of costs incurred The Consent Decree may be examined substance management plan to U.S. EPA and to be incurred by the United States at the Office of the United States for approval and shall comply with such in response to releases or threatened Attorney, District of Rhode Island, 50 management plan so long as it continues releases of hazardous substances at and Kennedy Plaza, 8th Floor, Providence, operations at the Site. from the Eureka Mills NPL Site located Rhode Island 02903, and at the United The Department of Justice will receive in Eureka, Utah (the ‘‘Site’’). The United States Environmental Protection for a period of thirty (30) days from the States alleged that the Union Pacific Agency, Region 1 (New England date of this publication comments Railroad Company was liable under Region), One Congress Street, Boston, relating to the Consent Decree. CERCLA Sections 106 and 107(a)(1) and Massachusetts 02114. During the public Comments should be addressed to the (2), 42 U.S.C. 906 and 9607(a)(1) and (2), comment period, the Consent Decree Assistant Attorney General, as a past owner of a portion of the Site may also be examined on the following Environment and Natural Resources at the time of disposal and as a present Department of Justice Web site, http:// Division, P.O. Box 7611, U.S. owner of a portion of the Site upon www.usdoj.gov/enrd/open.html. A copy Department of Justice, Washington, DC which hazardous substances have been of the Consent Decree may also be 20044–7611, and shall refer to United released, for those response costs set obtained by mail from the Consent States v. Standard Detroit Paint Co., et forth in CERCLA Section 107(a)(4)(A)– Decree Library, P.O. Box 7611, U.S. al., D.J. Ref. 90–11–3–08271. (D), 42 U.S.C. 9607(a)(4)(A)–(D). Department of Justice, Washington, DC The Consent Decree may be examined The settlement between the United 20044–7611 or by faxing or e-mailing a at the Office of the United States States and the Union Pacific Railroad request to Tonia Fleetwood Attorney, 211 W. Fort Street, Suite 2001, Company provides that the Union ([email protected]), fax no. Detroit, MI and at U.S. EPA Region 5, Pacific Railroad Company will (202) 514–0097, phone confirmation 77 West Jackson Blvd., Chicago, IL. implement the remedy for the Upper number (202) 514–1547. In requesting a During the public comment period, the Eureka Gulch portion of the Site copy from the Consent Decree Library, Consent Decree, may also be examined selected by the Environmental please enclose a check in the amount of on the following Department of Justice Protection Agency (‘‘EPA’’) for which $23.75 (25 cents per page reproduction Web site. http://www.usdoj.gov/enrd/ the United States has alleged that the cost) payable to the U.S. Treasury. open.html. A copy of the Consent Union Pacific Railroad Company was Decree may also be obtained by mail responsible under CERCLA. The Union Ronald Gluck, from the Consent Decree Library, P.O. Pacific Railroad Company will also Assistant Section Chief, Environmental Box 7611, U.S. Department of Justice, undertake certain quarry operations on- Enforcement Section, Environment and Washington, DC 20044–7611 or by Site to produce rock and other borrow Natural Resources Division. faxing or e-mailing a request to Tonia material needed by EPA for the 2005 [FR Doc. 05–16853 Filed 8–24–05; 8:45 am] Fleetwood ([email protected]), and 2006 construction season. EPA BILLING CODE 4410–15–M fax no. (202) 514–0097, phone estimates that the value of the work to confirmation number (202) 514–1547. In be done by Union Pacific Railroad Company to be excess of $4.3 million. DEPARTMENT OF JUSTICE requesting a copy from the Consent Decree Library, please enclose a check In addition, the Union Pacific Railroad Notice of Lodging of Consent Decree in the amount of $5.25 (25 cents per Company will pay $270,690.00 into a Under the Comprehensive page reproduction cost) payable to the special account to compensate EPA for Environmental Response, U.S. Treasury. anticipated future response costs. Compensation, and Liability Act The Department of Justice will receive William D. Brighton, for a period of thirty (30) days from the Under 28 CFR 50.7, notice is hereby Assistant Section Chief, Environmental date of this publication comments given that on August 8, 2005, a Enforcement Section, Environment and relating to the Consent Decree. proposed Consent Decree in United Natural Resources Division. Comments should be addressed to the States v. Standard Detroit Paint Co., et [FR Doc. 05–16850 Filed 8–24–05; 8:45 am] Assistant Attorney General, al., Civil Action No. 04–71442 was BILLING CODE 4410–15–M Environment and Natural Resources lodged with the United States District Division, P.O. Box 7611, U.S. Court for the Eastern District of Department of Justice, Washington, DC Michigan. DEPARTMENT OF JUSTICE 20044–7611, and should refer to United In this action the United States sought Notice of Lodging of Consent Decree States v. Union Pacific Railroad reimbursement of response costs Under the Comprehensive Company, DJ#90–11–3–07993/4. incurred for response actions taken at or Environmental Response, The Consent Decree may be examined in connection with the release or Compensation, and Liability Act of at U.S. EPA Region 8, 999 18th Street, threatened release of hazardous 1980 Suite 500, Denver, Colorado, 80202. substances at the Standard Detroit Paint During the public comment period, the Co. Site in Detroit, Michigan (‘‘the Notice is hereby given that on August Consent Decree, may also be examined Site’’). The Consent Decree resolves the 2, 2005 a proposed Consent Decree in on the following Department of Justice United States’ claims against the United States v. Union Pacific Railroad Web site, http://www.usdoj.gov/enrd/ defendants on an inability to pay basis. Company, an action under Sections 107 open.html. A copy of the Consent The defendants will pay the following and 113 of the comprehensive Decree may also be obtained by mail amounts: (1) Bruce Gooel—$10,000; (2) Environmental Response, from the Consent Decree Library, P.O. SDPC, Inc.—$40,000; (3) Standard Compensation, and Liability Act of 1980 Box 7611, U.S. Department of Justice, Detroit Realty Co.—50% of proceeds (‘‘CERCLA’’), as amended, 42 U.S.C. Washington, DC 20044–7611 or by from transfer of all real property 9607 and 9613, was lodged with the faxing or e-mailing a request to Tonia
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49952 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
Fleetwood ([email protected]), NUCLEAR REGULATORY health and minimize danger to life or fax no. (202) 514–0097, phone COMMISSION property. confirmation number (202) 514–1547. In A copy of the final supporting requesting a copy from the Consent Agency Information Collection statement may be viewed free of charge Decree Library, please enclose a check Activities: Submission for the Office of at the NRC Public Document Room, One in the amount of $18.75 for the Decree Management and Budget (OMB) White Flint North, 11555 Rockville (excluding appendices), $33.75 for the Review; Comment Request Pike, Room O–1 F23, Rockville, MD 20852. OMB clearance requests are Decree with attachments payable to the AGENCY: U.S. Nuclear Regulatory available at the NRC worldwide web United States Treasury. Commission (NRC). site: http://www.nrc.gov/public-involve/ Robert Brook, ACTION: Notice of the OMB review of doc-comment/omb/index.html. The Assistant Chief, Environmental Enforcement information collection and solicitation document will be available on the NRC Section, Environment and Natural Resources of public comment. home page site for 60 days after the Division. SUMMARY: signature date of this notice. [FR Doc. 05–16852 Filed 8–24–05; 8:45 am] The NRC has recently submitted to OMB for review the Comments and questions should be BILLING CODE 4410–15–M following proposal for the collection of directed to the OMB reviewer listed information under the provisions of the below by September 26, 2005. Comments received after this date will DEPARTMENT OF JUSTICE Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby be considered if it is practical to do so, informs potential respondents that an but assurance of consideration cannot Notice of Settlement Pursuant to be given to comments received after this Section 122(h) of the Comprehensive agency may not conduct or sponsor, and that a person is not required to respond date. Environmental Response, John Asalone, Office of Information Compensation and Liability Act to, a collection of information unless it displays a current valid OMB control and Regulatory Affairs (3150–0016), number. NEOB–10202, Office of Management Notice is hereby given that an and Budget, Washington, DC 20503. agreement between the Department of 1. Type of submission, new, revision, or extension: Extension. Comments can also be e-mailed to the Interior, National Park Service and [email protected] or the Washington Gas Light Company has 2. The title of the information collection: 10 CFR Part 33—Specific submitted by telephone at (202) 395– been approved, subject to public 4650. comment, by the Department of Justice Domestic Licenses of Broad Scope for Byproduct Material. The NRC Clearance Officer is Brenda pursuant to Section 122(h) of the Jo Shelton, 301–415–7233. Comprehensive Environmental 3. The form number if applicable: Not Response, Compensation and Liability applicable. Dated at Rockville, Maryland, this 18th day of August, 2005. Act, 42 U.S.C. 9601 et seq. The 4. How often the collection is settlement provides for recovery of required: There is a one-time submittal For the Nuclear Regulatory Commission. $285,000 in costs incurred by the Park of information to receive a license. Once Brenda Jo Shelton, Service in response to contamination on a specific license has been issued, there NRC Clearance Officer, Office of Information a portion of the National Capitol Parks- is a 10-year resubmittal of the Services. East, located beside the Anacostia River information for renewal of the license. [FR Doc. E5–4648 Filed 8–24–05; 8:45 am] 5. Who will be required or asked to in Washington, DC. BILLING CODE 7590–01–P report: All applicants requesting a For a period of thirty (30) days from license of broad scope for byproduct the date of this publication, comments material and all current licensees NUCLEAR REGULATORY relating to the proposed settlement will requesting renewal of a broad scope COMMISSION be received. Such comments should be license. addressed to Shawn P. Mulligan, 6. An estimate of the number of [Docket No. 50–346] National Park Service, 1050 Walnut responses: All of the information Firstenergy Nuclear Operating Street, Suite 220, Boulder, Colorado collections in Part 33 are captured Company, Davis-Besse Nuclear Power 80302, (303) 415–9014, or via e-mail at under OMB clearance number 3150– Station, Unit 1; Notice of Withdrawal of [email protected] and should 0120 for NRC Form 313. Application for Amendment to Facility refer to the NPS Washington Gas Light 7. The estimated number of annual Operating License Site. respondents: See item 6, above. A copy of the proposed settlement 8. An estimate of the number of hours The U.S. Nuclear Regulatory agreement may be obtained from, or needed annually to complete the Commission (the Commission) has reviewed at: National Capital Parks-East requirement or request: See item 6 granted the request of FirstEnergy Headquarters, 1900 Anacostia Drive, above. Nuclear Operating Company (the SE., Washington, DC 20020, (202) 690– 9. An indication of whether Section licensee) to withdraw its August 25, 5185. In requesting a copy, please 3507(d), Public Law 104–13 applies: Not 2003, application for proposed enclose a check in the amount of $2.75 applicable. amendment to Facility Operating (25 cents per page reproduction cost) 10. Abstract: 10 CFR Part 33 contains License No. NPF–3; for the Davis-Besse payable to the U.S. Treasury. mandatory requirements for the Nuclear Power Station, Unit No. 1, issuance of a broad scope license located in Ottawa County, Ohio. Robert Brook, authorizing the use of byproduct The proposed amendment would Assistant Chief, Environmental Enforcement material. The subparts cover specific have revised the Technical Section, Environment and Natural Resources requirements for obtaining a license of Specifications (TSs) pertaining to the Division. broad scope. These requirements Steam and Feedwater Rupture Control [FR Doc. 05–16851 Filed 8–24–05; 8:45 am] include equipment, facilities, personnel, System (SFRCS) instrumentation BILLING CODE 4410–15–M and procedures adequate to protect setpoints and surveillance intervals.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49953
Specifically, the proposed amendment NUCLEAR REGULATORY licensees of current operating reactors,1 would have clearly identified the COMMISSION who are unaffected by this proposed appropriate actions to be taken if an revision. However, licensees of current SFRCS instrumentation channel’s Draft Regulatory Guide: Issuance, operating reactors may voluntarily output logic becomes inoperable; Availability convert their entire accident monitoring relocated the SFRCS instrumentation The U.S. Nuclear Regulatory program to the criteria in this proposed trip setpoints from the TSs to the Commission (NRC) has issued for public revision. The NRC staff is soliciting comments Updated Safety Analysis Report; and comment a draft revision to an existing on Draft Regulatory Guide DG–1128, decreased the SFRCS instrument guide in the agency’s Regulatory Guide and comments may be accompanied by channel functional test frequency from Series. This series has been developed relevant information or supporting data. to describe and make available to the monthly to quarterly and made Please mention DG–1128 in the subject public such information as methods that associated changes to the trip setpoint line of your comments. Comments on are acceptable to the NRC staff for allowable values. this draft regulatory guide submitted in implementing specific parts of the The Commission had previously writing or in electronic form will be NRC’s regulations, techniques that the made available to the public in their issued a Notice of Consideration of staff uses in evaluating specific entirety through the NRC’s Agencywide Issuance of Amendment published in problems or postulated accidents, and Documents Access and Management the Federal Register on September 30, data that the staff needs in its review of System (ADAMS). Personal information 2003 (68 FR 56343). However, by letter applications for permits and licenses. dated August 9, 2005, the licensee The draft Revision 4 of Regulatory will not be removed from your withdrew the proposed change. Guide 1.97, entitled ‘‘Criteria for comments. You may submit comments Accident Monitoring Instrumentation by any of the following methods. For further details with respect to this Mail comments to: Rules and for Nuclear Power Plants,’’ is action, see the application for Directives Branch, Office of amendment dated August 25, 2003 temporarily identified by its task number, DG–1128, which should be Administration, U.S. Nuclear Regulatory (Agencywide Documents Access and Commission, Washington, DC 20555– Management System (ADAMS) mentioned in all related correspondence. Like its predecessors, 0001. Accession No. ML032410076), as Email comments to: this proposed revision describes a supplemented by letter dated June 4, [email protected]. You may also submit method that the NRC staff considers comments via the NRC’s rulemaking 2004 (ADAMS Accession No. acceptable for use in complying with Web site at http://ruleforum.llnl.gov. ML041610286), and the licensee’s letter the agency’s regulations with respect to Address questions about our rulemaking dated August 9, 2005 (ADAMS satisfying criteria for accident Accession No. ML052230259), which monitoring instrumentation in nuclear Web site to Carol A. Gallagher (301) withdrew the application for license power plants. Specifically, the method 415–5905; e-mail [email protected]. Hand-deliver comments to: Rules and amendment. Documents may be described in this regulatory guide Directives Branch, Office of examined, and/or copied for a fee, at the relates to General Design Criteria 13, 19, Administration, U.S. Nuclear Regulatory NRC’s Public Document Room (PDR), and 64, as set forth in Appendix A to Commission, 11555 Rockville Pike, located at One White Flint North, Public Title 10, Part 50, of the Code of Federal Rockville, Maryland 20852, between File Area 01 F21, 11555 Rockville Pike Regulations (10 CFR Part 50), ‘‘Domestic 7:30 a.m. and 4:15 p.m. on Federal (first floor), Rockville, Maryland. Licensing of Production and Utilization Facilities.’’ workdays. Publicly available records will be Fax comments to: Rules and accessible electronically from the This proposed revision of Regulatory Guide 1.97 represents an ongoing Directives Branch, Office of ADAMS Public Electronic Reading Administration, U.S. Nuclear Regulatory Room on the internet at the NRC Web evolution in the nuclear industry’s thinking and approaches with regard to Commission at (301) 415–5144. site, http://www.nrc.gov/reading-rm/ Requests for technical information accident monitoring systems for the adams/html. Persons who do not have about Draft Regulatory Guide DG–1128 Nation’s nuclear power plants. access to ADAMS or who encounter may be directed to George M. Tartal at Specifically, this revision endorses (301) 415–0016 or by email to problems in accessing the documents (with certain clarifying regulatory located in ADAMS, should contact the positions specified in Section C of Draft [email protected]. Comments would be most helpful if NRC PDR Reference staff by telephone Regulatory Guide DG–1128) the received by October 14, 2005. at 1–800–397–4209, or 301–415–4737 or ‘‘Criteria for Accident Monitoring Comments received after that date will by email to [email protected]. Instrumentation for Nuclear Power be considered if it is practical to do so, Generating Stations,’’ which the Dated at Rockville, Maryland, this 18th day but the NRC is able to ensure Institute of Electrical and Electronics of August 2005. consideration only for comments Engineers (IEEE) promulgated as IEEE For the Nuclear Regulatory Commission. received on or before this date. Std. 497–2002. William A. Macon, Jr., This revised regulatory guide is Although a time limit is given, Project Manager, Section 2, Project intended for licensees of new nuclear comments and suggestions in Directorate III, Division of Licensing Project power plants.1 Previous revisions of this connection with items for inclusion in Management, Office of Nuclear Reactor regulatory guide remain in effect for guides currently being developed or Regulation. improvements in all published guides [FR Doc. E5–4646 Filed 8–24–05; 8:45 am] 1 The terms ‘‘new nuclear power plant’’ and ‘‘new are encouraged at any time. BILLING CODE 7590–01–P plant’’ refer to any nuclear power plant for which Electronic copies of the draft the licensee obtained an operating license after the regulatory guide are available through NRC issued Revision 4 of Regulatory Guide 1.97. the NRC’s public Web site under Draft The terms ‘‘current operating reactor’’ and ‘‘current plant’’ refer to any nuclear plant for which the Regulatory Guides in the Regulatory licensee obtained an operating license before the Guides document collection of the NRC issued Revision 4 of Regulatory Guide 1.97. NRC’s Electronic Reading Room at
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49954 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
http://www.nrc.gov/reading-rm/doc- 12(d) of the Securities Exchange Act of please use only one method. The collections/. Electronic copies are also 1934 (‘‘Act’’) 1 and Rule 12d2–2(d) Commission will post all comments on available in the NRC’s Agencywide thereunder,2 to withdraw its common the Commission’s Internet Web site Documents Access and Management stock, $.001 par value (‘‘Security’’), from (http://www.sec.gov/rules/delist.shtml). System (ADAMS) at http:// listing and registration on the American Comments are also available for public www.nrc.gov/reading-rm/adams.html, Stock Exchange LLC (‘‘Amex’’). inspection and copying in the under Accession #ML052150210. Note, On March 23, 2005, the Board of Commission’s Public Reference Room. however, that the NRC has temporarily Directors (‘‘Board’’) of the Issuer All comments received will be posted limited public access to ADAMS so that approved a resolution to withdraw the without change; we do not edit personal the agency can complete security Security from listing and registration on identifying information from reviews of publicly available documents Amex and to list the Security on the submissions. You should submit only and remove potentially sensitive Nasdaq National Market (‘‘Nasdaq’’). information that you wish to make information. Please check the NRC’s The Board stated that the Issuer’s available publicly. Web site for updates concerning the Investor Relations department had The Commission, based on the resumption of public access to ADAMS. received a very significant amount of information submitted to it, will issue In addition, regulatory guides are feedback from investors who would an order granting the application after available for inspection at the NRC’s prefer the Security be traded on Nasdaq the date mentioned above, unless the Public Document Room (PDR), which is rather than Amex. The Issuer stated that Commission determines to order a located at 11555 Rockville Pike, the last day of trading on Amex was hearing on the matter. Rockville, Maryland; the PDR’s mailing August 1, 2005. For the Commission, by the Division of address is USNRC PDR, Washington, DC The Issuer stated that it has met the Market Regulation, pursuant to delegated 20555–0001. The PDR can also be requirements of Amex’s rules governing authority.5 reached by telephone at (301) 415–4737 an issuer’s voluntary withdrawal of a Jonathan G. Katz, or (800) 397–4205, by fax at (301) 415– security from listing and registration by Secretary. 3548, and by e-mail to [email protected]. complying with all the applicable laws [FR Doc. E5–4651 Filed 8–24–05; 8:45 am] Requests for single copies of draft or in effect in Delaware, in which it is BILLING CODE 8010–01–P final guides (which may be reproduced) incorporated. or for placement on an automatic The Issuer’s application relates solely distribution list for single copies of to the withdrawal of the Security from SECURITIES AND EXCHANGE future draft guides in specific divisions listing on Amex and from registration COMMISSION under Section 12(b) of the Act,3 and should be made in writing to the U.S. [File No. 1–03427] Nuclear Regulatory Commission, shall not affect its obligation to be Washington, DC 20555–0001, Attention: registered under Section 12(g) of the Issuer Delisting; Notice of Application Reproduction and Distribution Services Act.4 of Hilton Hotels Corporation To Section; by e-mail to Any interested person may, on or Withdraw Its Common Stock, $2.50 Par [email protected]; or by fax to before September 9, 2005, comment on Value, From Listing and Registration (301) 415–2289. Telephone requests the facts bearing upon whether the on the Pacific Exchange, Inc. cannot be accommodated. application has been made in Regulatory guides are not accordance with the rules of Amex, and August 19, 2005. copyrighted, and Commission approval what terms, if any, should be imposed On August 3, 2005, Hilton Hotels is not required to reproduce them. (5 by the Commission for the protection of Corporation, a Delaware corporation U.S.C. 552(a)) investors. All comment letters may be (‘‘Issuer’’), filed an application with the Securities and Exchange Commission Dated at Rockville, Maryland, this 15th day submitted by either of the following of August, 2005. methods: (‘‘Commission’’), pursuant to Section For the Nuclear Regulatory Commission. 12(d) of the Securities Exchange Act of Electronic Comments 1934 (‘‘Act’’) 1 and Rule 12d2–2(d) Richard J. Barrett, • Use the Commission’s Internet thereunder,2 to withdraw its common Director, Division of Engineering Technology, comment form (http://www.sec.gov/ stock, $2.50 par value (‘‘Security’’), from Office of Nuclear Regulatory Research. rules/delist.shtml); or listing and registration on the Pacific [FR Doc. E5–4647 Filed 8–24–05; 8:45 am] • Send an e-mail to rule- Exchange, Inc. (‘‘PCX’’). BILLING CODE 7590–01–P [email protected]. Please include the The Board of Directors (‘‘Board’’) of File Number 1–32255 or; the Issuer approved resolutions on May 26, 2005 to withdraw the Security from Paper Comments SECURITIES AND EXCHANGE listing on PCX. The Issuer stated that COMMISSION • Send paper comments in triplicate the following reasons factored into the [File No. 1–32255] to Jonathan G. Katz, Secretary, Board’s decision to withdraw the Securities and Exchange Commission, Security from PCX: (i) The Security is Issuer Delisting; Notice of Application 100 F Street, NE., Washington, DC currently traded on the New York Stock of GuruNet Corporation To Withdraw 20549–9303. Exchange, Inc. (‘‘NYSE’’), the Issuer’s Its Common Stock, $.001 Par Value, All submissions should refer to File principal listing exchange; (ii) PCX has From Listing and Registration on the Number 1–32255. This file number adopted corporate governance and American Stock Exchange LLC should be included on the subject line disclosure policies and requirements if e-mail is used. To help us process and that are different from the policies and August 19, 2005. review your comments more efficiently, requirements adopted by NYSE; and (iii) On July 27, 2005, GuruNet the elimination of duplicate corporate Corporation, a Delaware corporation 1 15 U.S.C. 78l(d). (‘‘Issuer’’), filed an application with the 2 17 CFR 240.12d2–2(d). 5 17 CFR 200.30–3(a)(1). Securities and Exchange Commission 3 15 U.S.C. 78l(b). 1 15 U.S.C. 78l(d). (‘‘Commission’’), pursuant to Section 4 15 U.S.C. 78l(g). 2 17 CFR 240.12d2–2(d).
VerDate jul<14>2003 16:50 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49955
government disclosure policies and For the Commission, by the Division of Holdings seeks an order granting it an requirements of national securities Market Regulation, pursuant to delegated exemption under Section 3(a)(1) of the 4 exchanges applicable to the Issuer. authority. Act. Jonathan G. Katz, The Issuer stated in its application Holdings is a Colorado corporation, Secretary. currently claiming exemption from that it has complied with applicable registration under the Act by Rule 2. rules of PCX Rule 5.4(b) by complying [FR Doc. E5–4652 Filed 8–24–05; 8:45 a.m.] Holdings’ direct wholly owned with all applicable laws in effect in the BILLING CODE 8010–01–P subsidiary, Colorado Natural Gas, Inc. State of Delaware, the state in which the (‘‘CNG’’), a Colorado Corporation, is a Issuer is incorporated, and by providing SECURITIES AND EXCHANGE gas public utility serving approximately PCX with the required documents COMMISSION 6,300 retail customers in Colorado. CNG governing the withdrawal of securities [Release No. 35–28017] is regulated by the Colorado Public from listing and registration on PCX. Utilities Commission. As of December The Issuer’s application relates solely to Filings Under the Public Utility Holding 31, 2004, CNG had 1,950,432 feet of gas the withdrawal of the Securities from Company Act of 1935, as Amended main lines and 2,779,770 feet of service listing on PCX and shall not affect its (‘‘Act’’) lines, located in the Colorado counties continued listing on NYSE or its of Park, Jefferson, Clear Creek, Teller, obligation to be registered under Section August 19, 2005. Gilpin and Pueblo. CNG sells no gas (or 12(b) of the Act.3 Notice is hereby given that the electricity) outside Colorado. Any interested person may, on or following filing(s) has/have been made As of and for the year ended before September 9, 2005 comment on with the Commission pursuant to December 31, 2004, Holdings’ the facts bearing upon whether the provisions of the Act and rules consolidated gross operating revenues, application has been made in promulgated under the Act. All net income and net assets were accordance with the rules of PCX, and interested persons are referred to the approximately $5,204,464, $596,678 and what terms, if any, should be imposed application(s) and/or declaration(s) for $42,062,036, respectively. For the same by the Commission for the protection of complete statements of the proposed period, CNG’s gross operating revenues, investors. All comment letters may be transaction(s) summarized below. The net operating revenues, net income and submitted by either of the following application(s) and/or declaration(s) and net assets were approximately methods: any amendment(s) is/are available for $4,390,757, $2,185,894, $558,403 and public inspection through the $39,437,935, respectively. Electronic Comments Commission’s Branch of Public Holdings also is engaged in certain non-utility businesses. Its wholly owned • Reference. Send an e-mail to rule- Interested persons wishing to subsidiary, Colorado’s Best Heating and [email protected]. Please include the comment or request a hearing on the Appliances, LLC, is a Colorado limited File Number 1–03427 or; application(s) and/or declaration(s) liability company engaged in the Paper Comments should submit their views in writing by conversion of propane appliances to use September 13, 2005, to the Secretary, natural gas fuel. Wolf Creek Energy, • Send paper comments in triplicate Securities and Exchange Commission, LLC, a Colorado limited liability to Jonathan G. Katz, Secretary, 100 F Street, NE., Washington, DC company and a wholly owned direct Securities and Exchange Commission, 20549–9303, and serve a copy on the subsidiary of Holdings, is engaged in the 100 F Street, NE., Washington, DC relevant applicant(s) and/or declarant(s) brokerage and sale of commodity gas to 20549–9303. at the address(es) specified below. Proof an industrial customer in Colorado. All submissions should refer to File of service (by affidavit or, in the case of Wolf Creek Energy does not own Number 1–03427. This file number an attorney at law, by certificate) should facilities for the distribution of gas for should be included on the subject line be filed with the request. Any request sale. MGU is a Colorado corporation which if e-mail is used. To help us process and for hearing should identify specifically owns and operates a natural gas review your comments more efficiently, the issues of facts or law that are distribution system (the ‘‘utility assets’’) please use only one method. The disputed. A person who so requests will serving approximately 740 customers in Commission will post all comments on be notified of any hearing, if ordered, the cities of Gallatin and Hamilton, the Commission’s Internet Web site and will receive a copy of any notice or Missouri, and surrounding (http://www.sec.gov/rules/delist.shtml). order issued in the matter. After communities. As of December 31, 2004, Comments are also available for public September 13, 2005, the application(s) MGU had 554,400 feet of gas main lines inspection and copying in the and/or declaration(s), as filed or as and 111,000 feet of service lines, located Commission’s Public Reference Room. amended, may be granted and/or in the Missouri counties of Caldwell, All comments received will be posted permitted to become effective. Davies and Harrison. For the nine without change; we do not edit personal CNG Holdings, Inc. (70–10288) months ended December 31, 2004, MGU identifying information from CNG Holdings, Inc. (‘‘Holdings’’), an had no gross operating revenues, and submissions. You should submit only exempt holding company, 7810 Shaffer only $362 of interest income. MGU’s net information that you wish to make Parkway, Suite 120, Littleton, CO 80127, assets as of December 31, 2004 were available publicly. has filed with this Commission an $2,320,878. MGU does not conduct any The Commission, based on the application/declaration under Sections nonutility businesses and the company information submitted to it, will issue 3(a)(1), 9(a)(2) and 10 of the Act has no subsidiaries. an order granting the application after (‘‘Application’’). MGU is subject to the regulation of the date mentioned above, unless the Holdings seeks authority to acquire the Public Service Commission of the Commission determines to order a the common stock of Missouri Gas State of Missouri (‘‘MPSC’’) with regard hearing on the matter. Utility, Inc. (‘‘MGU’’). In addition, to rates, quality of service, affiliate transactions and other matters. The 3 3 15 U.S.C. 78l(b). 4 17 CFR 200.30–3(a)(1). MPSC authorized MGU to acquire the
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49956 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
utility assets by order dated December SECURITIES AND EXCHANGE thereunder,2 a proposed rule change to 14, 2004. COMMISSION approve for listing and trading Yield Holdings seeks authority to acquire all Underlying Participating Securities [File No. 500–1] of the issued and outstanding common (‘‘YUPS’’), representing a beneficial stock of MGU. The transaction is In the Matter of Global Development ownership interest in the common stock structured as a stock-for-stock exchange and Environmental Resources, Inc., of a single, publicly-traded company at a ratio of 25:1 in which the current Order of Suspension of Trading and a series of U.S. Treasury Securities shareholders of MGU would exchange with quarterly maturities. On April 15, the 57,590 outstanding common shares August 23, 2005. 2005, Amex filed Amendment No. 1 to of MGU for 2,303 common shares of It appears to the Securities and the proposed rule change. The proposed Holdings. As of December 31, 2004, Exchange Commission that there is a rule change and Amendment No. 1 Holdings had 1,424,663 shares of lack of current and accurate information thereto were published for comment in common stock issued and outstanding. concerning the securities of Global the Federal Register on April 22, 2005.3 The acquisition of MGU would increase Development and Environmental The Commission received no the number of Holdings shares Resources, Inc. (‘‘Global Development’’), comments on the proposal. This order outstanding to 1,426,966 shares. a non-reporting issuer quoted on the approves the proposed rule change, as The municipalities of Gallatin and Pink Sheets under the ticker symbol Hamilton, Missouri had initially GDVE. Questions have been raised amended by Amendment No. 1. operated the gas utility assets now regarding the accuracy of information in Simultaneously, the Commission owned by MGU. The municipalities company press releases and on the provides notice of filing of Amendment financed the construction of the assets internet concerning Global No. 2 to the proposed rule change and through a lease transaction. When the Development’s officers, operations and grants accelerated approval of 4 municipalities defaulted on their lease products. Amendment No. 2. obligations, the trustee, acting on behalf The Commission is of the opinion that YUPS will be eligible for listing and of the lenders, sought to sell the assets. the public interest and the protection of trading, including trading pursuant to Pursuant to a sale authorized by the investors require a suspension of trading unlisted trading privileges, pursuant Missouri Public Service Commission in in the securities of the above-listed Commentary .03(a)–(f) of Rule 1202.5 December 2004, MGU acquired the gas company. YUPS will also be subject to distribution system in Gallatin and Therefore, it is ordered, pursuant to Commentary .13 to Amex Rule 170,6 Hamilton for an aggregate consideration section 12(k) of the Securities Exchange which allows a limited exception for of $1.9 million, plus counsel and bank Act of 1934, that trading in the above- specialist in Single TIRs, including the fees of approximately $46,000. MGU listed company is suspended for the YUPS, to buy on plus ticks and/or sell financed the acquisition with bank period from 9:30 a.m. EDT August 23, on minus ticks to bring the Single TIR/ financing in the amount of $2 million, 2005 through 11:59 p.m. EDT, on YUPS into parity with the underlying backed by a guarantee from Holdings. September 6, 2005. securities. YUPS will not qualify for CNG did not provide any financing for By the Commission. side-by-side trading and integrated MGU’s acquisition of the assets, nor did Jonathan G. Katz, market making as set forth in Amex it guarantee the loan. Rule 175(c)(2) and 985(e),7 under Upon consummation of the Secretary. Commentary .05 to Amex Rule 1202. acquisition, MGU would be a wholly- [FR Doc. 05–17001 Filed 8–23–05; 12:05 pm] Furthermore, YUPS will be subject to owned direct subsidiary of Holdings. BILLING CODE 8010–01–P Commentary .06 to Amex Rule 1202, Holdings requests that the Commission regarding trading halts, and issue an order authorizing the Commentary .07 to Amex Rule 1202, acquisition and exempting Holdings, SECURITIES AND EXCHANGE regarding allowable percentages set under Section 3(a)(1), from all COMMISSION forth in Section 107B of the Amex provisions of the Act, except Section [Release No. 34–52298; File No. R–Amex– Company Guide (‘‘Company Guide’’).8 9(a)(2). In support of its request for an 2004–47] order of exemption, Holdings asserts that (i) MGU is not a material public Self-Regulatory Organizations; 2 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 51566 utility subsidiary, (ii) after the American Stock Exchange LLC; Order (April 18, 2005), 70 FR 20946 (‘‘YUPS Notice’’). acquisition, Holdings and CNG will Granting Approval to Proposed Rule 4 On August 16, 2005, the Exchange submitted both be organized in Colorado, and (iii) Change and Amendment No. 1 Amendment No. 2 to the proposed rule change. both Holdings and CNG also will be Thereto, and Notice of Filing and Order 5 The listing standards for YUPS described herein predominantly intrastate in character Granting Accelerated Approval to were originally incorporated in a separate proposal for generic listing standards for trust issued receipts and carry on their business substantially Amendment No. 2 Thereto, Relating to based on a single underlying listed security (‘‘Single in Colorado. In support of its request for Listing and Trading of Yield Underlying TIRs’’). See Securities Exchange Act Release No. approval of the acquisition, Holdings Participating Securities (YUPS) 51567 (April 18, 2005), 70 FR 20939 (April 22, submits that the combined utility 2005) (‘‘Single TIR Proposal’’). Following Amex’s August 18, 2005. withdrawal of the Single TIR Proposal, Amex operations will be a single integrated submitted Amendment No. 2 to this proposed rule public utility system, operating in a I. Introduction change to incorporate those same listing standards single area or region. solely for YUPS products. Therefore, in this order, On June 10, 2004, the American Stock the Commission is only approving the listing and For the Commission, by the Division of Exchange LLC (‘‘Amex’’) filed with the trading of the YUPS-type product, which represents Investment Management, pursuant to Securities and Exchange Commission beneficial ownership interests in the common stock delegated authority. (‘‘Commission’’), pursuant to Section of a single publicly traded company and a series of Margaret H. McFarland U.S. Treasury securities with quarterly maturities. 19(b)(1) of the Securities Exchange Act 6 This new Commentary .13 to Amex Rule 170 Deputy Secretary. 1 of 1934 (‘‘Act’’) and Rule 19b–4 was proposed in the Single TIR Proposal. [FR Doc. E5–4649 Filed 8–24–05; 8:45 am] 7 See Single TIR Proposal. BILLING CODE 8010–01–P 1 15 U.S.C. 78s(b)(1). 8 See Single TIR Proposal.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49957
II. Discussion and Commission IV. Solicitation of Comments Amendment No. 2 to the proposed rule Findings Interested persons are invited to change be, and hereby is, approved on an accelerated basis. The Commission finds that the submit written data, views, and proposed rule change, as amended, is arguments concerning the foregoing, For the Commission, by the Division of including whether Amendment No. 2 is Market Regulation, pursuant to delegated consistent with the requirements of the consistent with the Act. Comments may authority. Act and the rules and regulations be submitted by any of the following Margaret H. McFarland, thereunder applicable to a national methods: Deputy Secretary. securities exchange 9 and, in particular, the requirements of Section 6 of the Electronic Comments [FR Doc. E5–4638 Filed 8–24–05; 8:45 am] BILLING CODE 8010–01–P Act 10 and the rules and regulations • Use the Commission’s Internet thereunder. The Commission finds comment form (http://www.sec.gov/ specifically that the proposed rule rules/sro.shtml); or SECURITIES AND EXCHANGE change is consistent with Section 6(b)(5) • Send an e-mail to rule- COMMISSION of the Act,11 in that it is designed to [email protected]. Please include File prevent fraudulent and manipulative Number SR–Amex–2004–47 on the [Release No. 34–52303; File No. SR–NASD– acts and practices, to promote just and subject line. 2005–057] equitable principles of trade, to foster Paper Comments Self-Regulatory Organizations; cooperation and coordination with National Association of Securities persons engaged in regulating, clearing, • Send paper comments in triplicate Dealers, Inc.; Notice of Filing of settling, processing information with to Jonathan G. Katz, Secretary, Proposed Rule Change Relating to respect to, and facilitating transactions Securities and Exchange Commission, Summary Orders in the Nasdaq Market in securities, to remove impediments to 100 F Street, NE., Washington, DC Center and perfect the mechanism of a free and 20549–9303. All submissions should refer to File open market and a national market August 18, 2005. Number SR–Amex–2004–47. This file system, and, in general, to protect Pursuant to Section 19(b)(1) of the number should be included on the investors and the public interest. Securities Exchange Act of 1934 subject line if e-mail is used. To help the 1 2 The Commission finds good cause for Commission process and review your (‘‘Act’’), and Rule 19b–4 thereunder, approving proposed Amendment No. 2 comments more efficiently, please use notice is hereby given that on April 22, before the 30th day after the date of only one method. The Commission will 2005, the National Association of publication of notice of filing thereof in post all comments on the Commission’s Securities Dealers, Inc. (‘‘NASD’’), the Federal Register. Amex filed Internet Web site (http://www.sec.gov/ through its subsidiary, The Nasdaq Amendment No. 2 solely for the rules/sro.shtml). Copies of the Stock Market, Inc. (‘‘Nasdaq’’), filed purpose of incorporating generic listing submission, all subsequent with the Securities and Exchange standards pursuant to Rule 19b–4(e) 12 amendments, all written statements Commission (‘‘Commission’’) the for YUPS. The generic listing standards with respect to the proposed rule proposed rule change as described in proposed in Amendment No. 2 were change that are filed with the Items I, II, and III below, which Items previously noticed in the separately Commission, and all written have been prepared by Nasdaq. The proposed Single TIR proposal,13 and communications relating to the Commission is publishing this notice to incorporated by reference in the YUPS proposed rule change between the solicit comments on the proposed rule notice.14 Amex has recently withdrawn Commission and any person, other than change from interested persons. the Single TIR proposal. In order to those that may be withheld from the I. Self-Regulatory Organization’s retain the generic listing standards for public in accordance with the Statement of the Terms of Substance of the YUPS product, Amex submitted provisions of 5 U.S.C. 552, will be the Proposed Rule Change Amendment No. 2 to this proposed rule available for inspection and copying in Nasdaq proposes to allow all eligible change, to incorporate those standards the Commission’s Public Reference market participants in the Nasdaq as part of this proposed rule change. Room. Copies of such filing also will be Market Center to enter attributable and Because the generic listing standards available for inspection and copying at non-attributable Summary Orders in proposed in Amendment No. 2 were the principal office of Amex. All Nasdaq-listed and exchange-listed already published in the Federal comments received will be posted securities. Below is the text of the Register as part of the Single TIR without change; the Commission does proposed rule change. Proposed new proposal and because no comments not edit personal identifying language is italicized; proposed were received on the Single TIR information from submissions. You deletions are in [brackets]. proposal, the Commission finds good should submit only information that cause for accelerating approval of you wish to make available publicly. All * * * * * Amendment No. 2 in order to prevent submissions should refer to File 4700. NASDAQ MARKET CENTER— any unnecessary delay in the approval Number SR–Amex–2004–47 and should EXECUTION SERVICES of this proposed rule change in its be submitted on or before September 15, entirety. 2005. 4701. Definitions Unless stated otherwise, the terms V. Conclusion 9 In approving this proposed rule change, the described below shall have the Commission notes that it has considered the It is therefore ordered, pursuant to following meaning: proposed rule’s impact on efficiency, competition, Section 19(b)(2) of the Act,15 that the and capital formation. 15 U.S.C. 78c(f). (a)–(nn) No Change. 10 15 U.S.C. 78f. proposed rule change (SR–Amex–2004– (oo) The term ‘‘Summary’’ shall mean, 11 15 U.S.C. 78f(b)(5). 47), as amended by Amendment No. 1, for priced limit orders so designated, 12 17 CFR 240.19b–4(e). be, and it hereby is, approved, and that 13 See Single TIR proposal. 1 15 U.S.C. 78s(b)(1). 14 See YUPS Notice. 15 15 U.S.C. 78s(b)(2). 2 17 CFR 240.19b–4.
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49958 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
that if an order is marketable upon attributable Summary Orders, and to 2. Statutory Basis receipt by the Nasdaq Market Center, it make Summary Orders available for Nasdaq believes that the proposed shall be rejected and returned to the exchange-listed securities. Nasdaq rule change is consistent with the entering party. [Summary Orders may represents that, today, Summary Orders provisions of Section 15A of the Act,3 in only be entered by Nasdaq Order- in essence provide a warning that the general, and with Section 15A(b)(6) of Delivery ECNs.] price of the order in a Nasdaq security the Act,4 in particular, in that it is (pp)–(uu) No Change. would lock or cross the best prices then designed to prevent fraudulent and * * * * * displayed in the Nasdaq Market Center manipulative acts and practices, to by rejecting such an order back to the 4706. Order Entry Parameters promote just and equitable principles of entering party. If the Summary Order trade, remove impediments to a free and (a) Non-Directed Orders— does not lock or cross the best price, it open market and a national market (1) General. The following is retained by the system for normal system, and, in general, to protect requirements shall apply to Non- processing. The use of Summary Orders investors and the public interest. In Directed Orders Entered by Nasdaq is currently restricted to Nasdaq Order particular, Nasdaq believes that the Delivery ECNs. Approval of this Market Center Participants: increased control given to all market proposal would give all Nasdaq Market (A) No Change. participants through the use of Center participants the ability to enter (B) A Non-Directed Order must be a Summary Orders would assist in such orders on either an attributable, or market or limit order, must indicate improving execution quality for non-attributable, basis and make whether it is a buy, short sale, short-sale themselves and their customers. In Summary Orders available for exchange- exempt, or long sale, and may be addition, to the extent that expansion of listed securities. designated as ‘‘Immediate or Cancel’’, the Summary Order to attributable ‘‘Day’’, ‘‘Good-till-Cancelled’’, ‘‘Auto- Nasdaq represents that, under current Nasdaq Market Center processing, orders encourages the submission of Ex’’, ‘‘Fill or Return’’, ‘‘Pegged’’, greater amounts of trading interest in ‘‘Discretionary’’, ‘‘Sweep’’, ‘‘Total Day’’, quotes already provide the lock/cross warning via rejection attributes of the the form of such orders into the Nasdaq ‘‘Total Good till Cancelled’’, or ‘‘Total Market Center, Nasdaq believes that all Immediate or Cancel,’’ or ‘‘Summary.’’ Summary Order. Orders that are not designated as Summary, however, do market participants can be expected to (i)–(xii) No Change. benefit from such increased system (xiii) An order may be designated as not provide similar lock/cross warning liquidity. ‘‘Summary,’’ in which case the order capabilities and are considered shall be designated either as Day or immediately executable indications of B. Self-Regulatory Organization’s GTC. A Summary Order that is trading interest that would be executed Statement on Burden on Competition by the system if they locked or crossed marketable upon receipt by the Nasdaq Nasdaq does not believe that the Market Center shall be rejected and the Nasdaq inside market. Nasdaq believes that the ability to proposed rule change will impose any returned to the entering party. If not burden on competition that is not marketable upon receipt by the Nasdaq receive a warning via order rejection when entering a locking or crossing necessary or appropriate in furtherance Market Center, it will be retained by the of the purposes of the Act. system. [Summary Orders may only be order is an important component in entered by Nasdaq Order-Delivery enhancing Nasdaq market participants’ C. Self-Regulatory Organization’s ECNs.] control over how their orders are Statement on Comments on the (C)–(F) No Change. processed in the Nasdaq Market Center. Proposed Rule Change Received From (2) No Change. Nasdaq represents that, through the Members, Participants, or Others availability of the Summary Order lock/ (b)–(e) No Change. No written comments were either cross warning, market participants can * * * * * solicited or received. themselves determine if they desire to II. Self-Regulatory Organization’s immediately execute against available III. Date of Effectiveness of the Statement of the Purpose of, and trading interest, or instead provide Proposed Rule Change and Timing for Statutory Basis for, the Proposed Rule liquidity via a posted order. Nasdaq Commission Action Change believes that this control is especially Within 35 days of the date of important in today’s trading In its filing with the Commission, publication of this notice in the Federal environment, where smaller spreads Nasdaq included statements concerning Register or within such longer period (i) accentuate transaction costs. Such costs the purpose of, and basis for, the as the Commission may designate up to can be minimized by being a provider proposed rule change and discussed any 90 days of such date if it finds such of liquidity that, in some cases, entitles comments it received on the proposed longer period to be appropriate and the submitting party to an execution fee rule change. The text of these statements publishes its reasons for so finding, or rebate, thereby reducing overall may be examined at the places specified (ii) as to which Nasdaq consents, the transaction costs. As noted above, lock in Item IV below. Nasdaq has prepared Commission will: or cross warnings similar to those summaries, set forth in Sections A, B, (A) By order approve such proposed provided by the Summary Order are rule change; or and C below, of the most significant available today to Nasdaq market aspects of such statements. (B) Institute proceedings to determine participants that use quotes when whether the proposed rule change A. Self-Regulatory Organization’s representing trading interest in the should be disapproved. Statement of the Purpose of, and Nasdaq Market Center. By also making Statutory Basis for, the Proposed Rule lock/cross warnings via order rejection IV. Solicitation of Comments Change an option for orders entered by market Interested persons are invited to participants, Nasdaq believes that the submit written data, views, and 1. Purpose ability of market participants would be arguments concerning the foregoing, Nasdaq is proposing to allow all enhanced to obtain better, more participants in the Nasdaq Market economically efficient executions for 3 15 U.S.C. 78o–3. Center to enter attributable and non- themselves and their customers. 4 15 U.S.C. 78o–3(b)(6).
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49959
including whether the proposed rule SECURITIES AND EXCHANGE [(b)](d) For purposes of this Rule, the change is consistent with the Act. COMMISSION term ‘‘OTC Equity Security’’ means any Comments may be submitted by any of equity security not classified as a [Release No. 34–52280; File No. SR–NASD– the following methods: 2005–095] ‘‘designated security’’ for purposes of the Rule 4630 and 4640 Series, or as an Electronic Comments Self-Regulatory Organizations; ‘‘eligible security,’’ for purposes of the • Use the Commission’s Internet National Association of Securities Rule 6400 Series. The term does not comment form (http://www.sec.gov/ Dealers, Inc.; Notice of Filing of a include ‘‘restricted securities,’’ as defined by SEC Rule 144(a)(3) under the rules/sro.shtml); or Proposed Rule Change and Securities Act of 1933, nor any • Amendment No. 1 Thereto Relating to Send an e-mail to rule- Sub-Penny Restrictions for Non- securities designated in the PORTAL [email protected]. Please include File Nasdaq Over-the-Counter Equity MarketSM. Number SR–NASD–2005–057 on the Securities * * * * * subject line. August 17, 2005. II. Self-Regulatory Organization’s Paper Comments Pursuant to Section 19(b)(1) of the Statement of the Purpose of, and Statutory Basis for, the Proposed Rule • Send paper comments in triplicate Securities Exchange Act of 1934 1 2 Change to Jonathan G. Katz, Secretary, (‘‘Act’’) and Rule 19b–4 thereunder, Securities and Exchange Commission, notice is hereby given that on July 28, In its filing with the Commission, 2005, the National Association of 100 F Street, NE., Washington, DC NASD included statements concerning Securities Dealers, Inc. (‘‘NASD’’) filed 20549–9303. the purpose of and basis for the with the Securities and Exchange proposed rule change and discussed any All submissions should refer to File Commission (‘‘Commission’’) the comments it received on the proposed Number SR–NASD–2005–057. This file proposed rule change as described in rule change. The text of these statements number should be included on the Items I, II, and III, which Items have may be examined at the places specified subject line if e-mail is used. To help the been prepared by NASD. On August 16, in Item IV below. NASD has prepared Commission process and review your 2005, NASD submitted Amendment No. summaries, set forth in sections A, B, comments more efficiently, please use 1 to the proposed rule change.3 The and C below, of the most significant only one method. The Commission will Commission is publishing this notice to aspects of such statements. post all comments on the Commission’s solicit comments on the proposed rule Internet Web site (http://www.sec.gov/ change from interested persons. A. Self-Regulatory Organization’s rules/sro.shtml). Copies of the Statement of the Purpose of, and I. Self-Regulatory Organization’s Statutory Basis for, the Proposed Rule submission, all subsequent Statement of the Terms of Substance of Change amendments, all written statements the Proposed Rule Change with respect to the proposed rule 1. Purpose change that are filed with the NASD is proposing to amend NASD Rule 6750 to impose restrictions on the NASD is proposing a rule change that Commission, and all written would prohibit the accepting, ranking, communications relating to the display of quotes and orders in sub- penny increments for non-Nasdaq OTC or displaying of quotes, orders, or proposed rule change between the equity securities. Below is the text of the indications of interest in sub-penny Commission and any person, other than proposed rule change. Proposed new increments for all non-Nasdaq OTC those that may be withheld from the language is in italics; proposed equity securities in any quotation public in accordance with the deletions are in brackets. medium,4 except for quotes, orders, and provisions of 5 U.S.C. 552, will be indications of interest priced at less * * * * * available for inspection and copying in than $1.00 per share. NASD believes the Commission’s Public Reference 6750. [Minimum] Quotation [Size] that the existing quotation environment, Room. Copies of such filing also will be Requirements for OTC Equity Securities in which market participants use available for inspection and copying at (a) No change. quotation increments ranging from the principal office of Nasdaq. All (b) No member shall display, rank, or pennies to hundredths of pennies, can comments received will be posted accept a bid or offer, an order, or an harm investors by creating a two-tiered without change; the Commission does indication of interest in any OTC Equity market, one for ordinary investors and not edit personal identifying Security priced in an increment smaller another for professionals, undermining information from submissions. You than $0.01 if that bid or offer, order or important Commission and self- should submit only information that indication of interest is priced equal to regulatory organization policy you wish to make available publicly. All or greater than $1.00 per share. objectives. The potential harm submissions should refer to File (c) No member shall display, rank, or associated with sub-penny quoting in Number SR–NASD–2005–057 and accept a bid or offer, an order, or an national market stocks is described in should be submitted on or before indication of interest in any OTC Equity the Commission’s Proposing Release September 15, 2005. Security priced in an increment smaller and Adopting Release for Regulation NMS,5 and, in NASD’s view, essentially For the Commission, by the Division of than $0.0001 if that bid or offer, order Market Regulation, pursuant to delegated or indication of interest is priced equal 4 ‘‘Quotation medium’’ is defined in NASD Rule authority.5 to or greater than $0.01 per share and less than $1.00 per share. 6710(f) and includes, among others, the Over-the- Margaret H. McFarland, Counter Bulletin Board and the Electronic Pink Sheets. Deputy Secretary. 1 15 U.S.C. 78s(b)(1). 5 See Securities Exchange Act Release No. 49325 [FR Doc. E5–4637 Filed 8–24–05; 8:45 am] 2 17 CFR 240.19b–4. (February 26, 2004), 69 FR 11126 (March 9, 2004) 3 BILLING CODE 8010–01–P In Amendment No. 1, NASD made minor (Proposing Release); Securities Exchange Act clarification to the proposed rule text, corrected Release No. 50870 (December 16, 2004), 69 FR typographical errors, and changed the proposed 77423 (December 27, 2004) (Reproposing Release); 5 17 CFR 200.30–3(a)(12). compliance date for the rule change. Continued
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49960 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
the same potential problems exist with of the proposed rule change prior to that Electronic Comments respect to OTC equity securities. date. NASD will announce the • Accordingly, NASD is proposing a compliance date of the proposed rule Use the Commission’s Internet rule change that would prohibit change in a Notice to Members to be comment form http://www.sec.gov/ members from displaying, ranking, or published no later than 60 days rules/sro.shtml; or accepting a bid, offer, order, or following Commission approval. • Send an e-mail to rule- indication of interest in any non-Nasdaq 2. Statutory Basis [email protected]. Please include File OTC equity security in any quotation Number SR–NASD–2005–095 on the medium priced in an increment smaller NASD believes that the proposed rule subject line. than $0.01 if such bid, offer, order, or change is consistent with the provisions indication of interest is priced equal to of Section 15A(b)(6) of the Act,7 which Paper Comments or greater than $1.00 per share. In requires, among other things, that NASD • Send paper comments in triplicate addition, members also would be rules be designed to prevent fraudulent to Jonathan G. Katz, Secretary, prohibited from displaying, ranking, or and manipulative acts and practices, to accepting a bid, offer, order, or promote just and equitable principles of Securities and Exchange Commission, indication of interest in any non-Nasdaq trade, and, in general, to protect 100 F Street, NE., Washington, DC OTC Equity Security priced in an investors and the public interest. NASD 20549–9303. increment smaller than $0.0001 if such believes that the proposed rule change All submissions should refer to File bid, offer, order, or indication of interest would reduce the potential harms Number SR–NASD–2005–095. This file is priced equal to or greater than $0.01 associated with sub-penny quoting in number should be included on the per share and less than $1.00 per share. non-Nasdaq OTC equity securities. subject line if e-mail is used. To help the This is consistent with the sub-penny Commission process and review your requirements in Regulation NMS. B. Self-Regulatory Organization’s comments more efficiently, please use However, unlike Regulation NMS, Statement on Burden on Competition members would not be prohibited from only one method. The Commission will NASD does not believe that the post all comments on the Commission’s displaying, ranking, or accepting a bid, proposed rule change would result in Internet Web site (http://www.sec.gov/ offer, order, or indication of interest in any burden on competition that is not rules/sro.shtml). Copies of the any non-Nasdaq OTC equity security necessary or appropriate in furtherance priced in an increment smaller than of the purposes of the Act. submission, all subsequent $0.0001 if such bid, offer, order, or amendments, all written statements indication of interest is priced less than C. Self-Regulatory Organization’s with respect to the proposed rule $0.01 per share. This reflects the fact Statement on Comments on the change that are filed with the that it is not uncommon for non-Nasdaq Proposed Rule Change Received From Commission, and all written OTC equity securities to trade at prices Members, Participants, or Others communications relating to the below $0.01, and the proposal is not Written comments were neither proposed rule change between the intended to restrict quoting or trading of solicited nor received. Commission and any person, other than such securities. those that may be withheld from the If the Commission approves this III. Date of Effectiveness of the public in accordance with the proposed rule change, NASD would Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be Commission Action announce the effective date of the available for inspection and copying in proposed rule change in a Notice to Within 35 days of the date of the Commission’s Public Reference Members to be published no later than publication of this notice in the Federal Room. Copies of such filing also will be 60 days following Commission Register or within such longer period (i) available for inspection and copying at approval. The compliance date of the as the Commission may designate up to the principal office of NASD. All proposed rule change will coincide with 90 days of such date if it finds such comments received will be posted the compliance date of Rule 612 (‘‘the longer period to be appropriate and without change; the Commission does Sub-Penny Rule’’) under Regulation publishes its reasons for so finding or not edit personal identifying NMS,6 assuming Commission approval (ii) as to which the self-regulatory information from submissions. You organization consents, the Commission Securities Exchange Act Release No. 51808 (June 9, should submit only information that 2005), 70 FR 37496 (June 29, 2005) (Adopting will: you wish to make available publicly. All Release). Regulation NMS, among other things, A. By order approve such proposed submissions should refer to the File prohibits market participants from accepting, rule change, or ranking, or displaying orders, quotes, or indications Number SR–NASD–2005–095 and of interest in NMS stocks in a pricing increment B. Institute proceedings to determine should be submitted on or before finer than a penny, except for orders, quotations, or whether the proposed rule change September 15, 2005. indications or interest that are priced at less than should be disapproved. $1.00 per share. In Regulation NMS, the For the Commission, by the Division of Commission indicated that other potential harms IV. Solicitation of Comments Market Regulation, pursuant to delegated associated with sub-penny quoting include a authority.8 decrease in market depth, an increase in the Interested persons are invited to incidence of market participants stepping ahead of submit written data, views, and Margaret H. McFarland, standing limit orders for an economically arguments concerning the foregoing, Deputy Secretary. insignificant amount, and added difficultly for broker-dealers to meet certain of their regulatory including whether the proposed rule [FR Doc. E5–4650 Filed 8–24–05; 8:45 am] obligations by increasing the incidence of so-called change, as amended, is consistent with BILLING CODE 8010–01–P ‘‘flickering’’ quotes. Further, the Commission the Act. Comments may be submitted by expressed concern that sub-penny quotes could any of the following methods: impair broker-dealers’ efforts to meet their best execution obligations and interfere with investors’ understanding of securities prices. See Securities Exchange Act Release No. 52196 6 Currently, the compliance date of the Sub-Penny (Aug. 2, 2005), 70 FR 45529 (Aug. 8, 2005). Rule under Regulation NMS is January 31, 2006. 7 15 U.S.C. 78o–3(b)(6). 8 17 CFR 200.30–3(a)(12).
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49961
SECURITIES AND EXCHANGE (1) Time of Day Restriction whose behalf the telemarketing call is COMMISSION Any residence of a person before the made will be liable for any failures to hour of 8 a.m. or after 9 p.m. (local time honor the do-not-call request. [Release No. 34–52308; File No. SR–NYSE– at the called party’s location), unless (4) Identification of sellers and 2004–73] (A) the member or member telemarketers. A member, allied member organization has an established or employee of a member or member Self-Regulatory Organizations; New business relationship with the called organization making a call for York Stock Exchange, Inc., Notice of party pursuant to paragraph (j)(1)(A), telemarketing purposes must provide Filing of Proposed Rule Change and (B) the member or member the called party with the name of the Amendment Nos. 1 and 2 Thereto To organization has received the called individual caller, the name of the Amend NYSE Rule 440A Relating to party’s prior express invitation or member or member organization, an Telephone Solicitation permission, or address or telephone number at which (C) the called party is a broker or the member or member organization August 19, 2005. dealer; may be contacted, and that the purpose Pursuant to Section 19(b)(1) 1 of the of the call is to solicit the purchase or Securities Exchange Act of 1934 (2) Firm-Specific Do-Not-Call List sale of securities or a related service. (‘‘Exchange Act’’),2 and Rule 19b–4 Any person that previously has stated The telephone number provided may thereunder,3 notice is hereby given that that he or she does not wish to receive not be a 900 number or any other on December 30, 2004, the New York an outbound telephone call made by or number for which charges exceed local Stock Exchange, Inc. (‘‘NYSE’’ or on behalf of the member or member or long distance transmission charges. ‘‘Exchange’’) filed with the Securities organization; or (5) Affiliated persons or entities. In and Exchange Commission (‘‘SEC’’ or the absence of a specific request by the (3) National Do-Not-Call List ‘‘Commission’’) the proposed rule person to the contrary, a person’s do- change as described in Items I, II, and Any person who has registered his or not-call request shall apply to the III below, which Items have been her telephone number on the Federal member or member organization prepared by the Exchange. On July 1, Trade Commission’s national do-not- making the call, and will not apply to 2005, the NYSE filed Amendment No. 1 call registry. affiliated entities unless the consumer to the proposed rule change.4 On (b) Procedures reasonably would expect them to be August 11, 2005, the NYSE filed included given the identification of the Amendment No. 2 to the proposed rule Prior to engaging in telephone caller and the product or service being change.5 The Commission is publishing solicitation or telemarketing, a member advertised. this notice to solicit comments on the or member organization must institute (6) Maintenance of do-not-call lists. A proposed rule change, as amended, from procedures to comply with paragraph member or member organization interested persons. (a). Such procedures must meet the making calls for telemarketing purposes following minimum standards: must maintain a record of a caller’s I. Self-Regulatory Organization’s (1) Written policy. Members and request not to receive further Statement of the Terms of Substance of member organizations must have a telemarketing calls. A firm-specific do- the Proposed Rule Change written policy available upon demand not-call request must be honored for five for maintaining a do-not-call list. years from the time the request is made. The Exchange is proposing to amend (2) Training of personnel engaged in NYSE Rule 440A (‘‘Telephone telemarketing. Personnel engaged in any (c) National Do-Not-Call List Exceptions Solicitation’’) to incorporate the aspect of telemarketing must be national Do-Not-Call Registry and Paragraph (a)(3) national do-not-call informed and trained in the existence list restrictions shall not apply, if: applicable FCC regulations. The text of and use of the do-not-call list, including current Rule 440A would be deleted. the policies and procedures of the firm (1) Established Business Relationship The text of the proposed rule change is regarding communications with the Exception set forth below. Italics indicate new text. public. The member or member organization * * * * * (3) Recording, honoring of do-not-call has an established business relationship Rule 440A requests. If a member or member with the recipient of the call. A person’s organization making a call for request to be placed on the firm-specific Telephone Solicitation telemarketing purposes receives a do-not-call list terminates the (a) General Telephone Solicitation request from a person not to receive established business relationship Requirements calls from that member or member exception to that national do-not-call organization, the member or member No member, allied member or list provision for that member or organization must record the request employee of a member or member member organization even if the person and place the person’s name, if organization shall initiate any telephone continues to do business with the provided, and telephone number on the solicitation, as defined in paragraph member or member organization; firm’s do-not-call list at the time the (j)(2) of this rule, to: request is made. Members and member (2) Prior Express Written Consent organizations must honor a person’s do- Exception 1 15 U.S.C. 78s(b)(1). not-call request within a reasonable The member or member organization 2 15 U.S.C. 78a et seq. 3 17 CFR 240.19b-4. time from the date such request is made. has obtained the person’s prior express 4 In Amendment No. 1, the NYSE proposed to This period may not exceed 30 days invitation or permission. Such partially amend the text of proposed amended Rule from the date of such request. If such permission must be evidenced by a 440A and made conforming and technical changes requests are recorded or maintained by signed, written agreement between the to the original filing. a party other than the member or person and member or member 5 In Amendment No. 2, the NYSE proposed additional changes to the text of proposed amended member organization on whose behalf organization which states that the Rule 440A and made additional changes to the the telemarketing call is made, the person agrees to be contacted by the original filing. member or member organization on member or member organization and
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49962 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
includes the telephone number to which (i) At the beginning of the message, (2) Members and member the calls may be placed; or state clearly the identity of the member organizations must clearly mark, in a or member organization that is margin at the top or bottom of each page (3) Personal Relationship Exception responsible for initiating the call. The of the transmission, the date and time The member, allied member or member or member organization it is sent and an identification of the employee of a member or member responsible for initiating the call must member or member organization organization making the call has a state the name under which the member sending the message and the telephone personal relationship with the recipient or member organization is registered to number of the sending machine or of the of the call. conduct business with the applicable member or employee of the member or (d) Safe Harbor Provision State Corporation Commission (or member organization sending the comparable regulatory authority); and transmission. Paragraph (a)(3) general telephone (ii) During or after the message, must (h) Caller Identification Information solicitation restrictions shall not apply state clearly the telephone number to a member or employee of a member (other than that of the autodialer or (1) Any member or member or member organization making prerecorded message player that placed organization that engages in telephone solicitations, if the member or the call) of such member or member telemarketing, as defined in paragraph employee of a member or member organization. The telephone number (j)(2) of this rule, must transmit caller organization demonstrates that the provided may not be a 900 number or identification information. Such caller violation is the result of an error and any other number for which charges identification information must include that as part of the member or member exceed local or long distance either the Calling Party Number organization’s routine business practice, transmission charges. (‘‘CPN’’) or the calling party’s billing it meets the following standards: (iii) For telemarketing messages to a number, also known as the Charge (1) Written procedures. The member residence, such telephone number, Number (‘‘ANI’’), and, when available or member organization has established mentioned in paragraph (e)(2)(ii) above, from the telephone carrier, the name of and implemented written procedures to must permit any individual to make a the member or member organization. comply with the national do-not-call do-not-call request during regular The telephone number so provided must rules; business hours for the duration of the permit any person to make a do-not-call (2) Training of personnel. The telemarketing campaign. request during regular business hours. member or member organization has Whenever possible, CPN is the preferred trained its personnel, and any entity (f) Wireless Communications number and should be transmitted. assisting in its compliance, in (1) Members and member (2) Any member or member procedures established pursuant to the organizations are prohibited from using organization that engages in national do-not-call rules; an automatic telephone dialing system telemarketing, as defined in paragraph (3) Recording. The member or or an artificial or prerecorded voice (j)(2) of this rule, is prohibited from member organization has maintained when initiating a telephone call to any blocking the transmission of caller and recorded a list of telephone telephone number assigned to a paging identification information. numbers that it may not contact; and service, cellular telephone service, (3) Provision of caller identification (4) Accessing the national do-not-call specialized mobile radio service, or information does not obviate the database. The member or member other radio common carrier service, or requirement for a caller to verbally organization uses a process to prevent any service for which the called party is supply identification information during telephone solicitations to any telephone charged for the call. a call. number on any list established pursuant to the do-not-call rules, employing a (2) The requirements of this rule are (i) Outsourcing Telemarketing version of the national do-not-call applicable to members and member If a member or member organization registry obtained from the administrator organizations telemarketing or making uses another entity to perform of the registry no more than 31 days telephone solicitation calls to wireless telemarketing services on its behalf, the prior to the date any call is made, and telephone numbers. member or member organization maintains records documenting this (g) Telephone Facsimile or Computer remains responsible for ensuring process. Advertisements compliance with all provisions No member or member organization contained in this rule. (e) Pre-Recorded Messages may use a telephone facsimile machine, (1) A member or member organization computer or other device to send an (j) Definitions may not initiate any telephone call to unsolicited advertisement to a (1) Established Business Relationship any residence using an artificial or telephone facsimile machine, computer (A) An established business prerecorded voice to deliver a message, or other device. relationship means a prior or existing without the prior express consent of the (1) For purposes of paragraph (g) of relationship formed by a voluntary two- called person, unless the call: this rule, a facsimile advertisement is way communication between a member (i) is not made for a commercial not ‘‘unsolicited’’ if the recipient has or member organization and a person, purpose; granted the member or member with or without an exchange of (ii) is made for a commercial purpose, organization prior express invitation or consideration, if: but does not include or introduce an permission to deliver the advertisement. (i) the person has made a financial unsolicited advertisement or constitute Such express invitation or permission transaction or has a securities position, a telephone solicitation; or must be evidenced by a signed, written a money balance, or account activity (iii) is made to any person with whom statement that includes the facsimile with the member or member the member or member organization has number to which any advertisements organization, or at a clearing firm that an established business relationship at may be sent and clearly indicates the provides clearing services to such the time the call is made. recipient’s consent to receive such member or member organization, within (2) All artificial or prerecorded facsimile advertisements from the the previous 18 months immediately telephone messages shall: member or member organization. preceding the date of the telephone call;
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49963
(ii) the member or member entries relating to securities or funds in purchase of securities or related organization is the broker-dealer of the possession or control of the member. services. record for an account of the person (6) The terms ‘‘automatic telephone Amendments to Rule 440A are being within the previous 18 months dialing system’’ and ‘‘autodialer’’ mean proposed to incorporate regulations immediately preceding the date of the equipment which has the capacity to issued by the Federal Communications telephone call; or store or produce telephone numbers to Commission (‘‘FCC’’) and the Federal (iii) the person has contacted the be called using a random or sequential Trade Commission (‘‘FTC’’) relating to member or member organization to number generator and to dial such the implementation of the national do- inquire about, or make an application numbers. not-call registry and the amendments to regarding a product or service offered by (7) The term ‘‘broker-dealer of record’’ the Telephone Consumer Protection Act of 1991 (‘‘TCPA’’).6 the member or member organization refers to the broker-dealer identified on The Exchange proposes to delete current Rule 440A within the previous three months a customer’s account application or and adopt new language that immediately preceding the date of the accounts held directly at a mutual fund incorporates the requirements of the telephone call, which relationship has or variable insurance product issuer. FCC regulation, which is applicable to not been previously terminated by either (8) The term ‘‘unsolicited party. broker-dealers, and those sections of advertisement’’ means any material current Rule 440A that remain relevant. (B) A person’s specific do-not-call advertising the commercial availability request, as set forth in paragraph (a)(2) or quality of any products or services Background of this rule, terminates an established which is transmitted to any person business relationship for purposes of Both the FTC and FCC have without that person’s prior express established requirements for sellers and telemarketing and telephone solicitation invitation or permission. even if the person continues to do telemarketers to participate in a national business with the member or member * * * * * do-not-call registry. Beginning in June 2003, consumers have been able to enter organization. II. Self-Regulatory Organization’s their home telephone numbers into the (C) A person’s established business Statement of the Purpose of, and national do-not-call registry, which is relationship with a member or member Statutory Basis for, the Proposed Rule maintained by the FTC. Under rules of organization does not extend to the Change the FTC and FCC, sellers and member or member organization’s telemarketers generally are prohibited affiliated entities unless the person In its filing with the Commission, the from making telephone solicitations to would reasonably expect them to be Exchange included statements consumers whose numbers are listed in included, given the nature and type of concerning the purpose of, and basis for, the proposed rule change and discussed the national do-not-call registry. products or services offered by the In 1992 and 1995, the FCC and FTC affiliate and the identity of the affiliate. any comments it received on the proposed rule change. The text of these developed requirements for firms to Similarly, a person’s established maintain do-not-call lists and to limit business relationship with an affiliate of statements may be examined at the places specified in Item IV below. The the hours of telephone solicitations.7 a member or member organization does The NYSE adopted substantially similar not extend to the member or member Exchange has prepared summaries, set forth in Sections (A), (B), and (C) below, rules in 1995 and 1997.8 On July 2, organization unless the person would 2003, the SEC requested that the NYSE reasonably expect them to be included, of the most significant aspects of such statements. amend its telemarketing rules to include given the nature and type of products or a requirement for its members and services offered, and the identity of, the A. Self-Regulatory Organization’s member organizations to participate in member or member organization. Statement of the Purpose of, and the national do-not-call registry. (2) The terms ‘‘telemarketing’’ and Statutory Basis for, the Proposed Rule The NYSE is proposing to amend Rule ‘‘telephone solicitation’’ mean the Change 440A to incorporate the national do-not- initiation of a telephone call or message (1) Purpose for the purpose of encouraging the 6 Rules and Regulations Implementing the purchase or rental of, or investment in, Rule 440A currently states, in relevant Telephone Consumer Protection Act of 1991, FCC property, goods, or services, which is part, that no member, allied member or 03–153, adopted June 26, 2003, 68 FR 44144 (July transmitted to any person. 25, 2003) (‘‘Adopting Release’’). The FCC rules employee of a member or member address such diverse topics as abandoned calls and (3) The term ‘‘telephone facsimile organization shall make an outbound calls made on behalf of tax exempt non-profit machine’’ means equipment which has telephone call to the residence of any organizations. The NYSE’s proposed amendment the capacity to transcribe text or images person for the purpose of soliciting the does not contain these provisions as such matters (or both) from paper, into an electronic generally fall outside the purview of the investor purchase of securities or related services protection concerns underlying the proposed rule signal and to transmit that signal over at any time other than between 8 a.m. change. Nevertheless, members and member a regular telephone line, or to transcribe and 9 p.m. local time at the called organizations are subject to the FCC national do- text or images (or both) from an person’s location without the prior not-call rules and must therefore, comply with electronic signal received over a regular consent of the person; or make an those provisions or risk action by the FCC. 7 The TCPA required the SEC to promulgate telephone line onto paper. outbound telephone call to any person telemarketing rules substantially similar to those of (4) The term ‘‘personal relationship’’ for the purpose of soliciting the the FTC or direct self-regulatory organizations to do means any family member, friend, or purchase of securities or related services so, unless the SEC determined that such rules were acquaintance of the person making the without disclosing promptly and in a not in the interest of investor protection. See 47 call. U.S.C. 6102(d) (2003). clear and conspicuous manner to the 8 See SEC Rel. No. 34–35821 (June 7, 1995), 60 (5) The term ‘‘account activity’’ shall called person the following information: FR 31527 (June 14, 1995) (Order approving NYSE include, but not be limited to, (1) The identity of the caller and the rule requiring members to maintain firm-specific purchases, sales, interest credits or member or member organization; (2) the do-not-call lists), and SEC Rel. No. 34–38638 (May 14, 1997), 62 FR 27823 (May 21, 1997) (Order debits, charges or credits, dividend telephone number or address at which approving NYSE rule and interpretation creating payments, transfer activity, securities the caller may be contacted; and (3) that telemarketing time-of-day restrictions and receipts or deliveries, and/or journal the purpose of the call is to solicit the disclosure provisions).
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49964 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
call registry. Because broker-dealers are of the purpose of the call. The telephone or service within the preceding three subject to the FCC’s telemarketing rules, number may not be a 900 or similar months. the NYSE modeled its rule after the number. Members and member Safe Harbor FCC’s rules, with minor modifications organizations would be required to tailored to its members and member honor a request to be placed on a firm- The proposed rule provides that a organizations and the securities specific do-not-call list within 30 days member or employee of a member or industry.9 A similar rule was filed by or sooner if they are able to do so. A member organization will not be liable NASD with the SEC on August 18, 2003 firm-specific do-not-call request applies for a violation of the rule’s national do- and approved on January 20, 2004.10 only to the member or member not-call registry restriction if the member or employee of a member or Proposed Rule organization making the call, and not to any affiliated entity unless the customer member organization demonstrates that Congress enacted the TCPA in an reasonably would expect the affiliated the violation is the result of an error and effort to address a growing number of entity to be included, given the the member or member organization telephone marketing practices thought identification of the caller and the meets certain standards as part of its to be an invasion of consumer privacy product being advertised. routine business practice. These and even a risk to public safety. The standards involve: Written procedures statute restricts the use of automatic Exceptions From National Do-Not-Call to comply with national do-not-call telephone dialing systems, artificial and List Restriction rules; training of personnel to comply prerecorded messages, and telephone with national do-not-call rules; facsimile machines to send unsolicited The proposed rule provides recording and maintaining a list of advertisements. exceptions from the rule’s national do- telephone numbers that the member or not-call list restriction for (1) calls made member organization may not contact; ‘‘Telephone Solicitation’’ and to persons with whom the member or ‘‘Telemarketing’’ and using a documented process, member organization has an employing a version of the national do- The proposed rule defines both ‘‘established business relationship,’’ (2) not-call registry obtained from the ‘‘telemarketing’’ and ‘‘telephone calls made to persons from whom a administrator of the registry no more solicitation’’ to include the initiation of member or member organization has than 31 days prior to the date any call a telephone call or message transmitted obtained prior express invitation or is made, to prevent telephone to any person for the purpose of permission evidenced by a written solicitations to any telephone number encouraging the purchase of, or agreement, and (3) calls to persons with on any list established pursuant to the investment in, property, goods, or which a member, allied member, or do-not-call rules. services. employee of a member or member Wireless Telephone Numbers Time/Date and Other Requirements organization has a personal relationship. A ‘‘personal relationship’’ is a Members and member organizations Telephone solicitations and relationship between the person making are prohibited from making telephone telemarketing calls would only be the call and a family member, friend, or solicitations and telemarketing calls to permitted between the hours of 8 a.m. acquaintance. Members and member wireless telephone numbers. In and 9 p.m. local time at the called organizations should be aware that the addition, automatic telephone dialing party’s location subject to certain personal relationship exception applies systems and artificial or prerecorded exceptions. The time-of-day restriction solely to the rule’s national do-not-call voices used to contact wireless is similar to the one currently set out in registry restriction. Thus, if a person telephone numbers are also prohibited. Rule 440A. Telemarketing calls are with whom an employee of a member prohibited to numbers in the national Artificial/Prerecorded Messages has a personal relationship has do-not-call registry and on firm-specific requested to be placed on a member’s Members and member organizations do-not-call lists. Furthermore, members do-not-call list, the employee may not are prohibited from using artificial or and member organizations that take part prerecorded voice messages for in telemarketing activities would be make a telephone solicitation to the person on behalf of the member. commercial purposes unless: They have required to maintain policies, train permission, the message does not personnel, record and maintain do-not- ‘‘Established Business Relationship’’ include an unsolicited advertisement or call requests and identify the person constitute a telephone solicitation, or making the call, the name of the An ‘‘established business the message is transmitted to a person 11 member or member organization relationship’’ means a prior or with whom the member or member employer, an address or telephone existing relationship formed by a organization has an established business number at which the firm may be voluntary two-way communication relationship. All artificial or contacted, and inform the called party between a member or member prerecorded messages must state clearly organization and a person, with or the identity and telephone number of 9 Substantively, the Rules of the FCC and FTC are without an exchange of consideration, the member or member organization and very similar. Indeed, Congress has asked the FCC if: the person has made a financial to consult with the FTC to maximize consistency the name it is registered to conduct between their respective do-not-call rules. See The transaction or has a position in their business with the applicable State Do-Not-Call Implementation Act, 108 P.L. 10, 117 account within the previous 18 months Corporation Commission. The telephone Stat. 557 (March 11, 2003). immediately preceding the call; the number for the member or member 10 SEC Rel. No. 34–49055 (January 12, 2004), 69 member or member organization is the organization may not be a 900 or similar FR 2801 (January 20, 2004) (Order approving broker of record for the person’s account proposed rule change, and notice of filing and order number. granting accelerated approval to Amendment No. 1 within the preceding 18 months; or the relating to NASD’s telemarketing rules to require person has contacted the member or Telephone Facsimile Machines or members to participate in the national do-not-call member organization to inquire about or Computer Advertisements registry). See also SR–NASD–2004–174 (November make an application regarding a product 24, 2004) (Proposed amendment to NASD Rule Members and member organizations 2212 (Telemarketing) regarding the frequency of are prohibited from using a telephone updates from the national do-not-call registry). 11 See Adopting Release, supra note 6, at 44178. facsimile machine, computer or other
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49965
device to send an unsolicited public interest. The Exchange believes number should be included on the advertisement to a telephone facsimile the proposed rule change will enhance subject line if e-mail is used. To help the machine, computer or other device, investor protection by enabling persons Commission process and review your without the express permission of the who do not want to receive telephone comments more efficiently, please use recipient. Members and member solicitations from members or member only one method. The Commission will organizations must clearly mark, in a organizations to receive the protections post all comments on the Commission’s margin at the top or bottom of each page of the national do-not-call registry. Internet Web site (http://www.sec.gov/ of the transmission, the date and time it rules/sro/shtml). Copies of the B. Self-Regulatory Organization’s is sent and the identification of the submission, all subsequent Statement on Burden on Competition member or member organization amendments, all written statements sending the message and the telephone The Exchange does not believe that with respect to the proposed rule number of the sending machine. the proposed rule change will impose change that are filed with the any burden on competition not Commission, and all written Caller Identification Information necessary or appropriate in furtherance communications relating to the Members and member organizations of the purposes of the Exchange Act. proposed rule change between the that engage in telemarketing must Commission and any person, other than C. Self-Regulatory Organization’s transmit caller identification those that may be withheld from the information and are explicitly Statement on Comments on the public in accordance with the prohibited from blocking caller Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be identification information. Caller Members, Participants or Others available for inspection and copying in identification information must include The Exchange has neither solicited the Commission’s Public Reference either the Calling Party Number nor received written comments on the Room. Copies of the filing also will be (‘‘CPN’’) or the calling party’s billing proposed rule change. available for inspection and copying at the principal office of the NYSE. All number, also known as the Charge III. Date of Effectiveness of the comments received will be posted Number (‘‘ANI’’), and when available Proposed Rule Change and Timing for without change; the Commission does from the telephone carrier, the name of Commission Action the member or member organization. not edit personal identifying The telephone number provided must Within 35 days of the date of information from submissions. You permit any person to make a do-not-call publication of this notice in the Federal should submit only information that request during normal business hours. Register or within such longer period (i) you wish to make available publicly. All Provision of caller identification as the Commission may designate up to submissions should refer to File information does not eliminate the 90 days of such date if it finds such Number SR–NYSE–2004–73 and should requirement for a caller to verbally longer period to be appropriate and be submitted on or before September 15, supply identification information publishes its reasons for so finding, or 2005. during a call. These provisions are (ii) as to which the Exchange consents, For the Commission, by the Division of intended to promote appropriate caller the Commission will: Market Regulation, pursuant to delegated identification practices that comport (a) By order approve such proposed authority.15 with the FCC’s caller identification rule change, or Margaret H. McFarland, rules 12 and related guidance.13 (b) Institute proceedings to determine Deputy Secretary. whether the proposed rule change [FR Doc. E5–4653 Filed 8–24–05; 8:45 am] Outsourcing should be disapproved. BILLING CODE 8010–01–P The proposed rule provides that if a IV. Solicitation of Comments member or member organization uses Interested persons are invited to another entity to perform telemarketing SMALL BUSINESS ADMINISTRATION services on its behalf, the member or submit written data, views, and member organization remains arguments concerning the foregoing, Audit and Financial Management responsible for ensuring compliance including whether the proposed rule Advisory (AFMAC) Committee Meeting with all provisions of the rule. change, as amended, is consistent with the Exchange Act. Comments may be The U.S. Small Business (2) Statutory Basis submitted by any of the following Administration’s Audit and Financial The proposed rule change is methods: Management Advisory Committee consistent with the requirements of the (AFMAC) will meet on September 12, Electronic Comments Exchange Act and the rules and 2005 at 11 a.m. in the Administrator’s regulations thereunder applicable to a • Use the Commission’s Internet conference room. The AFMAC was national securities exchange, and in comment form (http://www.sec.gov/ established by the Administrator of the particular, with the requirements of rules/sro.shtml); or SBA to provide recommendation and Section 6(b)(5) 14 of the Exchange Act. • Send e-mail to rule- advice regarding the Agency’s financial Section 6(b)(5) requires, among other [email protected]. Please include File management including the financial things, that the rules of an exchange be Number SR–NYSE–2004–73 on the reporting process, systems of internal designed to promote just and equitable subject line. controls, audit process and process for monitoring compliance with relevant principles of trade, to remove Paper Comments impediments to and perfect the laws and regulations. • mechanism of a free and open market Send paper comments in triplicate Anyone wishing to attend must and national market system, and in to Jonathan G. Katz, Secretary, contact Thomas Dumaresq in writing or general, to protect investors and the Securities and Exchange Commission, by fax. Thomas Dumaresq, Chief 100 F Street, NE., Washington, DC Financial Officer, 409 3rd Street SW., 12 See 47 CFR 64.1601(e). 20549–9303. Washington, DC 20416, phone (202) 13 See Adopting Release, supra note 6, at 44167. All submissions should refer to File 14 15 U.S.C. 78f(b)(5). Number SR–NYSE–2004–73. This file 15 17 CFR 200.30–3(a)(12).
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49966 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
205–6506, fax: (202) 205–6869, e-mail: The SBA regulations imposing this these classes of products to the Federal [email protected]. requirement are found at 13 CFR government. The effect of a waiver Dated: August 17, 2005. 121.406 (b). Section 8(a)(17)(b)(iv) of the would be to allow otherwise qualified Act authorizes SBA to waive the regular dealers to supply the products of Carmen-Rosa Torres, Nonmanufacturer Rule for any ‘‘class of any domestic manufacturer on a Federal Director, Office of the Chief Financial Officer, products’’ for which there are no small contract set aside for small businesses, Office of Analysis, Planning and Accountability. business manufacturers or processors in service disabled veteran-owned small the Federal market. businesses or SBA’s 8(a) Business [FR Doc. 05–16921 Filed 8–24–05; 8:45 am] As implemented in SBA’s regulations Development Program. The purpose of BILLING CODE 8025–01–P at 13 CFE 121.1204, in order to be this notice is to solicit comments and considered available to participate in potential source information from the Federal market for a class of SMALL BUSINESS ADMINISTRATION interested parties. products, a small business manufacturer DATES: Comments and sources must be Small Business Size Standards: must have submitted a proposal for a submitted on or before September 9, Waiver of the Nonmanufacturer Rule contract solicitation or received a 2005. contract from the Federal government FOR FURTHER INFORMATION CONTACT: AGENCY: Small Business Administration within the last 24 months. The SBA Edith Butler, Program Analyst, by (SBA). defines ‘‘class of products’’ based on six telephone at (202) 619–0422; by FAX at ACTION: Notice of intent to waive the digit coding systems. The first coding 481–1788; or by e-mail at Nonmanufacturer Rule for Commercial system is the Office of Management and [email protected]. Laundry Equipment, including Budget North American Industry Commercial Laundry Manufacturing, Classification System (NAICS). The SUPPLEMENTARY INFORMATION: Section Dry Cleaning Equipment Manufacturing second is the Product and Service Code 8(a)(17) of the Small Business Act, (Act) and Pressing Machine Manufacturing. established by the Federal Procurement 15 U.S.C. 637(a)(17), requires that Data System. recipients of Federal contracts set aside SUMMARY: The U.S. Small Business The SBA is currently processing a for small businesses, service-disabled Administration (SBA) is considering request to waive the Nonmanufacturer veteran-owned small businesses, or granting a waiver of the Rule for Commercial Laundry SBA’s 8(a) Business Development Nonmanufacturer Rule for Commercial Equipment, including Commercial Program provide the product of a small Laundry Equipment, including Laundry Manufacturing, Dry Cleaning business manufacturer or processor, if Commercial Laundry Manufacturing, Equipment Manufacturing and Pressing the recipient is other than the actual Dry Cleaning Equipment Manufacturing, Machine Manufacturing, North manufacturer or processor. This and Pressing Machine Manufacturing. American Industry Classification requirement is commonly referred to as The basis for waivers is that no small System (NAICS) 333312. the Nonmanufacturer Rule. business manufacturers are supplying The public is invited to comment or The SBA regulations imposing this these classes of products to the Federal provide source information to SBA on requirement are found at 13 CFR government. The effect of a waiver the proposed waiver of the 121.406(b). Section 8(a)(17)(b)(iv) of the would be to allow otherwise qualified nonmanufacturer rule for this NAICS Act authorizes SBA to waive the regular dealers to supply the products of code. Nonmanufacturer Rule for any ‘‘class of any domestic manufacturer on a Federal products’’ for which there are no small Authority: 15 U.S.C. 637(A)(17). contract set aside for small businesses, business manufacturers or processors in service disabled veteran-owned small Dated: August 19, 2005. the Federal market. businesses or SBA’s 8(a) Business Dean Koppel, As implemented in SBA’s regulations Development Program. The purpose of Assistant Administrator, Office of Policy and at 13 CFE 121.1204, in order to be this notice is to solicit comments and Research. considered available to participate in potential source information from [FR Doc. 05–16916 Filed 8–24–05; 8:45 am] the Federal market for a class of interested parties. BILLING CODE 8025–01–P products, a small business manufacturer DATES: Comments and sources must be must have submitted a proposal for a submitted on or before September 9, contract solicitation or received a 2005. SMALL BUSINESS ADMINISTRATION contract from the Federal government within the last 24 months. The SBA FOR FURTHER INFORMATION CONTACT: Small Business Size Standards: defines ‘‘class of products’’ based on six Edith Butler, Program Analyst, by Waiver of the Nonmanufacturer Rule digit coding systems. The first coding telephone at (202) 619–0422; by FAX at system is the Office of Management and 481–1788; or by e-mail at AGENCY: Small Business Administration. Budget North American Industry [email protected]. ACTION: Notice of intent to waive the Nonmanufacturer Rule for Household Classification System (NAICS). The SUPPLEMENTARY INFORMATION: Section Laundry Equipment, including Laundry second is the Product and Service Code 8(a)(17) of the Small Business Act, (Act) Equipment (washers and dryers) and established by the Federal Procurement 15 U.S.C. 637(a)(17), requires that Household Type Manufacturing. Data System. recipients of Federal contracts set aside The SBA is currently processing a for small businesses, service-disabled SUMMARY: The U.S. Small Business request to waive the Nonmanufacturer veteran-owned small businesses, or Administration (SBA) is considering Rule for Household Laundry SBA’s 8(a) Business Development granting a waiver of the Equipment, including Laundry Program provide the product of a small Nonmanufacturer Rule for Household Equipment (washers and dryers) and business manufacturer or processor, if Laundry Equipment, including Laundry Household Type Manufacturing, North the recipient is other than the actual Equipment (washers and dryers) and American Industry Classification manufacturer or processor. This Household Type Manufacturing. System (NAICS) 335224. requirement is commonly referred to as The basis for waivers is that no small The public is invited to comment or the Nonmanufacturer Rule. business manufacturers are supplying provide source information to SBA on
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49967
the proposed waiver of the products’’ for which there are no small DATES: Comments and sources must be nonmanufacturer rule for this NAICS business manufacturers or processors in submitted on or before September 9, code. the Federal market. 2005. Authority: 15 U.S.C. 637(A)(17). As implemented in SBA’s regulations at 13 CFE 121.1204, in order to be FOR FURTHER INFORMATION CONTACT: Dated: August 19, 2005. considered available to participate in Edith Butler, Program Analyst, by Dean Koppel, the Federal market for a class of telephone at (202) 619–0422; by FAX at Assistant Administrator, Office of Policy and products, a small business manufacturer 481–1788; or by email at Research. must have submitted a proposal for a [email protected]. [FR Doc. 05–16917 Filed 8–24–05; 8:45 am] contract solicitation or received a BILLING CODE 8025–01–P contract from the Federal Government SUPPLEMENTARY INFORMATION: Section within the last 24 months. The SBA 8(a)(17) of the Small Business Act (Act), defines ‘‘class of products’’ based on six 15 U.S.C. 637(a)(17), requires that SMALL BUSINESS ADMINISTRATION digit coding systems. The first coding recipients of Federal contracts set aside for small businesses, service-disabled Small Business Size Standards: system is the Office of Management and veteran-owned small businesses, or Waiver of the Nonmanufacturer Rule Budget North American Industry Classification System (NAICS). The SBA’s 8(a) Business Development AGENCY: Small Business Administration second is the Product and Service Code Program provide the product of a small (SBA). established by the Federal Procurement business manufacturer or processor, if ACTION: Notice of intent to waive the Data System. the recipient is other than the actual Nonmanufacturer Rule for household The SBA is currently processing a manufacturer or processor. This cooking equipment. request to waive the Nonmanufacturer requirement is commonly referred to as Rule for Household Cooking Equipment, the Nonmanufacturer Rule. SUMMARY: The U.S. Small Business North American Industry Classification Administration (SBA) is considering The SBA regulations imposing this System (NAICS) 335221. granting a waiver of the requirement are found at 13 CFR The public is invited to comment or Nonmanufacturer Rule for Household 121.406(b). Section 8(a)(17)(b)(iv) of the provide source information to SBA on Cooking Equipment. The basis for Act authorizes SBA to waive the the proposed waiver of the waivers is that no small business Nonmanufacturer Rule for any ‘‘class of nonmanufacturer rule for this NAICS manufacturers are supplying these products’’ for which there are no small code. classes of products to the Federal business manufacturers or processors in Government. The effect of a waiver Authority: 15 U.S.C. 637(A)(17). the Federal market. would be to allow otherwise qualified Dated: August 19, 2005. As implemented in SBA’s regulations regular dealers to supply the products of Dean Koppel, at 13 CFE 121.1204, in order to be any domestic manufacturer on a Federal Assistant Administrator, Office of Policy and considered available to participate in contract set aside for small businesses, Research. the Federal market for a class of service disabled veteran-owned small [FR Doc. 05–16918 Filed 8–24–05; 8:45 am] products, a small business manufacturer businesses or SBA’s 8(a) Business BILLING CODE 8025–01–M must have submitted a proposal for a Development Program. The purpose of contract solicitation or received a this notice is to solicit comments and contract from the Federal Government potential source information from SMALL BUSINESS ADMINISTRATION within the last 24 months. The SBA interested parties. defines ‘‘class of products’’ based on six DATES: Comments and sources must be Small Business Size Standards: digit coding systems. The first coding submitted on or before September 9, Waiver of the Nonmanufacturer Rule system is the Office of Management and 2005. AGENCY: Small Business Administration. Budget North American Industry FOR FURTHER INFORMATION CONTACT: ACTION: Notice of intent to waive the Classification System (NAICS). The Edith Butler, Program Analyst, by Nonmanufacturer Rule for household second is the Product and Service Code telephone at (202) 619–0422; by FAX at refrigerator equipment. established by the Federal Procurement 481–1788; or by e-mail at Data System. [email protected]. SUMMARY: The U.S. Small Business The SBA is currently processing a SUPPLEMENTARY INFORMATION: Section Administration (SBA) is considering request to waive the Nonmanufacturer 8(a)(17) of the Small Business Act (Act), granting a waiver of the Rule for Household Refrigerator 15 U.S.C. 637(a)(17), requires that Nonmanufacturer Rule for Household Equipment, North American Industry recipients of Federal contracts set aside Refrigerator Equipment. Classification System (NAICS) 335222. for small businesses, service-disabled The basis for waivers is that no small The public is invited to comment or veteran-owned small businesses, or business manufacturers are supplying provide source information to SBA on SBA’s 8(a) Business Development these classes of products to the Federal Program provide the product of a small Government. The effect of a waiver the proposed waiver of the business manufacturer or processor, if would be to allow otherwise qualified nonmanufacturer rule for this NAICS the recipient is other than the actual regular dealers to supply the products of code. manufacturer or processor. This any domestic manufacturer on a Federal Authority: 15 U.S.C. 637(A)(17). contract set aside for small businesses, requirement is commonly referred to as Dated: August 19, 2005. the Nonmanufacturer Rule. service disabled veteran-owned small The SBA regulations imposing this businesses or SBA’s 8(a) Business Dean Koppel, requirement are found at 13 CFR Development Program. The purpose of Assistant Administrator, Office of Policy and 121.406(b). Section 8(a)(17)(b)(iv) of the this notice is to solicit comments and Research. Act authorizes SBA to waive the potential source information from [FR Doc. 05–16919 Filed 8–24–05; 8:45 am] Nonmanufacturer Rule for any ‘‘class of interested parties. BILLING CODE 8025–01–P
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49968 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
SMALL BUSINESS ADMINISTRATION digit coding systems. The first coding with the foreign owners. I also system is the Office of Management and determine that the exhibition or display Small Business Size Standards: Budget North American Industry of the additional exhibit objects at the Waiver of the Nonmanufacturer Rule Classification System (NAICS). The Houston Museum of Natural Science, second is the Product and Service Code Houston, TX, from on or about AGENCY: Small Business Administration. established by the Federal Procurement September 30, 2005, until on or about ACTION: Notice of intent to waive the Data System. February 12, 2006 (with one object Nonmanufacturer Rule for Commercial The SBA is currently processing a remaining for longer-term exhibit), at Cooking Equipment. request to waive the Nonmanufacturer the Gulf Coast Exploreum, Mobile, AL, SUMMARY: The U. S. Small Business Rule for Commercial Cooking from on or about March 8, 2006, until Administration (SBA) is considering Equipment, North American Industry on or about August 4, 2006, and at granting a waiver of the Classification System (NAICS) 333319. possible additional venues yet to be The public is invited to comment or Nonmanufacturer Rule for Commercial determined, is in the national interest. provide source information to SBA on Cooking Equipment. Public Notice of these Determinations is the proposed waiver of the The basis for waivers is that no small ordered to be published in the Federal nonmanufacturer rule for this NAICS business manufacturers are supplying Register. code. these classes of products to the Federal FOR FURTHER INFORMATION CONTACT: For government. The effect of a waiver Authority: 15 U.S.C. 637(A)(17). further information, including a list of would be to allow otherwise qualified Dated: August 19, 2005. the exhibit objects, contact Richard regular dealers to supply the products of Dean Koppel, Lahne, Attorney-Adviser, Office of the any domestic manufacturer on a Federal Assistant Administrator, Office of Policy and Legal Adviser, U.S. Department of State contract set aside for small businesses, Research. (telephone: 202/453–8058). The address service disabled veteran-owned small [FR Doc. 05–16920 Filed 8–24–05; 8:45 am] is U.S. Department of State, SA–44, 301 4th Street, SW., Room 700, Washington, businesses or SBA’s 8(a) Business BILLING CODE 8025–01–P Development Program. The purpose of DC 20547–0001. this notice is to solicit comments and Dated: August 19, 2005. potential source information from DEPARTMENT OF STATE Travis Horel, interested parties. Deputy Assistant Secretary for Professional [Public Notice 5174] DATES: Comments and sources must be and Cultural Exchanges, Department of State. submitted on or before September 9, Culturally Significant Objects Imported [FR Doc. 05–16937 Filed 8–24–05; 8:45 am] 2005. for Exhibition Determinations: BILLING CODE 4710–08–P FOR FURTHER INFORMATION CONTACT: ‘‘Assorted Egyptian Treasures for Edith Butler, Program Analyst, by Public Exhibition’’ telephone at (202) 619–0422; by FAX at TRADE AND DEVELOPMENT AGENCY AGENCY: 481–1788; or by e-mail at Department of State. [email protected]. ACTION: Notice, correction. Notice of Public Information Collection Requirements Submitted to OMB for SUMMARY: SUPPLEMENTARY INFORMATION: Section On June 2, 2005, notice was Review 8(a)(17) of the Small Business Act, (Act) published on page 32392 of the Federal 15 U.S.C. 637 (a)(17), requires that Register (volume 70, number 105) of AGENCY: United States Trade and recipients of Federal contracts set aside determinations made by the Department Development Agency. for small businesses, service-disabled of State pertaining to the exhibitions ACTION: Request for comments. veteran-owned small businesses, or ‘‘Mummy: the inside story’’ and SBA’s 8(a) Business Development ‘‘Treasures of Ancient Art from the SUMMARY: USTDA invites general public Program provide the product of a small British Museum.’’ The referenced notice and other Federal agencies to take this business manufacturer or processor, if is corrected as to additional objects to be opportunity to comment on the the recipient is other than the actual included in the the exhibition following proposed information manufacturer or processor. This ‘‘Mummy: the inside story.’’ Notice is collection, as required by the Paperwork requirement is commonly referred to as hereby given of the following Reduction Act of 1995. Comments are the Nonmanufacturer Rule. determinations: Pursuant to the requested concerning: (a) Whether the The SBA regulations imposing this authority vested in me by the Act of proposed collection of information is requirement are found at 13 CFR October 19, 1965 (79 Stat. 985; 22 U.S.C. necessary for the proper performance of 121.406(b). Section 8(a)(17)(b)(iv) of the 2459), Executive Order 12047 of March the functions of the agency, including Act authorizes SBA to waive the 27, 1978, the Foreign Affairs Reform and whether the information will have Nonmanufacturer Rule for any ‘‘class of Restructuring Act of 1998 (112 Stat. practical utility; (b) the accuracy of the products’’ for which there are no small 2681, et seq.; 22 U.S.C. 6501 note, et agency’s estimate of the burden of the business manufacturers or processors in seq.), Delegation of Authority No. 234 of proposed collection of information, the Federal market. October 1, 1999, Delegation of Authority including the validity of the As implemented in SBA’s regulations No. 236 of October 19, 1999, as methodology and assumptions used; (c) at 13 CFR 121.1204, in order to be amended, and Delegation of Authority ways to enhance the quality, utility, and considered available to participate in No. 257 of April 15, 2003 [68 FR 19875], clarity of the information to be the Federal market for a class of I hereby determine that the additional collected; and (d) ways to minimize the products, a small business manufacturer objects to be included in the exhibition burden of the collection of information must have submitted a proposal for a ‘‘Mummy: the inside story’’, imported on those who are to respond, including contract solicitation or received a from abroad for temporary exhibition through the use of appropriate contract from the Federal government within the United States, are of cultural automated, electronic, mechanical, or within the last 24 months. The SBA significance. The additional objects are other technological collection defines ‘‘class of products’’ based on six imported pursuant to loan agreements techniques or other forms of information
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49969
technology, e.g., permitting electronic 21 days after the filing of the Intended effective date: 5 August 2005. submission of responses. application. Renee V. Wright, DATES: Comments must be received by Docket Number: OST–2005–22028. Program Manager, Docket Operations, October 24, 2005. Date Filed: August 2, 2005. Federal Register Liaison. ADDRESSES: Copies of the subject form Parties: Members of the International [FR Doc. 05–16909 Filed 8–24–05; 8:45 am] Air Transport Association. and the request for review prepared for BILLING CODE 4910–62–P submission to OMB may be obtained Subject: from the Agency Submitting Officer. Montreal, 14–16 June 2005 (Memo Comments on the form should be 0113), TC12 North Atlantic Canada- DEPARTMENT OF TRANSPORTATION submitted to the Agency Submitting Europe Resolutions r1-r16. Officer. Minutes PTC12 CAN-EUR (Memo 0115), Office of the Secretary FOR FURTHER INFORMATION CONTACT: Technical Correction PTC12 North- Notice of Applications for Certificates Carolyn Hum, Attn: PRA, 1000 Wilson Atlantic Canada-Europe (Memo 0114). Tables: TC12 North Atlantic Canada- of Public Convenience and Necessity Boulevard, Suite 1600, Arlington, VA and Foreign Air Carrier Permits Filed 22209–3901; Tel.: (703) 875–4357, Fax: Europe Specified fares, Tables (Memo 0045). Under Subpart B (Formerly Subpart Q) (703) 875–4009, E-mail: [email protected]. During the Week Ending August 5, SUPPLEMENTARY INFORMATION: Intended effective date: 1 November 2005. 2005 Summary Collection Under Review Docket Number: OST–2005–22029. The following Applications for Type of Request: New collection. Date Filed: August 2, 2005. Certificates of Public Convenience and Title: Evaluation of USTDA Parties: Members of the International Necessity and Foreign Air Carrier Performance. Air Transport Association. Permits were filed under Subpart B Form Number: USTDA 1000E–2005a. Subject: (formerly Subpart Q) of the Department Frequency of Use: Annually for Mail Vote 448. of Transportation’s Procedural duration of project. TC12 North Atlantic USA-Europe Regulations (See 14 CFR 301.201 et. Type of Respondents: Business or (Memo 0183) (except between USA seq.). other for profit; Not-for-profit and Austria, Belgium, Czech The due date for Answers, institutions; Farms; Federal Republic, Finland, France, Germany, Conforming Applications, or Motions to Government. Iceland, Italy, Netherlands, Modify Scope are set forth below for Description of Affected Public: U.S. Scandinavia, Switzerland). each application. Following the Answer companies and other entities that Mail Vote 449. period DOT may process the application participate in USTDA-funded activities. TC12 North Atlantic USA-Europe by expedited procedures. Such Reporting Hours: 866 hours per year. (Memo 0184) (between USA and procedures may consist of the adoption Number of Responses: 2600 per year. Austria, Belgium, Czech Republic, of a show-cause order, a tentative order, Federal Cost: $350,000 per year. Finland, France, Germany, Italy, or in appropriate cases a final order Authority for Information Collection: Netherlands, Scandinavia, without further proceedings. Government Performance and Results Switzerland) r1–r34. Docket Number: OST–2005–22057. Act of 1993, 103 Public Law 62; 107 Minutes: TC12 North Atlantic Canada, Date Filed: August 4, 2005. Stat. 285. USA-Europe (Memo 0185), Montreal, Due Date for Answers, Conforming Abstract (Needs and Uses): USTDA 14–16 June 2005. Applications, or Motion to Modify and contractors will collect information Tables: TC12 North Atlantic USA- Scope: August 25, 2005. from various stakeholders on USTDA- Description: Application of Air Macau Europe Specified Fares Tables (Memo funded activities regarding Company Limited, requesting a foreign 0100). developmental impact and/or air carrier permit to engage in foreign air Intended effective date: 1 November commercial objectives as well as transportation of property and mail 2005. evaluate success regarding GPRA and between Macau and the United States. Docket Number: OST–2005–22030. OMB PART objectives. Date Filed: August 2, 2005. Renee V. Wright, Dated: August 22, 2005. Parties: Members of the International Program Manager, Docket Operations, Carolyn Hum, Air Transport Association. Federal Register Liaison. Administrative Officer. Subject: [FR Doc. 05–16910 Filed 8–24–05; 8:45 am] [FR Doc. 05–16947 Filed 8–24–05; 8:45 am] TC2 Within Middle East Expedited BILLING CODE 4910–62–P BILLING CODE 8040–01–U Resolution 002ac (Memo 0146). TC2 Europe-Middle East Expedited Resolution 002ab (Memo 0203). DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION Intended effective date: 15 August 2005. Docket Number: OST–2005–22038. Federal Aviation Administration Office of the Secretary Date Filed: August 2, 2005. [Summary Notice No. PE–2005–49] Parties: Members of the International Aviation Proceedings, Agreements Air Transport Association. Petitions for Exemption; Dispositions Filed the Week Ending August 5, 2005 Subject: of Petitions Issued The following Agreements were filed PTC3 0869 Dated 2 August 2005. AGENCY: Federal Aviation with the Department of Transportation Mail Vote 450—Resolution 010q. Administration (FAA), DOT. under Sections 412 and 414 of the TC3 Japan, Korea-South East Asia ACTION: Notice of disposition of prior Federal Aviation Act, as amended (49 Special Passenger Amending petition. U.S.C. 1382 and 1384) and procedures Resolution between Japan and China governing proceedings to enforce these (excluding Hong Kong SAR and SUMMARY: Pursuant to FAA’s rulemaking provisions. Answers may be filed within Macao SAR). provisions governing the application,
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49970 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
processing, and disposition of petitions without being equipped with an terrain awareness and warning system for exemption, part 11 of Title 14, Code approved terrain awareness and that meets the requirements for Class B of Federal Regulations (14 CFR), this warning ssytem that meets the equipment in Technical Standard notice contains the disposition of requirements for class B equipment in Order-C151. Denial, 4/15/2005, certain petitions previously received. Technical Standard Order-C151. Denial, Exemption No. 8539. The purpose of this notice is to improve 04/06/2005, Exemption No. 8534. Docket No.: FAA–2004–17062. the public’s awareness of, and Docket No.: FAA–2005–20558. Petitioner: Rohr, Inc. participation in, this aspect of FAA’s Petitioner: National Oceanic and Sections of 14 CFR Affected: 14 CFR regulatory activities. Neither publication Atmospheric Administration. 21.325(b)(3). of this notice nor the inclusion or Sections of 14 CFR Affected: 14 CFR Description of Relief Sought/ omission of information in the summary 91.223. Disposition: To permit Rohr, Inc., to is intended to affect the legal status of Description of Relief Sought/ issue export airworthiness approvals for any petition or its final disposition. Disposition: To permit the National Class II and Class III products at Rohr, FOR FURTHER INFORMATION CONTACT: Tim Oceanic and Atmospheric Inc. locations outside of the United Adams (202) 267–8033, Sandy Administration to operate two Rockwell States and 23 international locations. Buchanan-Sumter (202) 267–7271, or WP–3D aircraft and one Gulfstream G- Grant, 4/15/2005, Exemption No. John Linsenmeyer (202) 267–5174, IV after March 29, 2005, without being 8291A. Office of Rulemaking (ARM–1), Federal equipped with an approved terrain Docket No.: FAA–2002–13311 and Aviation Administration, 800 awareness and warning system that FAA–2005–20461. Independence Avenue, SW., meets the requirements for class B Petitioner: The Boeing Company. Washington, DC 20591. equipment in Technical Standard Sections of 14 CFR Affected: 14 CFR This notice is published pursuant to Order-C151. Denial, 04/07/2005, 21.325(b)(3). 14 CFR 11.85 and 11.91. Exemption No. 8537. Description of Relief Sought/ Issued in Washington, DC, on August 19, Docket No.: FAA–2005–20749. Disposition: To permit Boeing’s 2005. Petitioner: Centurion Air Cargo, Inc. Organizational Designated Anthony F. Fazio, Sections of 14 CFR Affected: 14 CFR Airworthiness Representatives to issue Director, Office of Rulemaking. 121.354(b) and (c). export airworthiness approvals for Class Description of Relief Sought/ II and Class III products manufactured Disposition of Petitions Disposition: To permit Centurion Air by Boeing-approved suppliers in 19 Docket No.: FAA–2003–14227. Cargo, Inc. (CAC), to operate certain foreign countries, as well as Taiwan. Petitioner: Kenmore Air Harbor, Inc. DC–10 aircraft without those aircraft Grant, 4/15/2005, Exemption No. Sections of 14 CFR Affected: being equipped with approved terrain 6860D. 14 CFR 135.154(b)(2). awareness and warning system (TAWS) Docket No.: FAA–2005–20106. Description of Relief Sought/ that meets the rquirements for Class A Petitioner: Cirrus Design Corporation. Disposition: To permit Kenmore Air equipment in Technical Standard Sections of 14 CFR Affected: 14 CFR Harbor, Inc., to operate four DHC–3 Order-C151; and to operate without an 45.29(b)(1). Turbine Otter aircraft that are not approved terrain situational awareness Description of Relief Sought/ equipped with an approved terrain display. This exemption will also Disposition: To permit Cirrus Design awareness and warning system that permit the switching of the deadlines Corporation to use 3- or 4-inch meets the requirements for Class B for installing TAWS in two of CAC’s nationality and registration marks for equipment in Technical Standard aircraft. Grant, 4/08/2005, Exemption certain aircraft undergoing production Order-C151. Denial, 04/01/2005, No. 8528B. test flights. Denial, 4/15/2005, Exemption No. 8532. Docket No.: FAA–2005–20554. Exemption No. 8543. Docket No.: FAA–2005–20770. Petitioner: Inter Island Airways, Inc. Docket No.: FAA–2003–15444. Petitioner: Arrow Air, Inc. Sections of 14 CFR Affected: 14 CFR Petitioner: America West Airlines, Sections of 14 CFR Affected: 14 CFR 135.154(b)(1) and (c). Inc. 121.354(b). Description of Relief Sought/ Sections of 14 CFR Affected: 14 CFR Description of Relief Sought/ Disposition: To permit Inter Island 121.434(c)(1)(ii). Disposition: To permit Arrow Air, Inc., Airways, Inc., to operate its Dornier 228 Description of Relief Sought/ to operate certain DC–10 aircraft aircraft after March 29, 2005, without Disposition: To permit America West without those aircraft being equipped having an approved terrain awareness Airlines, Inc., to substitute a qualified with an approved awareness and and warning system that meets the and authorized check airman or aircrew warning system that meets the requirements for Class A equipment in program designee for an Federal requirements for Class A equipment in Technical Standard Order-C151 Aviation Administration inspector to Technical Standard Order-C151; and to installed on those aircraft; and to observe a qualifying pilot in command operate without an approved terrain operate its aircraft without an approved who is completing initial or upgrade situational awareness display. Grant, terrain situational awareness display. training specified in § 121.424 during at 04/04/2005, Exemption No. 8527B. Grant, 4/08/2005, Exemption No. least one flight leg that includes a Docket No.: FAA–2004–19884. 8520A. takeoff and a landing. Grant, 4/19/2005, Petitioner: Orbital Sciences Docket No.: FAA–2005–20760. Exemption No. 8095A. Corporation. Petitioner: Southern Air Charter. Docket No.: FAA–2004–18751. Sections of 14 CFR Affected: 14 CFR Sections of 14 CFR Affected: 14 CFR Petitioner: Vaughn College of 91.223(b) and (c). 91.223(b). Aeronautics and Technology. Description of Relief Sought/ Description of Relief Sought/ Sections of 14 CFR Affected: 14 CFR Disposition: To permit Orbital Sciences Disposition: To permit Southern Air part 147, Appendix C. Corporation to operate a Lockheed L– Charter to operate its Beech 1900 Description of Relief Sought/ 1011 aircraft within and outside the aircraft after March 29, 2005, without Disposition: To permit Vaughn College United States after March 29, 2005, being equipped with an approved of Aeronautics and Technology to teach
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49971
the curriculum for airframe structures, command who is completing initial or 14 CFR part 135 aircraft maintained ‘‘solder, braze, gas-weld, and arc-weld upgrade training specified in § 121.424 under a continous airworthiness steel,’’ to Teaching level 1 instead of during at least one flight leg that maintenance program; and maintained level 2. Denial, 4/20/2005, Exemption includes a takeoff and a landing. Grant, in accordance with the requirements of No. 8541. 4/27/2005, Exemption No. 8088A. 135.411(a)(1) and (a)(2). Grant, 4/27/ Docket No.: FAA–2005–20829. Docket No.: FAA–2003–15395. 2005, Exemption No. 8474A. Petitioner: Hummel Aviation, LLC. Petitioner: Delta Air Lines, Inc. Sections of 14 CFR Affected: 14 CFR Sections of 14 CFR Affected: 14 CFR Docket No.: FAA–2005–20897. 135.143(c)(2). SFAR 58, paragraph 6(b)(3)(ii)(A). Petitioner: Hampton Roads Charter Description of Relief Sought/ Description of Relief Sought/ Service. Disposition: To permit Hummel Disposition: To permit Delta Air Lines, Sections of 14 CFR Affected: 14 CFR Aviation, LLC, to operate certain aircraft Inc., to meet line check requirements 135.143(c)(2). under part 135 without a TSO–C112 using an alternative line check program; (Mode S) transponder installed in the and to conduct an alternative line check Description of Relief Sought/ aircraft. Grant, 4/21/2005, Exemption program. Grant, 4/27/2005, Exemption Disposition: To permit Hampton Roads No. 8548. No. 8107A. Charter Service to operate certain Docket No.: FAA–2002–14012. Docket No.: FAA–2001–8936. aircraft under part 135 without a TSO– Petitioner: The Blue Angels. Petitioner: Mr. Robert P. Lavery. C112 (Mode S) transponder installed in Sections of 14 CFR Affected: 14 CFR Sections of 14 CFR Affected: 14 CFR the aircraft. Grant, 4/28/2005, 91.117(a) and (b), 91.119(c), and 91.109(a) and (b)(3). Exemption No. 8545. 91.303(c), (d), and (e). Description of Relief Sought/ Docket No.: FAA–2004–19520. Description of Relief Sought/ Disposition: To permit Mr. Robert P. Disposition: To permit The Blue Angels Lavery to conduct certain flight Petitioner: Unison Industries. to conduct demonstration rehearsals instruction and simulated instrument Sections of 14 CFR Affected: 14 CFR involving low-level, high-speed, and flights to meet the recent instrument 45.15(b). aerobatic flight, subject to certain experience requirements in certain Description of Relief Sought/ conditions and limitations; and to Beechcraft airplanes equipped with a Disposition: To permit Unison include the airspace directly above functioning throw-over control wheel in Industries to identify those parts that Class C and D airspace at NAS place of functioning dual controls. Pensacola, Florida; NAS Choctaw, Grant, 4/27/2005, Exemption No. 7571B. can be marked with a tag to contain a reference to a catalog specifying that Florida; and El Centro, California, below Docket No.: FAA–2002–14119. part’s installation eligibility, in those 10,000 feet mean sea level (MSL) as Petitioner: Department of the Navy, described in the conditions and United States Marine Corps. situations where that information must limitations. Grant, 4/27/2005, Sections of 14 CFR Affected: 14 CFR be listed on the tag. Denial, 4/28/2005, Exemption No. 4504H. 91.209(a)(1) and (2). Exemption No. 8544. Docket No.: FAA–2002–13688. Description of Relief Sought/ Docket No.: FAA–2005–20857. Petitioner: Promech, Inc., d.b.a Disposition: To permit the Department Petitioner: The Boeing Company. Promech Air. of the Navy, United States Marine Corps Sections of 14 CFR Affected: 14 CFR to conduct helicopter night-vision Sections of 14 CFR Affected: 14 CFR 135.203(a)(1). device flight training operations without 21.325(b)(3). Description of Relief Sought/ lighted aircraft position lights. Grant, 4/ Description of Relief Sought/ Disposition: To permit Promech, Inc., 27/2005, Exemption No. 8028A. Disposition: To permit Boeing’s d.b.a Promech Air, to conduct Docket No.: FAA–2001–8878. Organizational Designated operations under visual flight rules Petitioner: American Airlines. Airworthiness Representatives to issue outside controlled airspace, over water, Sections of 14 CFR Affected: 14 CFR export airworthiness approvals for Class at an altitude below 500 feet above the 121.434(c)(3)(ii). II and Class III products manufactured surface. Grant, 4/27/2005, Exemption Description of Relief Sought/ by Boeing-approved suppliers in India, No. 8108A. Disposition: To permit American Greece, South Korea, and Turkey. Airlines to substitute a qualified and Docket No.: FAA–2005–20708. Denial, 4/29/2005, Exemption No. 8549. Petitioner: World Airways, Inc. authorized check airman in place of an Sections of 14 CFR Affected: 14 CFR FAA inspector to observe a qualifying Docket No.: FAA–2001–9030. 121.665 and 121.697(a)(1), (b), and (c). pilot in command (PIC) while that PIC Petitioner: State of Alaska, Description of Relief Sought/ is performing prescribed duties during Department of Natural Resources, Disposition: To permit World Airways, at least one flight leg that includes a Division of Forestry. Inc., to substitute a computer takeoff and a landing when completing application signature for the signed load initial or upgrade training specified in Sections of 14 CFR Affected: 14 CFR manifest required by these sections. § 121.434. Grant, 4/27/2005, Exemption 91.119(b) and (c). Grant, 4/27/2005, Exemption No. 8547. No. 6916C. Description of Relief Sought/ Docket No.: FAA–2000–8095. Docket No.: FAA–2005–20038. Disposition: To permit pilots employed Petitioner: Scenic Airlines, Inc. Petitioner: Era Helicopters LLC. by the State of Alaska, Department of Sections of 14 CFR Affected: 14 CFR Sections of 14 CFR Affected: 14 CFR Natural Resources, Division of Forestry 121.434(c)(1)(ii). 91.411(b) and 91.413(c). (DOF) or acting under the DOF contract Description of Relief Sought/ Description of Relief Sought/ to conduct certain firefighting Disposition: To permit Scenic Airlines, Disposition: To permit Era Helicopters operations. Grant, 4/29/2005, Inc., to substitute a qualified and LLC to perform air traffic control Exemption No. 4063. authorized check airman or aircrew transponder tests and inspections and program designee for an FAA inspector altimeter system and altimeter reporting [FR Doc. 05–16922 Filed 8–24–05; 8:45 am] to observe a qualifying pilot in equipment tests and inspections for its BILLING CODE 4910–13–P
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49972 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
DEPARTMENT OF TRANSPORTATION mistakenly attempt to use the DEPARTMENT OF TRANSPORTATION mislabeled end fittings with a hose, National Highway Traffic Safety instead of plastic tubing, the National Highway Traffic Safety Administration incompatibility would be obvious Administration [Docket No. NHTSA–2005–22118; Notice 1] because the diameters would not [Docket No. NHTSA–2005–22176; Notice 1] match.’’ Eaton states that therefore, Eaton Aeroquip, Inc., Receipt of ‘‘there is no potential that the Nissan Motor Company and Nissan Petition for Decision of mislabeled end fittings could be used North America, Receipt of Petition for Inconsequential Noncompliance improperly, and there could be no Decision of Inconsequential resulting issue of motor vehicle safety.’’ Noncompliance Eaton Aeroquip, Inc. (Eaton) has determined that the end fittings that it Interested persons are invited to Nissan Motor Company, Ltd. and produced for nylon air brake hoses do submit written data, views, and Nissan North America, Inc. (Nissan) not comply with S7.2.2(d) of 49 CFR arguments on the petition described have determined that certain vehicles 571.106, Federal Motor Vehicle Safety above. Comments must refer to the that they produced in 2004 through Standard (FMVSS) No. 106, ‘‘Brake docket and notice number cited at the 2005 do not comply with S9.2.2 of 49 hoses.’’ Eaton has filed an appropriate beginning of this notice and be CFR 571.225, Federal Motor Vehicle report pursuant to 49 CFR Part 573, submitted by any of the following Safety Standard (FMVSS) No. 225, ‘‘Defect and Noncompliance Reports.’’ methods. Mail: Docket Management ‘‘Child restraint anchorage systems.’’ Pursuant to 49 U.S.C. 30118(d) and Facility, U.S. Department of Nissan has filed an appropriate report 30120(h), Eaton has petitioned for an Transportation, Nassif Building, Room pursuant to 49 CFR part 573, ‘‘Defect exemption from the notification and PL–401, 400 Seventh Street, SW., and Noncompliance Reports.’’ remedy requirements of 49 U.S.C. Washington, DC, 20590–0001. Hand Pursuant to 49 U.S.C. 30118(d) and 30120(h), Nissan has petitioned for an Chapter 301 on the basis that this Delivery: Room PL–401 on the plaza exemption from the notification and noncompliance is inconsequential to level of the Nassif Building, 400 remedy requirements of 49 U.S.C. motor vehicle safety. Seventh Street, SW., Washington, DC. It This notice of receipt of Eaton’s Chapter 301 on the basis that this is requested, but not required, that two noncompliance is inconsequential to petition is published under 49 U.S.C. copies of the comments be provided. 30118 and 30120 and does not represent motor vehicle safety. The Docket Section is open on any agency decision or other exercise of This notice of receipt of Nissan’s weekdays from 10 a.m. to 5 p.m. except judgment concerning the merits of the petition is published under 49 U.S.C. Federal Holidays. Comments may be petition. 30118 and 30120 and does not represent Affected are a total of approximately submitted electronically by logging onto any agency decision or other exercise of 7,784,614 end fittings produced from the Docket Management System Web judgment concerning the merits of the 2001 to June 30, 2005, plus an site at http://dms.dot.gov. Click on petition. indeterminate number of end fittings ‘‘Help’’ to obtain instructions for filing Affected are a total of approximately produced prior to 2001 for which the document electronically. Comments 24,655 model year (MY) 2005 Infiniti FX records are not available (Eaton may be faxed to 1–202–493–2251, or vehicles manufactured from September acquired the end fitting manufacturing may be submitted to the Federal 1, 2004 to July 13, 2005; 167 MY 2005 business on November 1, 2002). eRulemaking Portal: go to http:// Infiniti Q45 vehicles with rear power S7.2.2(d) of FMVSS No. 106 requires www.regulations.gov. Follow the online seats manufactured from September 1, that each fitting shall be etched, instructions for submitting comments. 2004 to June 30, 2005; and 65,361 MY 2005 Nissan Maxima vehicles embossed, or stamped with The petition, supporting materials, manufactured from September 1, 2004 (d) The * * * outside diameter of the and all comments received before the to July 11, 2005. plastic tubing to which the fitting is properly close of business on the closing date S9.2.2 of FMVSS No. 225 requires: attached expressed in inches or fractions of indicated below will be filed and will be inches or in millimeters followed by the considered. All comments and With adjustable seats adjusted as described letters OD * * * in S9.2.3, each lower anchorage bar shall be supporting materials received after the The subject end fittings are missing located so that a vertical transverse plane closing date will also be filed and will tangent to the front surface of the bar is (a) the letters OD from their labels. be considered to the extent possible. Not more than 70 mm behind the Eaton believes that the When the petition is granted or denied, corresponding point Z of the CRF [child noncompliance is inconsequential to notice of the decision will be published restraint fixture], measured parallel to the motor vehicle safety and that no in the Federal Register pursuant to the bottom surface of the CRF and in a vertical corrective action is warranted. Eaton authority indicated below. longitudinal plane, while the CRF is pressed states that the purpose of the letters OD against the seat back by the rearward on the label is to indicate that the Comment closing date: September 26, application of a horizontal force of 100 N at measurement refers to the outside 2005. point A on the CRF. diameter of a plastic tube as opposed to Authority: 49 U.S.C. 30118, 30120: The lower anchorage bars in the the inside diameter. Eaton points out Delegations of authority at CFR 1.50 and subject vehicles do not comply with this that if the end user was to assume that 501.8. requirement. Nissan states that tests the measurement referred to the inside performed for NHTSA by MGA, Inc. Issued on: August 19, 2005. diameter because of the absence of the revealed a noncompliance in a 2005 letters OD, it ‘‘would be physically Ronald L. Medford, Infiniti FX, and Nissan subsequently impossible, for example, to insert a 1⁄2 Senior Associate Administrator for Vehicle investigated its vehicle models on this inch inside diameter hose into an end Safety. issue. fitting made for 1⁄2 inch outside [FR Doc. 05–16860 Filed 8–24–05; 8:45 am] Nissan believes that the diameter plastic tubing.’’ According to BILLING CODE 4910–59–P noncompliance is inconsequential to Eaton, ‘‘if an end-user were to motor vehicle safety and that no
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49973
corrective action is warranted. Nissan submitted electronically by logging onto certification and marking, of FMVSS provides several bases for this assertion. the Docket Management System Web No. 205 and the referenced Section 7 of First, Nissan states that the vehicles site at http://dms.dot.gov. Click on ANSI/SAE Z26.1–1996 specify that the do comply with the alternative ‘‘Help’’ to obtain instructions for filing required identification and certification requirements S15 of FMVSS No. 225, the document electronically. Comments markings must be located on the which were available as a compliance may be faxed to 1–202–493–2251, or glazing. On the subject vehicles, the option until September 1, 2004. may be submitted to the Federal required markings are present, but they Second, Nissan states that the extent eRulemaking Portal: go to http:// are located on the frame of the Targa of the noncompliance is not significant. www.regulations.gov. Follow the online roof assembly, rather than on the glazing Specifically, it says: instructions for submitting comments. portion of the roof assembly. The left and right lower anchorages in the The petition, supporting materials, General Motors believes that the MY 2005 FX vehicle were located 76 mm and and all comments received before the noncompliance is inconsequential to 83 mm behind Point Z, respectively, when close of business on the closing date motor vehicle safety and that no tested by MGA under the procedures of indicated below will be filed and will be corrective action is warranted. The S9.2.2. During its subsequent investigation considered. All comments and petitioner states: using the MGA CRF, Nissan measured the supporting materials received after the lower anchorage location in the left and right —The subject glazing meets all applicable rear seats in five other FX vehicles. The closing date will also be filed and will performance requirements of FMVSS No. average distance from Point Z was 78 mm, be considered to the extent possible. 205. There is no safety performance and the greatest distance was 81 mm. The When the petition is granted or denied, implication associated with this technical average distance for the four 5-seat Nissan notice of the decision will be published noncompliance. Maxima vehicles tested was 76 mm, and the in the Federal Register pursuant to the —The certifications markings required by greatest distance was 81 mm. The average authority indicated below. FMVSS No. 205 are provided on the frame distance for the three 4-seat Maxima vehicles of the subject Corvette Targa roof Comment closing date: September 26, assemblies. This noncompliance relates tested was 92 mm, and the greatest distance 2005. was 94 mm. At most, this reflects a distance only to the location of the required of less than an inch beyond the distance Authority: 49 U.S.C. 30118, 30120; markings, not to their presence. specified in the standard, and the difference delegations of authority at CFR 1.50 and —Once assembled, the Targa roof frame and is less than one-half of an inch for the FX and 501.8. glazing are indivisible. For in-service the 5-seat Maxima models. repair, the roof assembly (glazing mounted Issued on: August 19, 2005. in frame) is serviced as a unit. There is no Third, Nissan conducted a survey Ronald L. Medford, service provision to replace only the frame program to assess the ease of installing Senior Associate Administrator for Vehicle or only the glazing. As a practical matter, CRSs in these vehicles, and set out the Safety. therefore, marking the frame is functionally results as an attachment to its petition. [FR Doc. 05–16861 Filed 8–24–05; 8:45 am] equivalent to marking the glazing. —Given the small volume of service parts Nissan points out that there were few BILLING CODE 4910–59–P unsuccessful attempts and says that the that will be needed and the high results ‘‘clearly demonstrate that the investment cost required to manufacture noncompliance * * * does not the subject Corvette roof assemblies, it is DEPARTMENT OF TRANSPORTATION probable that all service parts will be adversely affect the ease of installation manufactured by the same supplier as the of the CRSs * * *’’ Nissan also National Highway Traffic Safety original equipment parts. Accordingly, indicates that the latchings were Administration there is virtually no chance of uncertainty accomplished in an average time of [Docket No. NHTSA 2005–21675; Notice 2] about the manufacturer of the subject parts, between 22 seconds and 39 seconds. should a need to identify the manufacturer Fourth, Nissan states that ‘‘other General Motors Corporation, Grant of arise in the future. vehicle characteristics in these models Petition for Decision of —GM is not aware of any crashes, injuries, customer complaints or field reports compensate for the lower anchorage Inconsequential Noncompliance location to allow for ease of associated with this condition. installation,’’ including seat foam that General Motors Corporation (General General Motors also states that compresses easily and suppleness of Motors) has determined that certain NHTSA has previously granted leather seats. model year 2005 vehicles that it inconsequential noncompliance Interested persons are invited to produced do not comply with S6 of 49 petitions involving the omission of submit written data, views, and CFR 571.205, Federal Motor Vehicle FMVSS No. 205 markings and provides arguments on the petition described Safety Standard (FMVSS) No. 205, the following examples: Western Star above. Comments must refer to the ‘‘Glazing materials.’’ Pursuant to 49 Trucks (63 FR 66232, 12/1/1998), Ford docket and notice number cited at the U.S.C. 30118(d) and 30120(h), General Motor Company (64 FR 70116, 12/15/ beginning of this notice and be Motors has petitioned for a 1999), Toyota Motor Corporation (68 FR submitted by any of the following determination that this noncompliance 10307, 3/4/2003), and Freightliner LLC methods. Mail: Docket Management is inconsequential to motor vehicle (68 FR 65991, 11/24/2003). Facility, U.S. Department of safety and has filed an appropriate NHTSA agrees with General Motors Transportation, Nassif Building, Room report pursuant to 49 CFR Part 573, that the noncompliance is PL–401, 400 Seventh Street, SW., ‘‘Defect and Noncompliance Reports.’’ inconsequential to motor vehicle safety. Washington, DC 20590–0001. Hand Notice of receipt of a petition was The glazing meets all applicable Delivery: Room PL–401 on the plaza published, with a 30-day comment performance requirements of FMVSS level of the Nassif Building, 400 period, on June 30, 2005, in the Federal No. 205. The certifications markings Seventh Street, SW., Washington, DC. It Register (70 FR 37893). NHTSA required by FMVSS No. 205 are is requested, but not required, that two received no comments. provided on the frame of the subject copies of the comments be provided. Affected are a total of approximately Corvette Targa roof assemblies. The roof The Docket Section is open on 7,326 model year 2005 Chevrolet frame and glazing are indivisible, and weekdays from 10 a.m. to 5 p.m. except Corvette coupes equipped with for in-service repair, the roof assembly Federal Holidays. Comments may be removable transparent Targa roofs. S6, (glazing mounted in frame) is serviced
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49974 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
as a unit. Therefore, there should not be (transmittal letter), 49 CFR 1105.12 after the EA becomes available to the any problem obtaining the appropriate (newspaper publication), and 49 CFR public. replacement glazing. 1152.50(d)(1) (notice to governmental Environmental, historic preservation, General Motors is correct that the four agencies) have been met. public use, or trail use/rail banking petitions it cited, from Western Star As a condition to this exemption, any conditions will be imposed, where Trucks, Ford Motor Company, Toyota employee adversely affected by the appropriate, in a subsequent decision. Motor Corporation, and Freightliner abandonment shall be protected under Pursuant to the provisions of 49 CFR LLC, were granted by NHTSA based on Oregon Short Line R. Co.— 1152.29(e)(2), CSXT shall file a notice of this rationale. General Motors has Abandonment—Goshen, 360 I.C.C. 91 consummation with the Board to signify corrected the problem. (1979). To address whether this that it has exercised the authority In consideration of the foregoing, condition adequately protects affected granted and fully abandoned the line. If NHTSA has decided that the petitioner employees, a petition for partial consummation has not been effected by has met its burden of persuasion that revocation under 49 U.S.C. 10502(d) CSXT’s filing of a notice of the noncompliance described is must be filed. consummation by August 25, 2006, and inconsequential to motor vehicle safety. Provided no formal expression of there are no legal or regulatory barriers Accordingly, General Motors’s petition intent to file an offer of financial to consummation, the authority to is granted and the petitioner is assistance (OFA) has been received, this abandon will automatically expire. exempted from the obligation of exemption will be effective on Board decisions and notices are providing notification of, and a remedy September 24, 2005, unless stayed available on our Web site at http:// for, the noncompliance. pending reconsideration. Petitions to www.stb.dot.gov. stay that do not involve environmental Authority: (49 U.S.C. 30118, 30120; Decided: August 18, 2005. issues,1 formal expressions of intent to delegations of authority at CFR 1.50 and By the Board, David M. Konschnik, 501.8) file an OFA under 49 CFR Director, Office of Proceedings. 1152.27(c)(2),2 and trail use/rail banking Vernon A. Williams, Issued on: August 19, 2005. requests under 49 CFR 1152.29 must be Ronald L. Medford, filed by September 2, 2005. Petitions to Secretary. Senior Associate Administrator for Vehicle reopen or requests for public use [FR Doc. 05–16835 Filed 8–24–05; 8:45 am] Safety. conditions under 49 CFR 1152.28 must BILLING CODE 4915–01–P [FR Doc. 05–16862 Filed 8–24–05; 8:45 am] be filed by September 14, 2005, with the BILLING CODE 4910–59–P Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423– DEPARTMENT OF THE TREASURY 0001. DEPARTMENT OF TRANSPORTATION A copy of any petition filed with the Internal Revenue Service Board should be sent to CSXT’s Third-Party Disclosure in IRS Surface Transportation Board representative: Louis E. Gitomer, Esq., Regulations; Proposed Collection; Ball Janik LLP, 1455 F Street, NW., [STB Docket No. AB–55 (Sub–No. 659X)] Comment Request for Regulation Suite 225, Washington, DC 20005. CSX Transportation, Inc.— If the verified notice contains false or Project Abandonment Exemption—in Allegany misleading information, the exemption AGENCY: Internal Revenue Service (IRS), County, MD is void ab initio. Treasury. CSXT has filed environmental and CSX Transportation, Inc. (CSXT), has ACTION: Notice and request for historic reports which address the comments. filed a notice of exemption under 49 effects, if any, of the abandonment on CFR 1152 Subpart F—Exempt the environment and historic resources. SUMMARY: The Department of the Abandonments to abandon an 8.54-mile SEA will issue an environmental Treasury, as part of its continuing effort line of railroad on its Southern Region, assessment (EA) by August 30, 2005. to reduce paperwork and respondent Huntington Division East, Georges Creek Interested persons may obtain a copy of burden, invites the general public and Subdivision, between milepost BAI 27.0 the EA by writing to SEA (Room 500, other Federal agencies to take this near Morrison and milepost BAI 18.46 Surface Transportation Board, opportunity to comment on proposed at the end of the track near Carlos, in Washington, DC 20423–0001) or by and/or continuing information Allegany County, MD. The line traverses calling SEA, at (202) 565–1539. collections, as required by the United States Postal Service Zip Codes [Assistance for the hearing impaired is Paperwork Reduction Act of 1995, 21532, 21539, and 21521. available through the Federal Public Law 104–13 (44 U.S.C. CSXT has certified that: (1) No local Information Relay Service (FIRS) at 1– 3506(c)(2)(A)). Currently, the IRS is traffic has moved over the line for at 800–877–8339.] Comments on soliciting comments concerning existing least 2 years; (2) any overhead traffic on environmental and historic preservation regulations, Third-Party Disclosure the line can be rerouted over other lines; matters must be filed within 15 days Requirements in IRS Regulations. (3) no formal complaint filed by a user of rail service on the line (or by a state DATES: Written comments should be 1 The Board will grant a stay if an informed received on or before October 24, 2005 or local government entity acting on decision on environmental issues (whether raised behalf of such user) regarding cessation by a party or by the Board’s Section of to be assured of consideration. of service over the line either is pending Environmental Analysis (SEA) in its independent ADDRESSES: Direct all written comments investigation) cannot be made before the to Glenn P. Kirkland, Internal Revenue with the Surface Transportation Board exemption’s effective date. See Exemption of Out- or with any U.S. District Court or has of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any Service, room 6516, 1111 Constitution been decided in favor of complainant request for a stay should be filed as soon as possible Avenue NW., Washington, DC 20224. within the 2-year period; and (4) the so that the Board may take appropriate action before FOR FURTHER INFORMATION CONTACT: the exemption’s effective date. requirements at 49 CFR 1105.7 2 Each OFA must be accompanied by the filing Requests for additional information or (environmental reports), 49 CFR 1105.8 fee, which currently is set at $1,200. See 49 CFR copies of the regulations should be (historic reports), 49 CFR 1105.11 1002.2(f)(25). directed to Allan Hopkins, at (202) 622–
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 49975
6665, or at Internal Revenue Service, Approved: April 19, 2005. information will have practical utility; room 6516, 1111 Constitution Avenue Allan Hopkins, (2) the accuracy of VHA’s estimate of NW., Washington, DC 20224, or through IRS Reports Clearance Officer. the burden of the proposed collection of the internet, at [FR Doc. E5–4654 Filed 8–24–05; 8:45 am] information; (3) ways to enhance the [email protected]. BILLING CODE 4830–01–P quality, utility, and clarity of the SUPPLEMENTARY INFORMATION: Title: information to be collected; and (4) Third-Party Disclosure requirements in ways to minimize the burden of the IRS Regulations. DEPARTMENT OF VETERANS collection of information on OMB Number: 1545–1466. AFFAIRS respondents, including through the use Abstract: These existing regulations of automated collection techniques or [OMB Control No. 2600–0260] contain third-party disclosure the use of other forms of information technology. requirements that are subject to the Proposed Information Collection Paperwork Reduction Act of 1995. Titles: a. Request for and Activity: Proposed Collection; Authorization to Release Medical Current Actions: There are no changes Comment Request being made to these regulations at this Records or Health Information, VA time. AGENCY: Veterans Health Form 10–5345. Type of Review: Extension of Administration, Department of Veterans b. Individual’s Request for a Copy of currently approved collection. Affairs. their Own Health Information, VA Form 10–5345a. Affected Public: Individuals or ACTION: Notice. households, business or other for-profit OMB Control Number: 2600–0260. Type of Review: Revision of a organizations, and not-for-profit SUMMARY: The Veterans Health currently approved collection. institutions. Administration (VHA) is announcing an Abstract: a. VA Form 10–5345 is used Estimated Number of Respondents: opportunity for public comment on the to obtain written consent from a patient 245,073,905. proposed collection of certain before information concerning his or her Estimated Time Per Respondent: information by the agency. Under the treatment for alcoholism or alcohol Varies. Paperwork Reduction Act (PRA) of abuse, drug abuse, sickle cell anemia, or Estimated Total Annual Burden 1995, Federal agencies are required to infection with the human Hours: 68,885,183. publish notice in the Federal Register immunodeficiency virus (HIV) can be The following paragraph applies to all concerning each proposed collection of disclosed to private insurance of the collections of information covered information, including each proposed companies, physicians and other third by this notice: revision of a currently approved parties. b. Patients complete VA Form An agency may not conduct or collection, and allow 60 days for public 10–5345 to request a copy of their sponsor, and a person is not required to comment in response to the notice. This medical records from VA. respond to, a collection of information notice solicits comments on the need to Affected Public: Business or other for unless the collection of information obtain written consent to disclose profit, Individuals or households, and displays a valid OMB control number. medical treatment information to not for profit institutions. Books or records relating to a individuals or third parties. Estimated Total Annual Burden collection of information must be DATES: Written comments and a. VA Form 10–5345—16,667 hours. retained as long as their contents may recommendations on the proposed b. VA Form 10–5345a—16,667 hours. become material in the administration collection of information should be Estimated Average Burden Per of any internal revenue law. Generally, received on or before October 24, 2005. Respondent: tax returns and tax return information ADDRESSES: Submit written comments a. VA Form 10–5345—2 minutes. are confidential, as required by 26 on the collection of information to Ann b. VA Form 10–5345a—2 minutes. U.S.C. 6103. Bickoff, Veterans Health Administration Frequency of Response: On occasion. Request for Comments: Comments (193E1), Department of Veterans Affairs, Estimated Number of Respondents: submitted in response to this notice will 810 Vermont Avenue, NW., a. VA Form 10–5345—500,000. be summarized and/or included in the Washington, DC 20420 or e-mail b. VA Form 10–5345a—500,000. request for OMB approval. All [email protected]. Please refer to Dated: August 11, 2005. comments will become a matter of ‘‘OMB Control No. 2600–0260’’ in any By direction of the Secretary. public record. Comments are invited on: correspondence. (a) Whether the collection of Denise McLamb, information is necessary for the proper FOR FURTHER INFORMATION CONTACT: Ann Program Analyst, Records Management performance of the functions of the Bickoff at (202) 273–8310. Service. agency, including whether the SUPPLEMENTARY INFORMATION: Under the [FR Doc. E5–4634 Filed 8–24–05; 8:45 am] information shall have practical utility; PRA of 1995 (Pub. L. 104–13; 44 U.S.C. BILLING CODE 8320–01–P (b) the accuracy of the agency’s estimate 3501–3521), Federal agencies must of the burden of the collection of obtain approval from the Office of information; (c) ways to enhance the Management and Budget (OMB) for each DEPARTMENT OF VETERANS quality, utility, and clarity of the collection of information they conduct AFFAIRS information to be collected; (d) ways to or sponsor. This request for comment is Advisory Committee on CARES minimize the burden of the collection of being made pursuant to Section Business Plan Studies; Notice of information on respondents, including 3506(c)(2)(A) of the PRA. Meeting through the use of automated collection With respect to the following techniques or other forms of information collection of information, VHA invites The Department of Veterans Affairs technology; and (e) estimates of capital comments on: (1) Whether the proposed (VA) gives notice under the Public Law or start-up costs and costs of operation, collection of information is necessary 92–463 (Federal Advisory Committee maintenance, and purchase of services for the proper performance of VHA’s Act) that the Advisory Committee on to provide information. functions, including whether the CARES Business Plan Studies will meet
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 49976 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
as indicated below. The meetings are open to the public.
Location Date Time
VA Southern Oregon Rehabilitation Center and Clinics (SORCC) Campus Thursday, September 8, 2005 .... 1 p.m. until 5 p.m. Study, Auditorium (on campus), 8495 Crater Lake Hwy., White City, OR 97503. Livermore Campus Study, VA Palo Alto Health Care System, Livermore Divi- Wednesday, September 14, 2005 9 a.m. until 4:30 p.m. sion, Building 90, NHCU Dining Room, 4951 Arroyo Road, Livermore, CA 94550. Poplar Bluff VA Medical Center Study, Poplar Bluff VA Medical Center, Build- Wednesday, September 14, 2005 1 p.m. until 4 p.m. ing 1, Room 2099, 1500 North Westwood Blvd, Poplar Bluff, MO 63901. Manhattan/Brooklyn Study, Sheraton Hotel, 811 7th Ave and 53rd Sts., New Monday, September 19, 2005 .... 8:30 a.m. until 9 p.m. York, NY 10019. Montrose Campus Study, Montrose Campus of VA Hudson Valley Health Care Thursday, September 22, 2005 .. 2:30 p.m. until 8 p.m. System, Theatre-Building 2, 2094 Albany Post Road, Montrose, New York 10548. West Los Angeles Campus Study, VA Greater Los Angeles Healthcare Sys- Thursday, September 22, 2005 .. 12 p.m. until 9 p.m. tem, Wadsworth Theater, Bldg 226, 11301 Wilshire Blvd., Los Angeles, CA 90073. Lee’s Town Campus Study, VA Medical Center, 2250 Leestown Road Division, Thursday, September 22, 2005 .. 9 a.m. until 4 p.m. Bldg. 4, Room 100 (Auditorium), Lexington, KY 40511. Perry Point Campus Study, Perry Point VA Medical Center, Building 314, The- Tuesday, September 27, 2005 ... 9 a.m. until 4 p.m. ater, Perry Point, MD 21902. Boston Area Study, Campus Center Ballroom, University of Massachusetts/ Tuesday, September 27, 2005 ... 9:30 a.m. until 4 p.m. Boston, Columbia Point, Boston, MA 02125. Waco Campus Study, Waco Convention Center, 100 Washington Avenue, Tuesday, September 27, 2005 ... 8 a.m. until 6 p.m. Waco, Texas 76702. Gulfport Campus Study, VA Gulf Coast Veterans Health Care System, Bldg. Thursday, September 29, 2005 .. 1 p.m. until 5 p.m. 17, Recration Hall, 400 Veterans Avenue, Biloxi, MS 29531. St. Albans Campus Study, St. Albans Campus, 179th St. & Linden Blvd., Pratt Thursday, September 29, 2005 .. 11 a.m. until 8:30 p.m. Auditorium, St. Albans, NY 11425. Walla Walla VAMC Study, Wildhorse Resort and Casino, Cayuse Hall, Pen- Friday, September 30, 2005 ...... 9 a.m. until 5 p.m. dleton, OR 97801. Louisville Medical Center Study, The Clifton Center, 2117 Payne Street, Louis- Tuesday, October 4, 2005 ...... 10:30 a.m. until 6:30 p.m. ville, KY 40206.
The purpose of the Committee is to by the VA contractor. The agenda will Mr. Jay Halpern, Designated Federal provide advice to the Secretary of provide time for public comments on Officer, (00CARES), 810 Vermont Veterans Affairs on proposed business the options and for discussion of which Avenue, NW., Washington, DC 20024 by plans at those VA facility sites options should be considered by the phone at (202) 273–5994, or by e-mail identified in May 2004 as requiring Secretary for further analysis and at [email protected]. further study by the Capital Asset development in the next stage of the Dated: August 18, 2005. Realignment for Enhanced Services Business Plan Option development By direction of the Secretary. (CARDS) Decision document. process. The agenda at each meeting will Interested persons may attend and E. Philip Riggin, include a discussion of the potential present oral or written statements to the Committee Management Officer. CARES Business Plan options for each Committee. For additional information [FR Doc. 05–16849 Filed 8–24–05; 8:45 am] site. The options have been developed regarding the meetings, please contact BILLING CODE 8320–01–M
VerDate jul<14>2003 15:58 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\25AUN1.SGM 25AUN1 Thursday, August 25, 2005
Part II
Department of Transportation Federal Motor Carrier Safety Administration
49 CFR Parts 385, 390, and 395 Hours of Service of Drivers; Final Rule
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\25AUR2.SGM 25AUR2 49978 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION J.7. Off-Duty Time FMP Fatigue Management Program J.8. The 34-Hour Restart and 60/70-Hour FONSI Finding of No Significant Impact Federal Motor Carrier Safety Rules FR Federal Register Administration J.9. Sleeper-Berth Use GVWR Gross Vehicle Weight Rating J.10. Regulation of Short-Haul Operations HEI Health Effects Institute J.11. Combined Effects HOS Hours of Service 49 CFR Parts 385, 390 and 395 J.12. Effective and Implementation Dates IBT International Brotherhood of Teamsters [Docket No. FMCSA–2004–19608; formerly J.13. Electronic On-Board Recording ICC Interstate Commerce Commission FMCSA–1997–2350] Devices ICCTA ICC Termination Act of 1995 J.14. Other Provisions IIHS Insurance Institute for Highway Safety RIN–2126–AA90 J.15. Legal Issues IRP International Registration Plan K. Rulemaking Analyses and Notices ISO International Standards Organization Hours of Service of Drivers K.1. Executive Order 12866 (Regulatory LBP Lower Back Pain Planning and Review) and DOT LH Long Haul AGENCY: Federal Motor Carrier Safety Regulatory Policies and Procedures LR Long Regional Administration (FMCSA), DOT. K.2. Regulatory Flexibility Act LTL Less-Than-Truckload ACTION: Final rule. K.3. Unfunded Mandates Reform Act of MCMIS Motor Carrier Management 1995 Information System SUMMARY: FMCSA is publishing today K.4. National Environmental Policy Act MCSAP Motor Carrier Safety Assistance its final rule governing hours of service K.5. Paperwork Reduction Act Program MFCA Motor Freight Carriers Association for commercial motor vehicle drivers, K.6. Executive Order 13211 (Energy Supply, Distribution, or Use) MPH Miles per Hour following its Notice of Proposed K.7. Executive Order 12898 MTA Minnesota Trucking Association Rulemaking published January 24, 2005. (Environmental Justice) NACA National Armored Car Association The rule addresses requirements for K.8. Executive Order 13045 (Protection of NAICS North American Industrial driving, duty, and off-duty time; a Children) Classification System recovery period, sleeper berth, and new K.9. Executive Order 12988 (Civil Justice NEPA National Environmental Policy Act requirements for short-haul drivers. The Reform) NHTSA National Highway Traffic Safety hours-of-service regulations published K.10. Executive Order 12630 (Taking of Administration on April 28, 2003, were vacated by the Private Property) NIH National Institutes of Health NIOSH National Institute for Occupational U.S. Court of Appeals for the District of K.11. Executive Order 13132 (Federalism) K.12. Executive Order 12372 Safety and Health Columbia Circuit on July 16, 2004. (Intergovernmental Review) NITL National Industrial Transportation Congress subsequently provided, L. List of References League through the Surface Transportation NPRM Notice of Proposed Rulemaking Extension Act of 2004, that the 2003 Table of Abbreviations NPTC National Private Truck Council regulations will remain in effect until AHAS Advocates for Highway and Auto NRMCA National Ready Mixed Concrete the effective date of a new final rule Safety Association addressing the issues raised by the court AMI Acute Myocardial Infarction NSSGA National Stone, Sand, and Gravel or September 30, 2005, whichever AMSA American Moving and Storage Association Association NTSB National Transportation Safety Board occurs first. Today’s rule meets that ANPRM Advance Notice of Proposed OMB Office of Management and Budget requirement. Rulemaking OOIDA Owner-Operator Independent DATES: This rule is effective October 1, APA Administrative Procedure Act Drivers Association 2005. ATA American Trucking Associations OOS Out-of -Service BAC Blood Alcohol Content OSHA U.S. Occupational Safety and Health FOR FURTHER INFORMATION CONTACT: Tom BLS U.S. Bureau of Labor Statistics Administration Yager, Chief, Driver and Carrier BMI Body Mass Index OTR Over-the-Road Operations Division, Office of Bus and CATF Clean Air Task Force PATT Parents Against Tired Truckers Truck Standards and Operations (MC– CDL Commercial Drivers License PM Particulate Matter PSD), Federal Motor Carrier Safety CEQ Council on Environmental Quality PMC PubMed Central Administration, 400 Seventh Street. CFR Code of Federal Regulations PRA Paperwork Reduction Act of 1995 S.W., Washington, DC 20590. Phone CHP California Highway Patrol PVT Psychomotor Vigilance Test 202–366–4009, E-mail CMV Commercial Motor Vehicle RIA Regulatory Impact Analysis CRASH Citizens for Reliable and Safe RMA Risk Management Association [email protected]. Highways R&T Research and Technology SUPPLEMENTARY INFORMATION: CRMCA Colorado Ready Mixed Concrete RODS Records of Duty Status Association SBA Small Business Administration Table of Contents CTC Corporate Transportation Coalition SH Short Haul A. Legal Basis for the Rulemaking CVD Cardiovascular Disease SR Short Regional B. Background Information CVSA Commercial Vehicle Safety Alliance STAA Surface Transportation Assistance C. Executive Summary dBA Decibels Adjusted Act D. Research Review Process DE Diesel Exhaust TCA Truckload Carriers Association E. Driver Health DOT Department of Transportation TIFA Trucks Involved in Fatal Accidents F. Driver Fatigue EA Environmental Assessment TL Truckload G. Current and Future FMCSA Research ECMT European Conference of Ministers of TOT Time-on-Task H. Crash Data Transport TRB Transportation Research Board I. Operational Data EEI Edison Electric Institute UMTRI University of Michigan J. Comments to Docket and FMCSA EOBR Electronic On-Board Recorder Transportation Research Institute Responses EPA U.S. Environmental Protection Agency UPS United Parcel Service J.1. Sleep Loss FARS Fatality Analysis Reporting System USV Utility Service Vehicle J.2. Exposure to Environmental Stressors FHWA Federal Highway Administration VIUS Vehicle Inventory and Use Survey J.3. Workplace Injuries and Fatalities FMCSA Federal Motor Carrier Safety VMT Vehicle Miles Traveled J.4. Lifestyle Choices Administration VSL Value of a Statistical Life J.5. Driving Time FMCSR Federal Motor Carrier Safety VTTI Virginia Tech Transportation Institute J.6. Duty Tour Regulations WBV Whole Body Vibration
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49979
A. Legal Basis for the Rulemaking Before prescribing any regulations, the prior prohibition on driving after 60 This rule is based on the authority of FMCSA must also consider their ‘‘costs hours on duty in 7 days or 70 hours in the Motor Carrier Act of 1935 and the and benefits’’ [49 U.S.C. 31136(c)(2)(A) 8 days; (3) increased allowable driving Motor Carrier Safety Act of 1984. and 31502(d)]. Those factors are also time from 10 to 11 hours in any one The Motor Carrier Act of 1935 discussed later. duty period; and (4) replaced the so- called 15-hour rule (which prohibited provides that ‘‘The Secretary of B. Background Information Transportation may prescribe drivers from driving after being on duty requirements for—(1) qualifications and B.1. History of the Hours-of-Service Rule more than 15 hours, not including maximum hours of service of employees The Interstate Commerce Commission intervening off-duty time) with a 14- of, and safety of operation and (ICC) promulgated the first Federal hour rule (which prohibited driving equipment of, a motor carrier; and (2) hours-of-service regulations (HOS) in after the 14th hour after the driver came qualifications and maximum hours of the late 1930s. The rules were based on on duty, with no extensions for off-duty time). Note that the 15-hour limit had service of employees of, and standards the Motor Carrier Act of 1935. The been cumulative—so it could be of equipment of, a motor private carrier, regulations remained largely unchanged interspersed with off-duty time—while when needed to promote safety of from 1940 until 2003, except for an the non-extendable 14-hour limit was operation’’ [49 U.S.C. 31502(b)]. important amendment in 1962. Prior to consecutive. Additionally, FMCSA The hours-of-service regulations 1962, driver hours-of-service regulations allowed drivers to ‘‘restart’’ the adopted today deal directly with the were based on a 24-hour period from calculations for the 60- and 70-hour ‘‘maximum hours of service of noon to noon or midnight to midnight. limits by taking 34 consecutive hours off employees of * * * a motor carrier [49 A driver could be on duty no more than duty. Based on the data and research U.S.C. 31502(b)(1)] and the ‘‘maximum 15 hours in a 24-consecutive-hour available at the time, FMCSA was hours of service of employees of * * * period. In 1962, among other rule convinced that these new rules a motor private carrier’’ [49 U.S.C. changes, the 24-hour cycle was removed constituted a significant improvement 31502(b)(2)]. The adoption and and replaced by minimum off-duty in the hours-of-service regulations, enforcement of such rules was periods. A driver could ‘‘restart’’ the compared to the rules they replaced, by specifically authorized by the Motor calculation of his or her driving and on- providing drivers with better Carrier Act of 1935. This rule rests duty limitations after any period of 8 or opportunities to obtain off-duty time squarely on that authority. more hours off duty. offering daily restorative sleep, thereby The Motor Carrier Safety Act of 1984 Section 408 of the ICC Termination reducing the incidence of crashes provides concurrent authority to Act of 1995 (ICCTA) (Pub. L. 104–88, wholly or partially attributable to regulate drivers, motor carriers, and 109 Stat. 803, at 958) required the drowsiness or fatigue. vehicle equipment. It requires the Federal Highway Administration On June 12, 2003, Public Citizen, Secretary of Transportation to (FHWA) to conduct rulemaking Citizens for Reliable and Safe Highways ‘‘prescribe regulations on commercial ‘‘dealing with a variety of fatigue-related (CRASH) and Parents Against Tired motor vehicle safety. The regulations issues pertaining to commercial motor Truckers (PATT) filed a petition to shall prescribe minimum safety vehicle safety.’’ In response, FHWA review the new hours-of-service rule standards for commercial motor published an advance notice of with the United States Court of Appeals vehicles.’’ Although this authority is proposed rulemaking (ANPRM) on for the District of Columbia Circuit (D.C. very broad, the Act also includes November 5, 1996 (61 FR 57252). Circuit). On July 16, 2004, the D.C. specific requirements: ‘‘At a minimum, FMCSA was established as a separate Circuit issued an opinion holding that the regulations shall ensure that—(1) Agency on January 1, 2000. At that time, the rule was arbitrary and capricious Commercial motor vehicles are responsibility to promulgate CMV because the Agency failed to consider maintained, equipped, loaded, and regulations was transferred from FHWA the impact of the rules on the health of operated safely; (2) the responsibilities to FMCSA, which published an hours- drivers, as required by 49 U.S.C. imposed on operators of commercial of-service Notice of Proposed 31136(a)(4). Public Citizen et al. v. motor vehicles do not impair their Rulemaking (NPRM) on May 2, 2000 (65 Federal Motor Carrier Safety ability to operate the vehicles safely; (3) FR 25540) and a final rule on April 28, Administration, 374 F.3d 1209, at 1216. the physical condition of operators of 2003 (68 FR 22456). Technical The D.C. Circuit noted, however, that commercial motor vehicles is adequate amendments to the final rule were neither Public Citizen nor the court was to enable them to operate the vehicles published on September 30, 2003 (68 FR ‘‘suggest[ing] that the statute requires safely; and (4) the operation of 56208). Motor carriers and drivers were the agency to protect driver health to the commercial motor vehicles does not required to comply with the final rule exclusion of those other factors [i.e., the have a deleterious effect on the physical on January 4, 2004. costs and benefits of the rule], only that condition of the operators’’ [49 U.S.C. FMCSA’s 2003 rule did not change the agency must consider it.’’ Id. at 1217 31136(a)]. any hours-of-service requirements for (emphasis in original). Although This rule is based on the authority of motor carriers and drivers operating FMCSA argued that the effect of driver the 1984 Act and addresses the specific passenger-carrying vehicles. They were health on vehicle safety had permeated mandates of 49 U.S.C. 31136(a)(2), (3), required to continue complying with the the entire rulemaking process, the court and (4). Section 31136(a)(1) of 49 U.S.C. hours-of-service rules existing before the said that driver health and vehicle deals almost entirely with the 2003 rule (see 68 FR 22461–22462). safety were distinct factors that must be mechanical condition of commercial Changes in hours-of-service provisions considered separately. motor vehicles (CMVs), a subject not in the new rule applied only to motor In dicta the court also stated that: (1) included in this rulemaking. The phrase carriers and drivers operating property- FMCSA’s justification for increasing ‘‘operated safely’’ in paragraph (a)(1) carrying vehicles. Compared to the allowable driving time from 10 to 11 refers primarily to the safe operation of previous regulations, the 2003 rule: (1) hours might be legally inadequate the vehicle’s equipment, but to the Required drivers to take 10, instead of because the Agency failed to show how extent it encompasses safe driving, this 8, consecutive hours off-duty (except additional off-duty time compensated rule also addresses that mandate. when using sleeper berths); (2) retained for more driving time, and especially
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 49980 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
because it failed to discuss the effects of court. The Agency used the 2003 rule as 14th hour, since their principal the 34-hour recovery provision; (2) a proposal for the purpose of soliciting responsibility—driving—is illegal after splitting off-duty time in a sleeper berth public comments, but also announced that point. The circadian friendliness of into periods of less than 10 hours was that ‘‘[t]his rulemaking is necessary to today’s rule is bolstered by the probably arbitrary and capricious, develop hours-of-service regulations to requirement for 10 consecutive hours off because FMCSA itself asserted that replace those vacated by the Court’’ (70 duty. This is enough time to enable drivers need 8 hours of uninterrupted FR 3342). The NPRM asked a series of drivers to get the 7–8 hours of sleep sleep; (3) failing to collect and analyze questions on driver health, sleep loss most people need to maintain alertness data on the costs and benefits of and deprivation, driving time, sleeper and prevent the onset of cumulative requiring electronic on-board recording berths, and other subjects; the answers fatigue. devices (EOBRs) probably violated are discussed later. While awaiting the The original restart provisions were section 408 of the ICC Termination Act, submission and review of docket the 60- and 70-hour limits. Drivers which requires FMCSA to ‘‘deal with’’ comments, the Agency pursued a could not drive after having been on EOBRs; and (4) the Agency failed to research program to identify relevant duty for those periods until they had address or justify the additional on-duty studies on the same issues; the results been off duty long enough to reduce and driving hours allowed by the 34- of that effort are also described in later their 7- or 8-day on-duty totals below hour recovery provision. sections of the preamble. the 60- or 70-hour threshold. These On September 1, 2004 (69 FR 53386), limits are being adopted in today’s rule, FMCSA published an ANPRM C. Executive Summary but the Agency is also adding a second requesting information about factors the Today’s rule requires all drivers of and more flexible recovery provision, as Agency should consider in developing property-carrying commercial motor it did in 2003—the 34-hour restart. A performance specifications for EOBRs. vehicles (CMVs) in interstate commerce 34-hour period gives a large majority of As the Agency said in the preamble to to take at least 10 consecutive hours off drivers the opportunity for two night that document, ‘‘FMCSA is attempting duty before driving, limits driving time sleep periods, and all drivers the to evaluate the suitability of EOBRs to to 11 consecutive hours within a 14- opportunity for two consecutive 8-hour demonstrate compliance with the hour, non-extendable window after sleep periods separated by a full 18- enforcement of the hours-of-service coming on duty, and prohibits driving hour day. Comments to the docket regulations, which in turn will have after the driver has been on duty 60 stated that the 34-hour restart provides major implications for the welfare of hours in 7 consecutive days, or 70 hours far more flexibility than the 60- and 70- drivers and the safe operation of in 8 consecutive days. Drivers may hour limits alone, enabling drivers to commercial motor vehicles.’’ The restart the 60- or 70-hour ‘‘clock’’ by tailor their schedules to their business ANPRM asked for comments and taking 34 consecutive hours off duty. requirements while still spending more information, both on technical questions These provisions are the same as time at home. relating to EOBRs, and on the potential those of FMCSA’s 2003 final rule that Today’s rule also creates a new costs and benefits of such devices. The was vacated by the U.S. Court of regulatory regime for drivers of CMVs EOBR rulemaking has been and will Appeals for the D.C. Circuit and then that do not require a CDL, provided they remain separate from this hours-of- reinstated by Congress for the duration operate within a 150-mile radius of their service rulemaking. (For additional of fiscal year 2005. These limits, work-reporting location. These drivers discussion of EOBRs, see Section J.13.) however, are significantly different from are not required to keep logbooks, On September 30, 2004, the President the pre-2003 HOS regulation, which though their employers must keep signed the Surface Transportation required only 8 hours off duty before accurate time records, and the driver Extension Act of 2004, Part V (Public driving, allowed 10 hours of driving may use a 16-hour driving window Law 108–310, 118 Stat. 1144). Section time, and prohibited driving after twice a week. Driving time may not 7(f) of the Act provides that ‘‘[t]he having been on duty for 15 hours (but exceed the normal 11 hours, but the hours-of-service regulations applicable allowed any off-duty time taken during longer operational window twice a week to property-carrying commercial drivers the work shift to be excluded from the enables short-haul carriers to meet contained in the Final Rule published calculation of the 15-hour limit). The unusual scheduling demands. Short- on April 28, 2003 (68 FR 22456–22517), pre-2003 rule had no counterpart to haul drivers rarely drive anything close as amended on September 30, 2003 (68 today’s 34-hour recovery provision. The to 11 hours, and available statistics FR 56208–56212), and made applicable recovery role was played by the 60- and show that they are greatly under- to motor carriers and drivers on January 70-hour limits, the only element of the represented in fatigue-related accidents. 4, 2004, shall be in effect until the pre-2003 rule which has been adopted On a per-mile basis, long-haul trucks are earlier of—(1) the effective date of a new without change for property-carrying almost 20 times more likely to be final rule addressing the issues raised by vehicles in today’s rule. involved in a fatigue-related crash. One the July 16, 2004, decision of the United The 14-hour driving window and the study suggested that a contributing States Court of Appeals for the District 10-hour off-duty requirement of today’s factor to this statistical imbalance is the of Columbia in Public Citizen, et al. v. rule combine to move most drivers variety of work short-haul drivers Federal Motor Carrier Safety toward a 24-hour cycle, which allows typically perform; variety seems to Administration (No. 03–1165); or (2) the body to operate in accord with its minimize fatigue. September 30, 2005.’’ (118 Stat. at normal circadian rhythm and the driver The rule adopted today balances 1154). to sleep on the same schedule each day. considerations of driver and public A driver may remain on duty after the safety, driver health, and costs and B.2. Notice of Proposed Rulemaking 14-hour window closes or go off duty benefits to the motor carrier industry— (January 24, 2005) after the 11th hour of driving, in each all factors the Agency is required to take FMCSA published an NPRM on case returning to work after 10 hours off into account. The provisions are January 24, 2005 (70 FR 3339) to duty on something other than a 24-hour described separately in the preamble, reconsider the 2003 rule and determine cycle. Nonetheless, FMCSA believes but they constitute an interconnected what changes might be necessary to that most drivers, most of the time, will whole and cannot be adequately correct the deficiencies identified by the go off duty at or before the end of the understood in isolation.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49981
The rule addresses driver health again—sometimes leads to inconsistent asked the Transportation Research issues in detail, and provides a lengthy findings. Board (TRB) of the National Academies explanation and justification for the The rule and the Regulatory Impact to contract with a research team of requirements adopted today. FMCSA Analysis discuss the strengths and experts in the field of health and fatigue has examined a wide range of scientific weaknesses of each data source and to prepare a summary of relevant evidence, independently collected, balance the shortcomings of one against literature through the TRB Commercial summarized, and reviewed by a health the advantages of another. The TIFA Truck and Bus Safety Synthesis panel created at the Agency’s request by data from 1991 to 2002 are very Program. The literature review was the Transportation Research Board of comprehensive. In order to ensure that conducted using two teams of health the National Academies of Science. its safety analysis erred on the side of and transportation experts to identify FMCSA has concluded that the caution, the Agency used TIFA data to and summarize the available research operation of CMVs under this rule does estimate the risk of additional driving literature relevant to this HOS not have a deleterious effect on the hours, knowing that the risk is probably rulemaking. This review included physical condition of drivers. Because over-stated given the better research findings that discussed in a relatively little of the available evidence opportunities for restorative sleep scientific, experimental, qualitative, and was derived from motor carrier available under the 2003 rule and quantitative way the relationship operations, the Agency had to evaluate today’s final rule. It is also clear that between the hours a commercial motor and weigh information from different newer CMVs, with their quieter and vehicle driver works, drives, and the fields and adapt it to a trucking more comfortable cabs, are less fatiguing structure of the work schedule (on-duty/ environment. We believe our to drive. That change may also affect the off-duty cycles, time-on-task, especially conclusions accurately reflect a usefulness of the TIFA data, though this time in continuous driving, sleep time, preponderance of the scientific data. factor is impossible to quantify. etc.), and the impact on his/her health. The additional off-duty time provided Using the most conservative estimates Dr. Peter Orris, M.D., Professor of by the rule, along with the 14-hour of crash risk for a given amount of Occupational Health at the University of driving window, should have a driving time, FMCSA’s analysis shows Illinois, led a team of six prominent particularly beneficial effect on drivers’ that the safety differential between a 10- medical doctors, epidemiologists, and sleep opportunities, and indirectly on hour and an 11-hour driving limit is an ergonomist to identify relevant their health as well. In an indication of very small while the economic cost research on CMV driver health. Dr. the fatigue-reducing benefits of the 2003 differential is very large. The Alison Smiley, President of Human rule, preliminary information on sleep operational and scheduling flexibility of Factors North Inc., Professor in the habits under that rule shows drivers are an 11-hour limit, even when it is not Department of Mechanical and utilized fully, is both economically and getting, on average, at least an Industrial Engineering, University of socially valuable. According to the additional hour of sleep compared to Toronto, and the Department of Civil drivers who commented to the docket, the pre-2003 rule. There is no indication Engineering, Ryerson University, led a the 11-hour limit in the 2003 rule that drivers are averaging more hours of team of three leading transportation and enables them to get home more often, work, as opponents of the 2003 rule had fatigue experts to review relevant fatigue when the 10-hour limit would leave feared. studies. Each team conducted two them stranded at roadside, out of hours. literature reviews, a review of the The Agency has examined all of the It also allows them to get home without literature at the beginning of the project data on crash risk. Virtually every study pushing quite as hard as they might be and a review of the literature that was has weaknesses or limitations. The tempted to do under a 10-hour limit. submitted by commenters to the 2005 largest database on fatal truck crashes FMCSA examined a range of options NPRM. It was through this rigorous (Trucks Involved in Fatal Crashes, or and found that today’s rule is the only process that FMCSA ensured that not TIFA) records accidents that occurred one that is cost-beneficial, with a net only the latest research, but the best entirely under the pre-2003 HOS rule, annual benefit estimated at $270 available science was used to support when off-duty time could have been as million. Reducing driving time from 11 this rulemaking. The final reports are short as 8 hours. Furthermore, while the to 10 hours, while leaving the rest of located in the docket and are entitled crash risk reflected in TIFA data rises today’s rule intact, would increase net ‘‘Literature Review on Health and with the number of hours driven before costs by $526 million per year. To Fatigue Issues Associated with the crash, the risk in the 11th hour confirm our findings, we conducted a Commercial Motor Vehicle Driver Hours generally reflects illegal driving, since sensitivity analysis of the data and of Work,’’ Part I and Part II. the normal limit at the time was 10 assumptions used. We changed these The driver health team used PubMed hours. Also, despite being the largest parameters in a way that was Central (PMC), which is the U.S. database available, the data contain unfavorable to today’s rule in general National Institutes of Health (NIH) relatively few fatigue-related crashes and to allowing 11 hours of driving in digital archive of biomedical and life after long hours of driving. All in all, we particular. No parameters tested, either sciences journal literature. PMC thus must be careful in applying this singly or in combination, produced a includes MEDLINE, which is the data to the 2003 rule or today’s rule, basis for either replacing the 11-hour premier bibliographic database covering where the minimum off-duty time is 25 driving limit with a 10-hour limit, or the fields of medicine, nursing, percent greater. suggested that another option could be dentistry, veterinary medicine, the On the other hand, we also examined more cost-beneficial. health care system, and the preclinical recent data collected while the 2003 sciences. MEDLINE contains over 12 rule was in effect. Although this data D. Research Review Process million bibliographic citations dating suggests that fatigue-related crashes In preparing this final rule, FMCSA back to the mid-1960s and author have fallen since the 2003 rule became thoroughly, systematically, and abstracts from more than 4,800 effective, this newer data is mostly extensively researched both U.S. and biomedical journals published in the preliminary, self-reported without international health and fatigue studies United States and 70 other countries. statistical controls, and also reflects and consulted with Federal safety and The initial driver health literature small sample sizes, all of which—once health experts. In addition, FMCSA search from 1975 to present resulted in
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 49982 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
over a thousand research articles. The studies of CMV crash risk, or field Another type of study is a dose- driver health team screened these studies of performance of commercial response study. A dose-response study studies based on relevance to the topics drivers in relation to fatigue issues such is based on the principle that there is a of commercial vehicle operator health as daily and weekly hours, time of day, relationship between a toxic reaction and the health effects of work hours, and short sleep, or studies of non-CMV (the response) and the amount of shift work, and sleep schedules. A total drivers showing the effects of sleep loss substance received (the dose). Knowing of 55 of the relevant studies were and comparing sleep loss and alcohol the dose-response relationship is a reviewed in greater detail. Twenty-five impacts. The reasons for not reviewing necessary part of understanding the were chosen and summarized by a the remaining articles suggested by cause and effect relationship between primary reviewer to be included in the commenters included the following: an chemical exposure and illness. Part I final report. The criteria for article was not published as a report of A third type of study is a case-control inclusion were the validity of the a recognized Agency or in a peer- study, which investigates the prior methodology, the relevance of the reviewed journal; an article was very exposure of individuals with a studied population to truck driving, and general in nature (e.g. a discussion of particular health condition and those the quality of the statistical analysis of circadian rhythm); or, an article was not without it to infer why certain subjects, health outcomes. sufficiently relevant to the task of CMV the ‘‘cases,’’ become ill and others, the Similarly, the TRB driver fatigue team driving. The driver health team selected ‘‘controls,’’ do not. The main advantage used the TRANSPORT database, a 11 of these studies to review and of the case-control study is that it bibliographic database of transportation summarize for inclusion in the Part II enables the study of rare health research and economic information report, while the driver fatigue team outcomes without having to track produced by the 25-nation Organization selected 21 studies for the Part II report. thousands of people. One primary for Economic Co-operation and In addition to reviewing the studies disadvantage of a case-control study is Development, together with the United mentioned above, FMCSA internally a greater potential for bias. Because the States TRB, and the 31 nations of the reviewed, summarized, and evaluated health status is known before the European Conference of Ministers of research reports that were previously exposure is determined, the study does Transport (ECMT). TRANSPORT cited in the 2003 rule, 2004 litigation, not allow for broader-based health includes the Transportation Research 2005 NPRM, and driver fatigue and assessment. Information Services, International Road performance studies that were excluded These are important distinctions for Research Documentation, and ECMT’s from the TRB literature review (i.e., the following discussion of the research TRANSDOC. published before 1996). on driver health, specifically regarding Collectively these sources contain The Agency also assembled an exposure to environmental stressors over 530,000 citations from intermodal team of experts on operator such as exhaust, chemicals, noise, and publications, most with abstracts, of fatigue and health to help FMCSA vibration. FMCSA has reviewed and research information on all surface further identify and analyze relevant evaluated the available and pertinent transportation modes, air transport, and research. The Federal agencies information concerning driver health, highway safety. The driver fatigue team represented were the Federal Aviation with emphasis on chronic conditions searched these studies for relevance Administration, Federal Railroad potentially associated with changes concerning hours of service, and CMV Administration, U.S. Coast Guard, and from the pre-2003 and 2003 rules, to operator performance and fatigue. the National Institute for Occupational this final rule. The research on CMV Because FMCSA had previously Safety and Health (NIOSH). driver health falls into several broad docketed summaries of fatigue-related categories: (1) Sleep loss/restriction, (2) E. Driver Health studies used in preparing the 2003 rule, exposure to exhaust, (3) exposure to the scope of this literature review was The D.C. Circuit held that FMCSA noise, (4) exposure to vibration, (5) limited to studies published after 1995. failed to consider the possibly cardiovascular disease, (6) long work Primary sources were selected if they deleterious effect of the 2003 hours-of- hours, and (7) shift work and addressed truck driver performance (on service rule on the physical condition of gastrointestinal disorders. road or simulated), and included drivers, as required by 49 U.S.C. E.1. Sleep Loss/Restriction driving performance measures (vehicle 31136(a)(4). control or critical incidents). Only To assess driver health and better The lack of adequate sleep has been studies were selected which involved comprehend the impact of the findings, shown to have detrimental impacts on drivers on typical work-rest schedules, one must understand the differences in the overall health of humans. Research involving extended hours of driving, the types of relevant medical research. suggests that sleep deprivation driving in a sleep-deprived state, and/or Epidemiology is the study of diseases in adversely affects human metabolism as driving at night. After the initial set of populations of humans or animals, well as the endocrine and immune research reports was screened based on specifically how, when, and where they systems [Spiegel, K., et al. (1999), p. relevance, the driver fatigue team occur. Epidemiology attempts to 1438]. Chronic partial sleep loss is reviewed a total of 26 relevant studies, determine what factors are associated associated with decreased glucose and 13 were chosen to be summarized with diseases (risk factors). tolerance, decreased leptin levels, for the Part I report. Epidemiological studies can never prove increases in evening cortisol levels, and As a result of the questions posed in causation; that is, they cannot prove that adverse cardiovascular effects [Spiegel, the 2005 NPRM, commenters referenced a specific risk factor actually causes the K., et al. (2004), p. 5770]. Consistent over 200 studies. The driver health and disease being studied. Epidemiological with these studies, epidemiologic fatigue teams reviewed the titles and evidence can only show that a risk research demonstrates that short sleep abstracts of studies referenced by factor is associated (correlated) with a duration is modestly associated with commenters using the identical criteria higher incidence of disease in the symptomatic diabetes [Ayas, N. T. et al. that were used for screening the initial population exposed to that risk factor. (2003), p. 383], cardiovascular disease, research discussed earlier. Articles The higher the correlation the more and mortality [Alvarez, G.G., & Ayas, N. considered most relevant were those certain the association, but it cannot T. (2004), p. 59]. Other studies have involving epidemiological studies, prove the causation. shown that short sleepers (less than 6
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49983
hours) have hormone and metabolic Operator Independent Drivers assumed to be a straight line, which can changes which result in weight gain Association (OOIDA) found that of the be extended downward to the lower [Hasler, G., et al. (2004), p. 661; 1,264 drivers responding, 355 or 30 exposures typical of ambient conditions Morikawa, Y., et al. (2003), p. 136; percent of drivers stated that they were outside the laboratory. If the dose/ Taheri, S., et al. (2004), p. 210; Vioque, getting more rest as a result of the 2003 response curve is not a straight line J., et al. (2000), p. 1683]. Interleukin 6 HOS rule with 10 consecutive hours of (because the physiological response (IL–6) is a marker of systemic off-duty time. The other 70 percent of decreases disproportionately when inflammation that may lead to insulin the drivers responded that they were exposure is reduced), the curve will resistance, cardiovascular disease, and getting either the same amount of rest or overstate the effect of ambient exposure osteoporosis. Sleep loss of as little as no additional rest was needed as a result by some unknown amount. In that case, two hours per night increases daytime of the 2003 rule. long-term population studies might be IL–6 and causes drowsiness and fatigue Comparing study findings before and an alternative, provided long-term during the next day, whereas post- after the 2003 HOS rule change suggests exposure can be established. deprivation decreases nighttime IL–6 that drivers are getting more than an Attempts to establish a dose/response and is associated with deeper sleep hour of additional sleep per night than curve for DE have not produced clear- [Vgontzas, A. N., et al. (2004), p. 2125]. they previously were able to obtain. cut results. In animal studies, rats As to the amount of sleep necessary, While the Agency would like to see develop lung tumors after lifetime the National Sleep Foundation drivers obtain a sleep period between 7 inhalation of DE at exposures vastly recommends 8 hours per day. This to 8 hours per day to maximize driver higher than any ambient condition; but standard comes primarily from studies alertness, the finding of 6.28 hours of these cancers appear to be at least by the National Institutes of Health sleep per night is within normal ranges partially the result of particle overload, (NIH), which notes that this was the consistent with a healthy lifestyle and is which prevents lung clearance and mean time period that healthy young a vast improvement over previous sleep causes chronic inflammation and adults gravitated to when external findings. Based on the research that led subsequent lung disease. Chronic influences were removed. Not all sleep to the 2003 final HOS rule, FMCSA inhalation studies in mice show researchers agree with this conclusion, knew that short sleep (less than 6 hours) equivocal results, and hamsters do not particularly with regard to individual among drivers was a concern from both develop cancer [Bunn, W.B., et al. health and well-being. Two large-scale a safety and health standpoint. As a (2002), p. S126; EPA (2002), p. 7–139]. studies have found no relationship result, FMCSA increased off-duty time EPA therefore concluded that ‘‘the rat between longer sleep and better health to 10 consecutive hours thereby lung tumor response is not considered [Kripke, D. F., et al. (2002), p. 131; Patel, increasing driver sleep by up to an relevant to an evaluation of the potential S. R., et al. (2004), p. 440]. The additional two hours per day. This final for a human environmental exposure- epidemiological research on sleep rule adopts the requirement for the 10 related hazard’’ [Id.]. EPA further noted duration suggests that mortality may consecutive hours of off-duty time. that ‘‘[t]he gaseous phase of DE (filtered even begin to rise with sleep durations E.2. Exposure to Diesel Exhaust exhaust without particulate fraction) greater than 8 hours. Likewise, mortality was found not to be carcinogenic in rats, risk increases for short sleep durations The Environmental Protection mice, or hamsters’’ [Id.]. less than 6 hours per day [Id.]. Agency’s (EPA) Health Assessment The research identified that prior to Document for Diesel Engine Exhaust Although EPA has declared DE to be the 2003 HOS rule, CMV drivers were (2002) concluded that ‘‘long-term (i.e., a ‘‘probable human carcinogen,’’ based not getting enough sleep (i.e., 7–8 hours chronic) inhalation exposure is likely to in part on a review of 22 epidemiologic per day) as needed to maintain pose a lung cancer hazard to humans, as studies of workers exposed to DE in individual health. In four major research well as damage the lung in other ways various occupations, it also noted that studies, where sleep was verified using depending on exposure’’ [EPA (2002), p. the either an actigraph watch (wrist-worn ii]. ‘‘Increased lung cancer relative risks monitoring device) or Diesel exhaust (DE) is not a single generally range from 1.2 to 1.5, though a few electroencephalogram, CMV drivers ‘‘thing’’ but a mixture of hundreds of studies show relative risks as high as 2.6. averaged from 3.8 to 5.25 hours of sleep gases and particles, which differ with Statistically significant increases in pooled per day [Dinges, D. F., et al. (2005), p. the type of engine generating them, relative risk estimates (1.33 to 1.47) from two 38; Balkin, T., et al. (2000), p. 4–48; operating conditions, and fuel independent meta-analyses further support a formulations. Some of the components positive relationship between DE exposure Mitler, M. M., et al. (1997), p. 755; and lung cancer in a variety of DE-exposed Wylie, C. D., et al. (1996), p. ES–10]. of DE are known carcinogens (e.g., occupations. The generally small increase in These averages are below the 6 to 8 benzene) and others are mutagenic or lung cancer relative risk (less than 2) hours of sleep that are associated with toxic. Particulates from diesel engines, observed in the epidemiologic studies and lower mortality or a healthy lifestyle. which constitute about 6 percent of the meta-analyses tends to weaken the evidence Preliminary data from the following total ambient particulate matter (PM) of causality. When a relative risk is less than sources suggest that, on average, CMV with an aerodynamic diameter of 2.5 2, if confounding factors (e.g., smoking, drivers are obtaining more sleep than micrometers or less (PM–2.5), are highly asbestos exposure) are having an effect on the before under the 2003 rule, which respirable and able to reach the deep observed risk increases, they could be requires at least 10 consecutive hours of lung. Yet EPA has not formally declared enough to account for the increased risk’’ [EPA (2002), pp. 7–138 and 7–139]. off-duty time. First, an ongoing joint DE to be a carcinogen. There are several National Highway Traffic Safety reasons for this ambiguity. Overall, the evidence is not sufficient Administration (NHTSA) and FMCSA A dose/response curve is the classic for DE to be considered a proven human study conducted in 2005 found that means of measuring the effect of carcinogen because of exposure drivers were averaging 6.28 hours of exposure. A curve is typically uncertainties (lack of historical sleep per day, a figure that was verified established in a laboratory. Very high exposure data for workers exposed to with an actigraph watch [Hanowski, doses are given over a relatively short DE) and an inability to reach a full and R.J., et al. (2005), p.1]. Second, in a period, and the physiological response direct accounting for all possible survey of its membership, the Owner- is measured. A dose/response curve is confounders [Id.].
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 49984 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
The actual cancer risk involved in drivers included, with a total of 5,397 7- divided by the probability of the control operating a diesel-engine truck depends day periods, worked an average of 61.4 group developing lung cancer). A on the degree and duration of exposure hours (driving and other on-duty time) positive duration response was noted in to DE, and especially to smaller per week [FMCSA Field Survey Report all studies that quantified exposure particulate matter (PM–2.5). Information (2005), p. 4]. [Bhatia, R., et al. (1998), p. 84]. on the real-world DE exposure of truck At the annual meeting of the TRB in Several studies have shown an drivers is limited by many uncertainties. Washington, D.C. in January 2005, association between truck driving and Because trucks spend a great deal of Schneider National, a large motor bladder cancer. The driver health team time in motion, the exposure levels of carrier, provided a distribution of the reviewed three studies that addressed different highway, municipal, and weekly (8-day period) on-duty hours for the association between duration of regional environments have to be its drivers (available in the docket for exposure to DE and bladder cancer. A collected and combined. Idling time at this rule). The data shows that population-based case-control study in terminals, in traffic jams, or while using Schneider’s employee drivers averaged New Hampshire found a positive a sleeper berth presumably generates 62 hours on duty per 8-day period and association between bladder cancer and higher exposure than does highway its leased drivers averaged 65 hours on tractor-trailer driving, as well as a driving, but estimating the possible duty per 8-day period. In addition, J.B. positive trend with duration of combinations of conditions for a large Hunt, another large motor carrier, in employment [Colt, J.S., et al. (2004), p. population of drivers is difficult. comments to the NPRM, reviewed the 759]. A large study in Finland found Furthermore, because of the long work records of 80 randomly selected increased standard incidence ratios for latency period of most cancers, the over-the-road drivers for a 30-day six types of cancer in truck drivers. extent of the risk to truck drivers period. J.B. Hunt found that 74 percent Cumulative exposure to DE was depends on the length of their exposure. of its drivers used the 34-hour restart at negatively associated with all cancers This in turn is influenced by the factors least once during the 30-day period. On except ovarian cancer in women with that existed several decades ago: engine average, J.B. Hunt’s drivers accumulated high cumulative exposure [Guo, J., et al. design, formulation of diesel fuel, 62.25 hours on duty per eight-day 2004, p. 286]. A meta-analysis of 29 prevalence of smoking among driver period. studies on bladder cancer and truck populations, total particulate levels This data provides some indication of driving found an overall significant from all sources, etc. In most cases, this the hours worked as a result of the 2003 association between ‘‘high’’ exposure to information is less well known than rule. Given the data from surveys and DE and bladder cancer as well as a dose- comparable data on these factors today. comments regarding work hours from response trend. The authors concluded Nor can one project previous (assumed) motor carriers, it does not appear that that DE exposure may result in bladder CMV drivers are working on average conditions forward or current cancer, but the effects of significantly more hours as a result of conditions backward; virtually misclassification, publication bias, and the 2003 rule as compared to the pre- everything about DE has been changing confounding variables could not be fully 2003 regulation. Consequently, based on in the last few decades and will taken into account [Boffetta, P., & review of the data, the average exposure continue to change as EPA tightens the Silverman, D.T. (2001), p. 125]. of drivers to DE has remained As a result of the number of studies regulations that govern diesel engine essentially unchanged. showing an association, DE is design and diesel fuel. Also, given EPA The driver health team identified and considered to be a ‘‘probable’’ initiatives to reduce truck idling, and reviewed four studies that address the carcinogen by the World Health Federal financing available for idle- issue of hours of work and duration of Organization and the U.S. Department reduction programs, FMCSA expects DE exposure in transportation workers. of Health and Human Services’ National additional reductions in exposure of A large case-control study in Germany Toxicology Program. Because of the CMV drivers to DE. found significant associations between complexity of proving a definitive link Before discussing the studies lung cancer and employment as a between DE and cancer, no reviewed by the driver health team, it is professional driver. The risk reached organization, other than the California useful to analyze a potential exposure statistical significance for¨ exposures EPA, has classified DE as a known effect of a feature of the 2003 rule, longer than 30 years [Bruske-Hohlfeld, carcinogen [Garshick, E., et al. (2003), p. which is adopted in this final rule—the I., et al. (1999), p. 405]. An exposure 17]. Studies have a great degree of availability of additional driving and response analysis and risk assessment of uncertainty due to study design and on-duty hours through the use of the 34- lung cancer and DE found a 1 to 2 exposure assumptions, measurement hour recovery provision. If utilized to percent lifetime increased risk of lung issues, and synergistic effects of various the extreme, this would allow another cancer above a background risk of 5 pollutants, among other variables. 17 hours of driving time and 24 hours percent among workers in the trucking [Bailey, C.R., et al. (2003), p. 478]. of on-duty time in a 7-day work week, industry, based on historical Excluding rats, animal studies are compared to the limit of 60 hours of extrapolation of elemental carbon levels overall negative with regard to lung driving time without the recovery [Steenland, K., et al. (1998), p. 220]. A tumor formation following DE exposure. provision. To examine the effect of the large case-control study of bus and In rats, lung tumors are produced by 2003 rule on driver work hours, FMCSA tramway drivers in Copenhagen found a lifetime inhalation exposure to many compared an earlier survey of drivers negative association between lung different particle types. These exposures operating under the pre-2003 rule with cancer and increased years of are characterized as ‘‘lung overload;’’ a recently completed survey. In a 7-day employment [Soll-Johanning, H., et al. however, numerous analyses point to a work week, the 451 drivers who (2003), p. 25]. Finally, a meta-analysis of lack of relevance of data from lung- responded to the earlier survey worked, 29 studies addressing occupational overloaded rats to human risk on average (driving and other on-duty exposure to DE and lung cancer showed calculations, particularly at time), 64.3 hours per week [Campbell, that 21 of the 23 studies meeting the environmental or ambient levels [Bunn, K.L., & Belzer, M.H. (2000), p. 104]. In inclusion criteria, observed relative risk W.B., et al. (2002), p. S122]. As noted 2005, FMCSA evaluated a sample of estimates greater than one (probability earlier, EPA’s risk assessment on DE, driver logs and determined that the 489 of a CMV driver developing lung cancer based on long-term (chronic) exposure,
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49985
concludes that DE is ‘‘likely to be emission standards (2007) will generate emissions). DE from heavy vehicles carcinogenic to humans by inhalation.’’ a net reduction in pollutant emissions, represents about 23 percent of all Studies show a causal relationship despite growth in diesel use [Sawyer, emissions from mobile sources. DE from between exposure to DE and lung R.F. (2003), p. 39]. heavy vehicles has also declined from cancer, but EPA has not concluded that EPA models project on a national 1990 to 2005 (average 55 percent DE is a human carcinogen and cannot basis the amount of emissions or reduction in emissions) and is projected develop a quantitative dose-response pollutants expected annually from all to decline further until 2030 (average 88 cancer risk. The rat inhalation studies mobile sources. These are based on percent reduction in emissions). The underpinning these findings resulted estimates of vehicle miles traveled and following chart shows the projections of from overloading DE and are unrealistic new vehicles entering and old vehicles heavy vehicle DE from the on-the-road exposure scenarios for humans [Ris, C. leaving the inventory, and they reflect fleet by type of emission from 1990 to (2003), p. 35]. changes in vehicle emissions standards. 2030. The chart is based on U.S. EPA’s The acute (short-term) effects of DE, The models project emissions for the ‘‘National Annual Air Emissions which would allow us to determine safe following pollutants: Carbon Monoxide, Inventory for Mobile Sources,’’ which exposure levels, are not currently Oxides of Nitrogen, Volatile Organic was conducted for a variety of known [Id.]. Also, there are not enough Compounds, Particulate Matter (PM– pollutants emitted by on-road vehicles. human test data to make a definitive 2.5), Particulate Matter (PM–10), and [EPA (January 2005)]. Mobile source risk assessment on the chronic long- Sulfur Dioxide. EPA estimates show that emission inventories were directly term respiratory effects of DE. Tests on vehicle emissions from all mobile modeled for 2001, 2007, 2010, 2015, animals, however, suggest chronic sources have declined significantly from 2020, and 2030. Other years were respiratory problems exist [Id.]. Cleaner 1990 to 2005 (average 35 percent obtained by linear interpolation. EPA’s burning diesel fuel standards (2006) reduction in emissions) and are Air Inventory was developed using the combined with cleaner diesel engine projected to decline further until 2030 National Mobile Inventory Model [EPA technologies from more stringent (average 55 percent reduction in (March 2005)].
If diesel or all engine emissions are in currently unknown due to the extreme because changes in DE composition over time fact carcinogenic (not yet proven), then difficulty in measuring and modeling cannot be confidently quantified, and the the risk of developing cancer is a exposure. EPA has noted that there is relationship between the DE components and function of both the amount of DE being great the mode(s) of action for DE toxicity is unclear’’ [Ris, C. (2003), p. 35]. inhaled and cumulative exposure (time). ‘‘uncertainty regarding whether the health Based on EPA emission projections of hazards identified from previous studies Some of those flaws might be lower emissions from on-the-road heavy using emissions from older engines can be addressed by Garshick’s effort to vehicles, continued reduction in health applied to present-day environmental quantify lung cancer risk in the trucking impacts can be expected over time. emissions and related exposures, as some physical and chemical characteristics of the industry through an epidemiological It appears that chronic (long-term) emissions from certain sources have changed study using up to 72,000 subjects exposure to DE may cause cancer. The over time. Available data are not sufficient to [Garshick, E., et al. (2002), p. 115]. At exposure/dose required, however, is provide definitive answers to this question this time, however, according to EPA,
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.000 49986 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
NIOSH, the Centers for Disease Control analyses resulted in significant positive Another possible means of reducing and Prevention, and NIH, there is not trends in lung cancer risk with drivers’ DE exposure would be to curtail enough evidence to declare DE a increasing cumulative exposure. A male driving and on-duty time, or even to carcinogen. Nonetheless, EPA’s finding truck driver exposed to 5 micrograms/ limit a driver’s career to a certain that DE is a probable carcinogen is a m3 of elemental carbon (a typical number of years, all in the interest of cause for concern. EPA has therefore exposure in 1990, approximately five improved health. As indicated above, adopted new diesel engine performance times urban background levels) would however, there is no dose/response requirements and will by 2007 require have a lifetime excess risk of lung curve for DE and the Agency could not refiners to produce low-sulphur fuel [66 cancer of 1–2 percent above a be sure that a given reduction in hours FR 5002]. EPA’s previous and background risk of 5 percent.’’ The or years of service would produce a forthcoming regulatory changes lead to difference between 1 percent and 2 clear benefit. Forced retirement after a a projection of dramatically lower DE percent is obviously quite large, but the certain number of years on the job is through 2030, which will greatly reduce absence of a dose/response curve for DE especially problematical. There is any health effects of DE exposure. and uncertainties in the exposure data nothing in the legislative history of 49 Still, the question remains whether make greater precision impossible. U.S.C. 31136(a)(4) to indicate that today’s rule, regarding exposure to DE, In 1999, however, the Health Effects Congress wanted FMCSA to protect the ensures that ‘‘the operation of Institute (HEI), a non-profit corporation health of drivers by limiting their commercial motor vehicles does not chartered in 1980 to assess the health livelihood. A limit on driving or on- have a deleterious effect on the physical effects of pollutants generated by motor duty hours for the specific purpose of condition’’ of CMV drivers [49 U.S.C. vehicles and other sources, and reducing DE exposure seems 31136(a)(4)]. After reviewing all the supported jointly by EPA and industry, unnecessary, because the available studies mentioned, there is no evidence found significant flaws even in the 1998 evidence shows that drivers have not that today’s rule has a deleterious effect. Steenland study. As summarized by increased their driving or on-duty time This is not to deny the possibility that Bunn et al. [Bunn, W.B., et al. (2002), in response to the 2003 rule. DE may have some impact on truck p. S127], the HEI found that the One of the benefits of the 2003 HOS drivers. The Agency, however, cannot Steenland study ‘‘quite likely suffers rule has been that it limits driver duty attempt to address a problem without from an inadequate latency period, periods to 14 consecutive hours per day data on its extent and severity. The data making it completely unsuitable for with no extensions for intervening off- duty periods. Under the pre-2003 rule, on exposure to DE is notoriously reaching any qualitative or quantitative drivers were allowed a 15-cumulative- deficient. As Garshick and his conclusions about the link between DE hour duty period but could extend their colleagues noted, exposure and lung cancer.’’ maximum duty period indefinitely by Furthermore, the workers in the study ‘‘The ideal marker of DE exposure would taking off-duty time during their be a single marker that would be were exposed to an inseparable mix of workday. This perpetuated the problem inexpensive, easy to measure, and clearly gasoline and diesel fumes. ‘‘Indeed, of excessive waiting time for pick up linked to the source of diesel emissions. during the 1960s (the critical years of and delivery of freight at shippers and However, the reality is that DE is a complex the Steenland study from a latency receivers, because the drivers were mixture, and in many real-life scenarios it perspective), diesel fuel represented may not be the only important source of expected to place themselves in off-duty exposure to the individual particles and only 4–7 percent of the total fuel sales status while waiting. A 1999 study of gases that constitute DE. In addition, the (cars and trucks). Moreover, in the dry freight truckload carriers by the mechanism of the health effects and specific 1960s, gasoline-fueled vehicles had no Truckload Carriers Association (TCA) causal agents are uncertain. The best diesel after-treatment, so that emissions from revealed that drivers spent nearly seven exposure marker is likely to be more complex gasoline-fueled vehicles likely would and involve the measurements of molecular hours waiting for each freight shipment have been comparable to those from that they picked up and delivered. organic tracers and elemental carbon. The diesel vehicles’’ [Id.]. nature of the exposure assessment and The non-extendable 14-hour marker chosen may also depend on Given the uncertain effects of provision of the 2003 rule has given mechanism of health effect postulated, and exposure to DE, FMCSA could not motor carriers greater leverage to insist may include measurement of exhaust gases include this factor in any cost/benefit that shippers and receivers reduce (such as ozone and nitrogen oxide) in the analysis for any regulatory change it waiting time. At the 2005 Annual setting of nonmalignant respiratory diseases. wished to consider. Some changes are Meeting of the Transportation Research Although current literature identifies DE as a beyond FMCSA’s authority. EPA has Board (TRB) in January 2005, in health hazard, insight into a dose-response exclusive authority to set emission Washington, DC, several large carriers relationship is limited by factors related to standards for new trucks, and NHTSA stated that as a result of the 14-hour both cohort selection and exposure has comparable jurisdiction over assessment. The development of an exposure rule, they are increasingly charging model in the existing DE epidemiologic equipment standards for new vehicles. detention fees when shippers and literature is hindered by a lack of exposure FMCSA retains a degree of authority to receivers cause delays. As a result of the measurements upon which an exposure order the retrofitting of safety 14-hour provision, shippers and model can be developed, uncertainty equipment to vehicles already in service receivers have had to improve the regarding the best measurement or marker(s) [see 49 CFR 1.73(g)], but it is unclear efficiency and productivity of loading indicative of exposure, and uncertainty what CMV equipment, if any, could be docks. Many drivers have commented regarding historical exposures’’ [Garschick, installed on the current fleet to reduce that waiting time has been significantly E., et al. (2003), p. 21]. the driver’s exposure to DE. A driver’s reduced. Reduced waiting time has a One of the best works to date on DE, ability to open one or both side positive impact on drivers. First, it lung cancer, and truck driving is a series windows could defeat any air-cleaning reduces the total duty period for the of studies by Steenland and his technology that might be added to the driver, and reduces unproductive and colleagues published between 1990 and tractor, and all drivers spend time often uncompensated time. Second, 1998. The abstract of the 1998 study outside the vehicle at terminals, truck loading docks were cited by Garshick concludes that, ‘‘[r]egardless of stops, and other locations where [Garshick, E. et al. (2003), pp. 24–25] as assumptions about past exposure, all exposure to DE is unavoidable. having high levels of DE particulate
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49987
matter. Thus, reduced waiting time available to drivers that eliminate idling standard for the workplace for reduces driver exposure to DE and by providing hot or cold air for the unprotected ears is 90 decibels adjusted could have beneficial impacts on driver sleeper berth, cable TV, and internet (dBA) limited to 8 hours per day (29 health. access through an attachment to the side CFR 1910.95). FMCSA also has adopted Diesel emissions have been falling window of the tractor. The expected a 90 dBA noise standard (49 CFR reduction in engine idling in the next steadily since the early 1990s and will 393.94). Twenty-five percent of the few years should amplify the health and continue to decline for many years to work force in the United States is environmental benefits of EPA’s come. To whatever unknown extent DE regularly exposed to potentially regulations. FMCSA has thus concluded damaging noise [Suter, A.H., & von may cause lung cancer, EPA’s long- that, while DE probably entails some Gierke, H.E. (1987), p. 188]. In 1995, the range regulatory program is expected to risk to drivers, after a thorough review FHWA Office of Motor Carriers reduce that risk. Three recent of the data available, it is the Agency’s developments may accelerate that best judgment that, compared to the pre- conducted a study of noise in CMVs. downward trend. The first is the cost of 2003 rule, today’s rule neither causes The study showed that noise levels in diesel fuel, which makes idling more nor exacerbates that risk. CMV cabs as reported over the previous expensive. The second is the spread of 25 years (1970–1995) had decreased local regulations that limit CMV engine E.3. Exposure to Noise [Robinson, G.S., et al. (1997), p. 36]. The idling time. The third is the The Occupational Safety and Health following table summarizes noise proliferation of truck-stop services Administration (OSHA) noise exposure findings from several studies: FIGURE 2.—CMV CAB NOISE LEVELS DOCUMENTED FROM SEVERAL STUDIES
Study Model year (year) (# of trucks) dBA
Enone (1970) ...... 1960s era (4) ...... >100 dBA. Morrison & Clark (1972) ...... 1960s era (16) ...... 85–90 dBA. Hessel (1982) ...... 1972–1977 (8) ...... 74–87 dBA. Reif & Moore (1983) ...... 1968–1978 (58) ...... 85–90 dBA. Morrison (1993) ...... 1993 (4) ...... <80 dBA. Micheal (1995) ...... 1995 (6) ...... <80 dBA. Van den Heever (1996) ...... 1995 (16) ...... 83 dBA. Robinson (1997) 1 ...... 1990–95 (9) ...... 89 dBA. Seshagiri (1998) 1 ...... 400 measurements ...... 83+ dBA. Note 1: Study findings added to the table reported by Robinson (1997).
The truck-cab noise levels for nine with the driver’s side window open, 3.9 exposure, even if drivers drove the trucks Robinson et al. evaluated were dBA with both the window open and maximum hours allowed by this final found to be 89.1 dBA for eight radio on, and 1.6 dBA for operations on rule. conditions of highway driving. This was four-lane highways. Cab-over-engine E.4. Exposure to Vibration very close to the FMCSA permissible vehicles appeared to be quieter than exposure limit of 90 dBA. A sound conventional tractors by about 2.6 dBA. Exposure to whole body vibration dosimeter 1 was used to determine the Long-haul (city to city) operations on (WBV) is believed to cause fatigue, noise doses experienced by 10 truck hilly terrain appeared to be quieter than insomnia, headache, and ‘‘shakiness’’ drivers during normal commercial runs on flat terrain by about 2.2 dBA, shortly after or during exposure. After of 8 to 18 hours. The noise doses were probably indicating the strong effect of daily exposure over a number of years, measured with rest breaks, meal breaks, speed (tire, wind, and engine noise). WBV can affect the entire body and may and refueling breaks included, so they These researchers found conditions result in a number of health disorders. represented realistic projections of where CMVs exceeded the Canadian Occupational exposure to WBV may actual truck trip noise doses noise limit of 85 dBA, mainly when the contribute to circulatory, bowel, experienced by drivers. Robinson et al. radio was on and the driver’s side respiratory, muscular, and back also conducted pre- and post-workday window open [Seshagiri, B. (1998), p. disorders. The combined effects of body audiograms for a group of 10 drivers. 205]. posture, postural fatigue, dietary habits, Those results indicated that CMV In its comments to the docket, the long hours, and loading and unloading drivers suffered no temporary hearing American Trucking Associations (ATA) are the possible other causes for these loss after a normal driving shift. reported that modern tractors usually disorders. In a more recent study of tractors of have dBA levels ‘‘in the low 70’s’’ and Vibration in CMVs is a function of the different models, makes, and ages that a ‘‘typical Class 8 sleeper tractor age and maintenance of the vehicle, operating on routes that covered cruising at 60 mph on level ground speed, type of roadway, and driving different types of Canadian terrain, pulling a load will have a sound behavior and performance; and the most noise exposure was measured (over 400 pressure level of about 69–73 dBA.’’ important variable is the condition of measurements) under several The research discussed earlier the roadway. There are no vehicle conditions. The noise level recorded suggests cab noise levels are well within manufacturing or operational standards ranged from 78 to 89 dBA, with a mean FMCSA’s 90-dBA noise standard. The for the control of WBV, either in this of 82.7 dBA. The noise levels increased noise levels documented have not been country or abroad. The medical and by 2.8 dBA with the radio on, 1.3 dBA shown to exceed OSHA or FMCSA research communities use the 1997 standards. Therefore, the noise levels in International Standards Organization 1 A sound dosimeter is an instrument used to CMVs should not result in significant (ISO) 2631–1 guidelines for evaluating measure exposure to sound. hearing loss over a lifetime of on-the-job WBV.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 49988 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Teschke conducted a thorough review pain [Magnusson, M.L., et al. (1996), p. efficient heating and air conditioning of the research on WBV and back 710]. Another questionnaire survey in units. Physical stress on drivers, disorders (including over 99 studies). the Netherlands found significant including road vibration, is reduced by This research found a number of associations between vibration and low power steering. Many trucks are also potential risk factors associated with back pain as well as a significant dose- equipped with automatic transmissions, lower back pain (LBP). Besides WBV, response [Boshuizen, H.C., et al. (1990), further reducing stress. Improved the study identified a number of other p. 109]. A recent review of the health suspension gives the driver a better ride, confounding variables that are literature on WBV and lower back pain and provides better handling. ATA associated with lower back pain. The (LBP) concluded that, while ‘‘there is maintained that the comfort and safety following risk factors have been found probably an association between WBV improvements in truck tractors improve identified in the review of research in and LBP,’’ there was no evidence of the driver’s conditions, leading to a this area: (1) Driver’s age, (2) working dose-response [Lings, S. & Leboeuf-Yde, reduction in stress and fatigue. Two postures, (3) repeated lifting and heavy C. (2000), p. 290]. carriers also commented that modern lifting, (4) smoking, (5) previous back Studies addressing musculoskeletal trucks have greatly reduced noise and pain, (6) falls or other injury-causing disorders in truck drivers by and large vibration. events, (7) stress-related factors evaluate the effects of WBV. A Much of the research on whole body including job satisfaction and control, questionnaire survey of Japanese truck vibration within a CMV and its effects and (8) body condition and morphology drivers found short resting time and on lower back pain or musculoskeletal including weight, height, physical irregular duty time to be significant risk disorders was based on subjective condition, and body type [Teschke, K., factors for lower back pain. It also found measures and only weak associations et al. (1999), p. 7]. The number of positive but insignificant associations have been found. Given all the other potential risk factors and confounding with long driving time per day and confounding factors that have been variables makes it difficult to isolate the week, but the hours classified as long shown to be associated with these effects of WBV, or even to conclude that were not specified [Miyamoto, M., et al. conditions (age, postures, lifting, WBV is the cause of lower back pain. (2000), p. 186]. A study of knee pain in smoking, falls, job satisfaction, and body A recent study of volunteer drivers at taxi drivers found a significantly condition, including weight) it is highly a large transport company in Canada increased risk of knee pain in workers unlikely that vibration is the cause of found that operators were not on with more than 10 hours of daily LBP or musculoskeletal disorders. The average at increased risk of health driving. A significant dose-response few studies of more objective measures effects from daily exposure when trend was also seen [Chen, J.C., et al. of vibration have not shown vibration to compared to the ISO guidelines. The (2004), p. 575]. be, on average, above the health risk study did, however, find several Our review of the literature on WBV level (with ISO standard). instances where drivers in a 10-hour and its potential health effects, such as When comparing the 2003 HOS rule shift were exposed to WBV levels low back syndrome, is inconclusive to today’s rule, it is the Agency’s best established in an earlier ISO standard. because the studies rely primarily on judgment that, based on the studies These instances were highly correlated self-reporting and application of risks reviewed and comments received, WBV to road conditions [Cann, A.P., et al. derived from other environments. The does not pose a significant health risk to (2004), p. 1432]. One of the criticisms of literature related to commercial driving CMV drivers. this study was that vibration was and other musculoskeletal disorders measured at the floor or base of the suffers from the same limitations. A E.5. Cardiovascular Disease driver’s seat, and measurements did not causative relationship can only be Cardiovascular disease (CVD), take into account the attenuation of viewed as suggestive within this principally heart disease and stroke, is vibration by the driver’s seat. Most seats context. the nation’s leading killer for both men in CMVs today are air suspended to The studies that tested vibration in and women among all racial and ethnic better isolate the driver from vibration. CMVs found that vibration was close to groups. Almost one million Americans Much of the WBV research is based the ISO health risk threshold, but it did die of CVD each year— 42 percent of all on self-reporting through surveys and not consistently exceed the threshold. deaths. CVD does not kill just the questionnaires to identify factors that The introduction of new trucks, which elderly—it is also the leading cause of are associated with lower back pain and reduce the driver’s exposure to WBV, death for all Americans age 35 and back problems. For instance, a would be expected to mitigate any older. More than 16 percent of the questionnaire study of bus and truck potential effects of vibration. ATA deaths due to CVD are individuals 35 to drivers in Vermont and one in Sweden submitted comments to the docket that 64 years old. The causes of CVD are found a significant association between modern truck cabs are much quieter, are complex. The following table identifies long-term vibration dose and low back well ventilated, and have well designed, some of the known risk factors: FIGURE 3.—RISK FACTORS FOR CARDIOVASCULAR DISEASE
Individual factors Occupational factors Lifestyle factors
Genes Age Sedentary Work Smoking Gender Working Long Hours Alcohol/Drug Use High Cholesterol Work Stress Sedentary Lifestyle Amino Acid—Homocysteine Exposure to Physical Stressors and Injuries Lack of Exercise High Blood Pressure Shift Work Stress Obesity Short Sleep Diabetes Source: American Heart Association.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49989
The NIOSH representative to insufficient sleep may be related to the rest) were significantly elevated in those FMCSA’s health group reviewed the risk of AMI. working 9 to 10 hours per day, more literature regarding CMV driving and Research is under way at NIOSH to than 40 hours per week, and frequent the risk of developing CVD. Since 1992, evaluate mortality risk of independent overtime [Id.]. a number of population research studies truck drivers in the United States. The lack of research literature on from Sweden and Denmark have However, this study is not designed to driver work hours required the driver presented data suggesting an association collect data on hours of service and health team to expand its literature between driving and CVD. In contrast to other CVD risk factors. review into occupations other than occupational studies undertaken in the FMCSA’s NIOSH representative transportation workers. Particularly United States, these research studies did concluded that current research suggests useful was a study published by NIOSH not attempt to quantify ‘‘hours of service the presence of only a weak association in April 2004 entitled ‘‘Overtime and driving a truck’’ or ‘‘occupational between CVD and truck driving. Extended Work Shifts: Recent Findings chemical and particulate exposures.’’ Additionally, CVD is associated with on Illnesses, Injuries, and Health Thus, these studies provide no data that many other occupational types. No Behaviors’’ [Caruso, C.C., et al. (2004)]. could be used to correlate individual or research studies were found that The NIOSH report documents published group ‘‘exposures’’ and CVD outcomes. permitted an examination of whether research on long work hours (greater No studies conducted in the United additional hours of driving a CMV than 8 hours work per day) and an States were found that permitted impacts driver health as measured by extended work week (greater than 40 examination of long hours of driving increased CVD or AMI. After thoroughly hours per week). among truck drivers and the possible reviewing the collective data, in the The NIOSH review generally association with CVD. Agency’s best judgment, based on the concluded that long work hours appear Swedish and Danish population research available, nothing implicates to be associated with poorer health, studies provide support for the today’s HOS rule in a heightened risk of increased injury rates, more illnesses, or hypothesis that driving occupations CVD or AMI. increased mortality. NIOSH found that have elevated risks for cardiovascular Any increased risk of CVD or AMI individuals working long hours disease. Among drivers, Swedish may be mitigated by the increased off- generally have greater risk of unhealthy population studies indicate the greatest duty time (10 hours off duty) as well as weight gain, increased alcohol use, risk elevations occur among bus drivers, the increase in stabilization from the increased smoking, increased health with relative risks ranging from 50 pre-2003 rule to the 2003 and today’s complaints, increased injuries while percent to 114 percent in excess of rule of the drivers’ schedules (circadian working, poorer neuropsychological comparison populations [Bigert, C., et rhythm). Changes implemented in truck performance, reduced vigilance on task al. (2003), p. 333]. The greatest risk ratio cab design, reducing exposure to measures, reduced cognitive function, reported for truck drivers (a relative risk exhaust, whole body vibration, and reduced overall job performance, slower of 1.66), was reduced to 1.10 following noise may also mitigate the risk of CVD work, and decreased alertness and statistical adjustment for competing and AMI as well. increased fatigue, particularly in the 9th to 12th hours of work. The adequacy of health and disease risk factors. A recent E.6. Long Work Hours study suggests that truck drivers these study findings is addressed later experience no more than a 14 percent The average number of hours worked in this section of the preamble. elevated risk [Bigert, C., et al. (2004), p. in the United States annually has The NIOSH review examined the 987]. increased over the past several decades relationship between hypertension (a Most epidemiologists take a fairly and currently surpasses most countries risk factor for CVD) and long hours. It rigorous view of relative risk values. In in Western Europe and Japan [Caruso, concluded that the research findings observational studies, results are not C.C., et al. (2004), p. 1]. Worker health regarding hypertension were normally accepted as significant if a and safety is a growing area of concern, inconsistent. Park [Park, J., et al. (2001), relative risk ratio is less than 3 and is and thus more attention is being placed p. 244] found no correlation between never accepted if the relative risk ratio on whether there should be limits on the hours worked by Korean engineers, is less than 2 [Brignell, J. (2005)]. In hours of work—similar to the hours of whose work hours during the previous epidemiologic research, increases in risk service regulations for CMV drivers. The month ranged from an average of 52 of less than 100 percent are considered primary question being asked is whether hours to a high of 89 hours per week, small and are usually difficult to there are more adverse health and increased hypertension. This study interpret. Such increases may be due to consequences as a result of longer hours is relevant because the work-hour limits chance, statistical bias, or the effects of of work. are reasonably close to the limits a CMV confounding factors that are sometimes Beyond the previous study mentioned driver could work under this final rule. not evident. regarding CVD and long hours [Liu, Y., CMV drivers, on average, work A number of Japanese hospital record & Tanaka, H. (2002), p. 447], the driver slightly more than 60 hours per week, studies have examined the association health team was able to find only one but FMCSA operational data show they between long hours of work (not hours other study that met their selection rarely reach the maximum of 84 work of driving) and acute myocardial criteria and was directly related to CMV hours per week. This number of work infarction (AMI). The most recent study drivers and long work hours [Jansen, hours is beyond the typical number of suggests that weekly work time in N.W.H., et al. (2003), p. 664]. This study work hours examined by the research in excess of 60 hours is related to focused on employees from 45 the NIOSH review. The NIOSH review increased risk of AMI [Liu, Y., & companies in the Netherlands. Self- did, however, examine three studies Tanaka, H. (2002), p. 447]. This research administered questionnaire data from that identified the relationship between suggests a two-fold increased risk for 12,095 employees of the Maastricht very long shifts and immune function or overtime work (crude risk of 2.1, Cohort Study on Fatigue at Work were performance. Nakano [Nakano, Y., et al. reduced to 1.81 after statistical used. The researchers concluded that (1998), p. 32] reported better immune adjustment for competing health and employees needed greater recovery function in taxi drivers who were disease risk factors). The authors because their recovery scores (subjective allowed to work overtime as compared conclude that overtime work and measure of the self-perceived need for with drivers having work-hour
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 49990 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
restrictions. This study examined taxi health and safety. Few studies have off-duty period by two hours. In short, drivers working 48-hour or longer shifts examined how long working hours based on current knowledge and the in 1992 and again in 1993. Leonard influence health and safety outcomes in limited research that is available, in the [Leonard, C., et al. (1998), p. 22] older workers, women, persons with Agency’s best judgment there is no reported declines in two tests of pre-existing health problems, and evidence that the number of work hours alertness and concentration in medical workers with hazardous occupational allowed by the HOS regulation adopted residents who had worked 32-hour on- exposures.’’ today will have any negative impact on call shifts. They reported no significant The NIOSH review of the literature on driver health. declines in a test of psychomotor long work hours documents a E.7. Shift Work and Gastrointestinal performance or a test of memory. A significant lack of data on general health Disorders survey of anesthesiologists linked long effects. NIOSH reported that even when working hours to self-reported clinical looking at fatigue and accidents, The term ‘‘shift work’’ covers a wide errors [Gander, P.H., et al. (2000), p. identifying ‘‘differences between 8-hour variety of work schedules and implies 178]. and 12-hour shifts [is] difficult because that shifts rotate or change according to Two studies in the NIOSH review of the inconsistencies in the types of a set schedule. These shifts can be either identified the relationship between long work schedules examined across continuous, running 24 hours per day, hours and compensation. Siu and studies. Work schedules differed by the 7 days per week, or semi-continuous, Donald [Siu, O.L., & Donald, I. (1995), time of day (i.e., day, evening, night), running 2 or 3 shifts per day with or p. 30] and van der Hulst and Geurts [van fixed versus rotating schedules, speed of without weekends. Workers take turns der Hulst, M., & Geurts, S. (2001), p. rotation, direction of rotation, number of working on all shifts that are part of a 227] suggested that compensation may hours worked per week, number of particular system. Shift work is a reality reduce adverse effects of long work consecutive days worked, number of for about 25 percent of U.S. workers. hours. Siu and Donald [Siu, O.L., & rest days, and number of weekends off’’ Similarly, 22 percent of CMV drivers Donald, I. (1995), p. 31] reported a [Caruso, C.C., et al. (2004), p. IV]. work between the hours of 12 p.m. and relationship between perceived health Additionally, van der Hulst 6 a.m. [Campbell, K.L., & Belzer, M.H. status and overtime pay. Men from conducted a review of 27 recent (2000), p. 115]. Hong Kong who received no payment empirical studies of long work hours This final rule is intended to make for overtime reported more health [van der Hulst, M. (2003), p. 171]. He work schedules more regular by complaints when compared with men showed that long work hours are adhering more closely to a 24-hour who received payment. In addition, van associated with some adverse health clock than the pre-2003 rule. It increases der Hulst and Geurts examined the outcomes as measured by several the number of consecutive off-duty relationship between reward and long indicators (CVD, diabetes, disability hours to 10 and provides for a non- working hours in Dutch postal workers. retirement, subjectively reported extendable daily driving window of 14 Rewards included salary, job security, physical health, subjective fatigue). He hours. The pre-2003 rule provided only and career opportunities. They reported concluded, however, ‘‘that the evidence 8 hours of consecutive off-duty time and that high pressure to work overtime in regarding long work hours and poor prohibited driving after a cumulative combination with low rewards was health is inconclusive because many of total of 15 hours on duty per day. Under associated with a three-fold increase in the studies reviewed did not control for that rule, however, drivers could extend the odds for somatic complaints as potential confounders. Due to the gaps the 15-hour limit by taking off-duty compared with a reference category of in the current evidence and the time. Today’s rule should provide some low overtime pressure in combination methodological shortcomings of the health benefits to CMV drivers, because, with high rewards. Alternatively, high studies in the review, further research is as previously shown, drivers are getting pressure in combination with high needed.’’ more consecutive hours of sleep and rewards did not differ from the The driver health team found very will generally adhere more closely to a reference category. [van der Hulst, M., & little research to evaluate specifically 24-hour clock (14 hours on-duty and 10 Geurts, S. (2001), p. 227] This research the association between long work hours off-duty = 24 hours). suggests that if workers are adequately hours and CMV driver health. No By minimizing on-duty time and compensated for their time, they are less research studies were found that maximizing driving time, however, a likely to have health complaints. This is permitted an examination of whether driver could operate on a backward an important variable that can play a additional hours of driving or non- rotating 21-hour schedule (11 hours significant factor in conducting driving time would impact driver driving and 10 hours off duty = 21 subjective types of research on the health. Research on other occupations is hours). Although drivers might effects of long work hours and health. It mixed and does not show conclusively conceivably employ that schedule, data also raises concerns regarding most that long hours alone adversely affect suggests drivers do so only rarely. Even subjective data regarding the health worker health. Also, FMCSA’s 2005 when it does occur, this schedule is still consequences of long hours that do not survey of driver hours indicates that the beneficially closer to 24 hours than the look at compensation as a factor. 2003 rule has not increased the overall pre-2003 rule, which allowed a With regard to the relationship number of hours a driver actually works backward rotating 18-hour work day (10 between long work hours and worker (see Section I.1). Overall, this rule hours driving and 8 hours off duty = 18 health, the NIOSH review concluded improves driver health compared to the hours). that ‘‘research questions remain about pre-2003 and 2003 rules through a The driver health team examined the ways overtime and extended work combination of provisions (see research on the health effects of shifts influence health and safety. Few discussion of Combined Effects, Section disrupting the circadian rhythm. The studies have examined how the number J.11). The Agency has adopted the non- circadian rhythm spans about a twenty- of hours worked per week, shift work, extendable 14-hour driving window and four-hour day, exemplified by the shift length, the degree of control over the 10-hour off-duty requirement; these normal sleep-waking cycle. Circadian one’s work schedule, compensation for provisions shorten the driving window rhythms in humans originate from a overtime, and other characteristics of allowed before 2003 by one hour (or clock circuit in the hypothalamus that is work schedules interact and relate to more, in some cases) and lengthen the set by information from the optic nerve
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49991
about whether it is day or night. One of significantly more likely than the twin with the National Sleep Foundation to the earliest studies and most definitive exposed to day work to report lower develop an education and outreach works in the area of shift work by Taylor ratings of subjective health (17.8% program to inform the motor carrier and Pocock showed no relationship versus 10.7% who stated that their industry of the problem of sleep apnea between shift work and mortality health was poor). The study did not and how it can be effectively addressed. [Taylor, P.J., & Pocock, S.J. (1972), p. look at objective measures of health. E.9. Driver Health Summary 201]. Two recent studies used The most significant finding was how experimental conditions to evaluate the similar the twins remained and that Today’s rule provides for 10 hours of impact of an altered circadian rhythm shift work did not adversely affect consecutive off-duty time, giving drivers on insulin secretion. The first [Morgan, important health measures (such as the opportunity to obtain 7 to 8 hours L., et al. (1998), p. 449] found a longer BMI, weight, sleep habits). of restorative sleep per day. Research on sleep-wake cycle, such as might occur The general consensus in the shift the implementation of the 2003 rule in rotating shift work, to be associated work research community therefore is shows that drivers are sleeping 6.28 with increased insulin resistance and that while certain work schedules may hours of verified sleep and this is within glucose response. In the second study, result in health problems, there are few normal ranges consistent with a healthy 261 shift workers completed a Standard epidemiological studies of shift workers, lifestyle. Actually, the data shows that, Shift Work survey in an investigation of and more empirical data is needed. compared to pre-2003, drivers are on health and well-being [Barton, J., & Furthermore, no aspect of the 2003 rule average sleeping more than an hour Folkard, S. (1993), p. 59]. Workers using or this final rule promotes the use of longer per day. a forward rotating schedule were more shift work within the transportation On the issue of exposure, FMCSA has likely to complain of digestive and industry. FMCSA knows that some not found any evidence that drivers are cardiovascular disorders than those on a drivers will drive at night because of working significantly longer hours as a backward rotating system. This finding backward rotations of schedules or as a result of implementation of the 2003 is counterintuitive because most fatigue result of their preference to drive at HOS rule, although it would be and shift work research suggests that a night. The rule is ‘‘shift-neutral’’ with permissive. While exposure to diesel forward rotating schedule is better from regard to driving during the daytime or exhaust may pose a cancer risk, no a sleep and fatigue standpoint. The nighttime. Therefore, in the Agency’s definitive link has been yet established. authors concluded that the combination best judgment, this final rule should Without a definitive link it is impossible of direction of rotation and length of pose no greater risk to driver health than to determine the actual risk or estimate break when changing from one shift to the pre-2003 and 2003 rules with the societal costs of DE to CMV drivers’ another may be a critical factor in the respect to shift work. By promoting 24- health. However, based on EPA health and well-being of shift workers hour cycles, today’s rule should, in estimates of lower emissions (starting in [Id., p. 63]. point of fact, aid driver health in regard 1990 and continuing until 2030), and In a thorough review of the literature to shift work. the fact that drivers do not appear to be on shift work and health up to 1999, working longer hours, the Agency E.8. Efforts to Improve CMV Driver Scott [Scott, A.J. (2000), p. 1057] believes that any potential health risk to Health concluded that gastrointestinal, CVD, CMV drivers already has been reduced and reproductive dysfunctions are more Recognizing the important role that and will be reduced more in the coming common in shift workers, and that these driver health and wellness play in years. effects may be due to rotating or fixed driver safety, performance, job The noise levels documented in the shifts, number of nights worked satisfaction, and industry productivity, research have not been shown to exceed consecutively, predictability of FMCSA began a research project in May OSHA or FMCSA standards. Therefore, schedule, and length of shift and 1997 to design, develop, and evaluate a the noise levels in CMVs should not starting time. Exacerbation of medical model truck and bus wellness program. result in a significant risk of hearing conditions such as diabetes, epilepsy, The results of the research led to the loss. The studies that tested vibration in and psychiatric disorders, as well as the creation of the ‘‘Gettin’’ in Gear’’ CMVs found that on average vibration diseases noted above, may occur due to program to create heightened awareness was close to the ISO health risk sleep deprivation and circadian rhythm of and interest in driver health and threshold, but it did not consistently disruption. It should be noted, however, wellness. Materials from this program exceed the threshold. Changes in CMV that individuals with these conditions were distributed within the truck and cabs, diesel fuel, and engine designs would not generally be qualified to bus industry and provided basic health, appear to have greatly reduced any drive under FMCSA’s medical nutrition, and fitness information to potential health risks associated with standards. CMV drivers. The ‘‘Gettin’’ in Gear’’ CMV driving. These changes have ˚ In a more recent study,˚ Ingre and program was found to have a positive reduced drivers’ exposure to diesel Akerstedt [Ingre, M., & Akerstedt, T. health impact on drivers who exhaust, vibration, and noise. The (2004), p. 45] investigated the effects of participated in the program, both research has shown that exposure to lifetime accumulated night work based initially and when the Agency followed- these stressors do not to pose a on monozygotic (from a single egg) up with participants [Roberts, S., & significant health risk to CMV drivers. twins. The authors studied 169 pairs of York, J. (1999), pp. 15–28]. This was The research suggests the presence of twins where one of the two twins shown in both lifestyle habits (e.g., only a weak association between CVD worked night shifts while the other twin exercising, resting, eating balanced and truck driving. No research studies worked day shifts. The subjects were all meals) and physical data (e.g., body were found that permitted an over 65 years old and retired. The study mass index; pulse; diastolic blood examination of whether additional found no significant difference between pressure; aerobic, strength, and fitness hours of driving a CMV impacts driver education, weight, body mass index levels). health as measured by increased (BMI), diurnal or circadian rhythm, In addition, FMCSA has assessed the cardiovascular disease or myocardial habitual rise times, habitual bed times, prevalence of sleep apnea among CMV infarction. In the Agency’s best and sleep times. The study found that drivers and the safety impacts of this judgment, based on the research the twin exposed to night work was condition. FMCSA is currently working available, nothing implicates today’s
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 49992 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
HOS rule in a heightened risk of CVD F.1. Issues Related To Driver Fatigue ‘‘sleeping hours.’’ Working/driving or AMI. This regulation addresses the during the ‘‘third shift’’ (midnight to 6 The research on long hours and driver phenomenon of driver fatigue, i.e., the a.m.) has the combined effect of health is very limited. Research on other partial and at times total loss of affording poorer quality daytime sleep, occupations is mixed and does not show alertness resulting from insufficient while requiring the driver to work/drive conclusively that long hours alone quantity or quality of sleep. Sleep plays during times when the physiological adversely affect worker health. Also, a critical role in restoring mental and drive for sleep is strongest. Changes of FMCSA has not found any evidence that physical function, as well as in two or more hours in sleep/wake times drivers are working significantly longer maintaining general health. For most cause one to become out of phase with hours as a result of the 2003 rule. healthy adults, 7 to 8 hours of sleep per the circadian cycle. This disrupts the synchronization of behavioral and Therefore, the Agency has concluded 24 hour period appears to be sufficient biological processes (e.g., cognitive that there is no clear evidence that the to avoid detrimental effects on waking performance, sleep, digestion, and body number of work hours allowed by the functions. Young adults, for example, temperature), often resulting in HOS regulation will have any impact on report sleeping an average of 7.5 hours increased fatigue and performance driver health. per night during the week and 8.5 decrements. Circadian de- While it is generally believed that during the weekend [Carskadon, M.A., & synchronization results from irregular or shift work may result in health Dement, W.C. (2005), p. 18]. In a rotating shifts, especially those that are problems, there are few epidemiological laboratory study that compared the not anchored to a 24-hour day (i.e., that studies conducted on shift workers. The performance of two groups of subjects start and end at different times each most definitive research of shift work that spent 7 and 9 hours in bed, and health showed no relationship day), resulting in poor quality sleep and respectively, performance improved leading to accumulated fatigue. between shift work and worker throughout the study. With 7 hours in mortality. A recent study of twins Backward rotating shifts that start an bed, impaired performance was only hour or more earlier each day also cause suggests that shift work does not alter found on the more sensitive tasks important health measures (such as one to become out of sync with the [Balkin, T., et al. (2000), p. ES–8]. Time circadian cycle, restricting sleep and BMI, weight, and sleep). Regardless, in bed does not necessarily equate to leading to cumulative fatigue. ‘‘Forward today’s rule is ‘‘shift-neutral’’ with time asleep; and time asleep does not rotating shifts—starting at a later time regard to driving during the daytime or always equate to quality sleep. For each day— are not as good as a non- nighttime. Therefore, as previously example, eight hours in bed is not likely rotating shift, but are more compatible stated, in the Agency’s best judgment to yield the same restorative benefit for with the properties of the circadian this final rule should pose no greater someone with a sleep disorder or system than are backward-rotating risk to driver health with respect to shift someone sleeping in a noisy, hot/cold, shifts.’’ [Czeisler, C.A., et al. (1982), p. work. or otherwise uncomfortable 462]. The importance of maintaining a F. Driver Fatigue environment, as it does for a ‘‘normal’’ 24-hour day was highlighted in the 1998 sleeper. Studies of shiftworkers show HOS expert panel report [Belenky, G., et Over the past decade FMCSA has that a given number of hours of sleep al. (1998), p. 5]. been conducting research and reviewing obtained during the late morning The effects of the circadian cycle on the literature on driver fatigue in (waking hours) does not yield the driver alertness are addressed in this support of its effort to revise the equivalent amount of restorative sleep final rule in the 14-hour maximum on- Agency’s HOS regulations. In preparing as the same number of hours obtained duty and 10-hour minimum off-duty this final rule, FMCSA internally during the late night/early morning provisions (see Sections J.6 and J.7), reviewed and evaluated numerous (sleeping) hours [Monk, T. H. (2005), p. which move drivers closer to a 24-hour research reports that were published 676]. day, while allowing some scheduling prior to 1995. The TRB driver fatigue F.2. Circadian Influences flexibility. This rule is far better than team already mentioned conducted a the pre-2003 HOS rule which allowed a literature review to identify studies Humans ‘‘are biologically wired to be backward-rotating schedule of 18 hours concerning hours of service and CMV active during the day and sleepy at per day. Being more closely aligned to driver performance and fatigue night’’ [Monk, T. (2005), p. 674]. We a 24-hour circadian cycle will allow published after 1995. Additionally, the have a homeostatic drive to sleep that drivers to obtain better rest, mitigate driver fatigue team reviewed additional interacts with the circadian cycle [Van driver fatigue, and improve CMV safety. studies that were referenced in the Dongen, H.P.A., & Dinges, D.F. (2005), comments to the 2005 NPRM. The p. 440]. It has been well established that F.3. Driving, Duty, and Off-Duty Times pertinent information from all these mental alertness and physical energy A review of the past and current reviews was used in guiding the rise and fall at specific times during the research provides support for adopting development of this rule and is circadian cycle, reaching lowest levels a maximum 14-hour driving window, discussed in context under the relevant between midnight and 6 a.m., with, for which, when combined with the 10 provisions in Section J of this preamble. some people, a lesser but still hours off-duty provision, helps maintain This section provides a discussion of pronounced dip in energy and alertness a 24-hour clock (circadian cycle) and driver fatigue research relevant to the between noon and 6 p.m. [Van Dongen, provides enough time for most drivers various provisions finalized in today’s H.P.A., & Dinges, D.F. (2005), p. 439]. to obtain adequate sleep before rule. The following subsections will To stay alert throughout one’s waking returning to work. discuss research on: (1) Issues related to period, especially during these Two studies that assess the length of driver fatigue (2) Circadian influences circadian troughs, most adults require 7 driving time have been conducted since (3) Driving, duty, and off-duty times, (4) to 8 hours of quality sleep per day. the 2003 rule went into effect. Split-sleep, (5) Recovery, and (6) Short Sleep obtained during the daylight One is an analysis of data from an on- haul. In addition, the Agency’s current hours of the circadian cycle is generally road field test of a drowsy driver- and future fatigue research activities are of poorer quality than sleep obtained monitoring device. The study discussed in Section G of this preamble. during the nighttime/early morning monitored, among other things, driver
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49993
sleep quantity and the number of upper limits of the driving time. As a to driver fatigue. FMCSA regulations critical incidents (e.g., crashes, near- result, the model’s 95 percent can provide an opportunity for sleep, crashes, and evasive actions) in which confidence intervals in the crash risk but drivers need to maintain responsible the driver became involved, and estimates for the 11th hour of driving sleeping habits. assessed driver fatigue and performance show that the crash risk could be Lin and his colleagues formulated an during critical incidents. Analysis of the significantly higher than driving in the elapsed time-dependent logistic study data, which were collected from first hour, or it could be just slightly regression model to assess the safety of May 2004 to May 2005, found that elevated above the first hour of driving. motor carrier operations [Lin, T.D., et al. drivers included in the study were The most likely cause for this (1993), p. 2]. Using crash data, this sleeping an average of 6.28 hours under inconclusive result is small sample model provides estimates of the the 2003 rule, which requires at least 10 size.2 probability of CMVs having a crash. The hours off duty. For drivers who drove in Sleepiness, performance decrements estimates indicate that increased driving both the 10th and 11th hour, no and crash risk follow the circadian time had the strongest direct effect on significant difference was found cycle, that is, they peak in the late crash risk. All of the data for these between the 10th and 11th hours of afternoon at one of the circadian low estimates were obtained from a single- driving with respect to either alertness points˚ [Wylie, C.D., et al. (1996), pp. 1– less-than-truckload motor carrier. This or involvement in critical events 3; Akerstedt, T. (1997), p. 106]. This fact study has many of the same problems [Hanowski, R.J., et al. (2005), p. 9]. A emphasizes the value of moving toward associated with the time-based logistic similar but pre-2003 on-road study a 24-hour work/rest day. The 14-hour regression models mentioned earlier; [Wylie, C.D., et al. (1996), p. ES–9] with maximum driving window, combined i.e., small sample size in the later hours 80 long-haul drivers who drove either with the 10-consecutive-hour minimum of driving. The authors concluded that 10 (U.S. rule) or 13 hours (Canadian off-duty time provided in today’s rule, crash risks ‘‘are particularly disturbing rule) found that drivers were averaging moves toward stabilizing the 24-hour at 8th hour of driving. Unfortunately 5.18 hours sleep per night. Both the clock by helping to avoid driver shift this is when mathematical structure of Canadian and U.S. HOS rules that were rotation, and providing enough time to the model becomes less certain * * * it in effect at the time required a minimum obtain 7–8 hours of sleep for most weakens our conviction to recommend 8 hours off duty. Thus, comparing these drivers. Rotating shifts that advance or reducing driver hours regulations’’ [Lin, two studies, drivers working under the delay the starting time for each T.D., et al. (1993), p. 10]. Understanding 10-hour minimum off-duty rule are subsequent shift can cause drivers to the limitations of their models, these averaging over 1 hour more sleep per become out of phase with their authors did not recommend reducing night. In the Wylie, et al. [Id.] study, circadian rhythm, depending on the driving time. They did, however, there was no difference in the amount extent of the change in their starting recommend increasing the minimum of drowsiness observed in video records time. The 14-hour driving window and off-duty time from 8 hours to 10 hours. (for comparable daytime segments) 10-hour off-duty time provisions of this The research findings associated with between the 10-hour and the 13-hour final rule provide an opportunity to driving time are conflicting. The driving times. Self-rating of fatigue maintain a 24-hour work/rest day that research on the effects of fatigue in operational (on-road) and simulated/ increased with driving duration even will allow drivers to maintain circadian laboratory settings generally have found though there were no strong rhythm. FMCSA analysis indicates that no statistically significant difference in performance changes, leading the approximately 22 percent of CMV driver drowsiness or performance authors to conclude, ‘‘Time on task was drivers drive during the early morning between the 10th and 11th hours of not a strong or consistent predictor of hours (midnight to 6 a.m.). These driving. The research analyzing crash observed fatigue’’ [Wylie, C.D., et al. drivers will benefit from the 10-hour data by time of day are typically (1996), page ES–9]. minimum off-duty provision in order to conducted with small sample sizes, Another study under the pre-2003 maximize their sleep time. particularly in the 10th and 11th hours rule, ‘‘Trucks Involved in Fatal Longer daytime work hours combined of driving, and the driver samples are Accidents’’ (TIFA) [Campbell, K.L. with good quality and quantity of sleep arguably not representative of the whole (2005)], found an increase in crash/ (7–8 hours) per day do not appear to industry. These studies generally find fatality risk with increasing driving pose a safety or health problem to CMV increasing risk with longer driving time. This study included only data on drivers. In a driving simulator study, the crashes that occurred from 1991 to 2002, hours. On-road/simulator studies, schedule of 14 hours on duty/10 hours prior to the 2003 HOS rule change. however, have found no increase in off duty for a 5-day week did not appear Additionally, among the 50,000 trucks fatigue or critical incidents while to produce significant cumulative involved in fatal crashes that occurred driving as many as 11 or as many as 13 fatigue over the three-week study period over the 12-year period, only nine hours per day. The Agency regards the [O’Neill, T.R., et al. (1999), p. 2]. crashes involving drivers who drove in research on driving time as In Wylie, et al. [Id.] and other studies, the 11th hour of driving were fatigue- inconclusive. FMCSA is adopting an 11- the authors point out that many of the related. Note that these drivers were hour driving limit for the reasons given drivers showed signs of, or reported, probably driving illegally, since the pre- in sections H and J.5. The data on off- fatigue early in the workweek after their 2003 rule had a 10-hour driving limit. duty time is less problematical. Drivers A recent study [Jovanis, P.P., et al., ‘‘weekend’’ off-duty period [Morrow, appear to be obtaining more sleep as a (2005)] used time-based logistic P.C., & Crum, M.R. (2004), p. 14; result of the 10-consecutive-hour off- regression models to develop crash risk Hanowski, R.J., et al. (2000), p.17; duty provision in the 2003 rule. The estimates by hours of driving. While all Wylie, C.D., et al. (1996), p. ES–9], Agency has therefore decided to adopt drivers drive during the first hour of the implying that sleep habits on non-work a 10-hour off-duty requirement for CMV trip, relatively few drive through the days are likely a significant contributor drivers, coupled with a 14-hour driving 11th hour. Therefore, the sample sizes window. This will move CMV drivers 2 Statistical estimates based on small sample sizes in the 11th hour of driving are typically tend to have large sampling variations, meaning toward a more-stable 24-hour clock. so small that the resulting model has a that detecting statistically significant differences Because there is a good deal of evidence large standard error, particularly at the between two estimates may not be possible. that hours of continuous wakefulness
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 49994 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
are a better predictor of fatigue than without an eight-hour consecutive rest fatigue. Alluisi’s research [Alluisi, E.A. driving time, a 14-hour non-extendable period), increased the risk of fatality (1972), p. 199] involved subjects who driving window will help to reduce over twofold;’’ and that, ‘‘* * * split- worked 8 hours a day for 3 days, driver fatigue, compared to the shift sleeper berth use increased the risk followed by a 4 hours on/4 hours off extendable 15-hour window included in of fatality in all analyses except those schedule (similar to driving with a the pre-2003 rule. See Sections H.6 and limited to urban crashes and local pick- sleeper berth) over a 2-day period. He J.5 through J.7 for a more detailed up and delivery crashes’’ [Id., p. 7]. The found that the average performance of discussion of the Agency’s findings and results of this analysis also found that drivers dropped to 67 percent of decisions regarding driving, duty, and accumulating 8 hours of rest over two baseline toward the end of this period. off-duty times. sleeper berth periods increases the risk A 24-hour rest period was sufficient to of fatality to tractor-trailer drivers who permit recovery back to baseline. A F.4. Split Sleep are involved in crashes. IIHS further simulator study examined daytime In the 2003 rule, drivers using trucks concludes ‘‘[t]he fact that risk remained driving of 14 hours on/10 hours off over equipped with sleeper berths were the same regardless of team status a 15-day period [O’Neill, T.R., et al. allowed to split their 10-hour off-duty/ suggests that increased risk of fatality is (1999), p. 36]. These authors found that sleep time into two periods of varying associated with nonconsecutive sleep 24 hours was an adequate amount of length as long as the shorter of the two rather than disturbance from the motion time for recovery. A third study [Feyer, periods was a minimum of two hours. of the truck while sleeping’’ [Id., p. 11]. A.M., et al. (1997), p. 541] found a This exception to the 10-consecutive- Today’s rule is based on the research dramatic recovery with respect to hours off-duty rule had, in many cited and addresses the concerns about fatigue in team drivers who stopped instances, resulted in drivers splitting driver fatigue resulting from sleep overnight in the middle of a 4 to 5 day their sleep into two periods. Drivers fragmentation by requiring a trip. Thus, with less than 24 hours off, could, for example, divide their sleep consecutive 8-hour sleeper berth period a single night of sleep was very helpful over two 5-hour periods. The National to allow drivers to obtain one primary for recovery. A fourth study [Balkin, T., Transportation Safety Board (NTSB) has period of sleep and a second 2-hour off- et al. (2000), p. 1–2] found that whether been critical of the split sleep provision duty or sleeper berth period to be used or not 24 hours was sufficient depended in the past, noting that, ‘‘* * * sleep at the driver’s discretion for breaks, on the sensitivity of the performance accumulated in short time blocks is less naps, meals, and other personal matters. measure used to assess recovery. refreshing than sleep accumulated in The new sleeper berth provision is fully Subjects who carried out performance one long time period’’ [NTSB (1996), p. described in Section J.9 of this tasks during the day and were restricted 46)]. preamble. to 3, 5, or 7 hours in bed at night were Sleep becomes fragmented when F.5. Recovery fully recovered after 1 day of recovery drivers elect to take their sleep in two sleep of 8 hours in bed, if the shorter periods, rather than one 7 to 8 Sleep restriction over several days performance measure was lane tracking hour period. Fragmented sleep has less leads to a degradation in alertness and or simulator driving crashes. If the recuperative value and has been shown driving performance. When sleep is measure was performance on the to be similar to partial sleep deprivation restricted by extended duty periods or psychomotor vigilance test (PVT), a in its effects on performance [Belenky, night work, cumulative fatigue occurs more sensitive test of fatigue, then G., et al. (1994), p. 129]. Studies of truck and an extended off-duty period is recovery required more than 24 hours. crash fatalities indicate that split sleep needed to recover. Past studies have The group who had 9 hours in bed taken by drivers has an adverse effect on indicated that a large percentage of during the work period, but were then CMV safety. In a study of heavy truck drivers (commercial and restricted to 8 hours in bed during the crashes and accidents, NTSB cited noncommercial) get less than the recovery period, did not perform well police accident reports that show commonly recommended 7 to 8 hours on lane-tracking as well as during the decrements in performance occurring sleep per day. [Dinges, D.F., et al. work period, clearly illustrating how earlier for drivers using sleeper berths. (2005), p. 38; Balkin, T., et al. (2000), p. sensitive and essential one’s NTSB also found that ‘‘drivers using 4–48; Mitler, M.M., et al. (1997), p. 755; performance is to even one additional sleeper berths had a higher crash risk Wylie, C.D., et al. (1996), p. ES–10]. hour of sleep. than drivers obtaining sleep in a bed.’’ Many drivers who obtain less than their The TRB driver fatigue team found NTSB reported that ‘‘split-shift sleeper daily requirement of sleep over time two recovery studies that were berth use increases the risk of fatality incur a sleep debt; the resulting conducted with CMV drivers in a field more than two-fold;’’ and ‘‘[s]plit-sleep cumulative fatigue leads to an increased environment. The Wylie [Wylie, C.D., et patterns are among the top three crash risk [Hanowski, R.J., et al. (2000), al. (1997)] study was a small predictors of fatigue-related accidents’’ pp. 11–12]. Recovery time is required to demonstration study of a methodology [NTSB (1996), p. 46]. In summary, restore the mind and body to normal that could be used to evaluate drivers’ NTSB concluded that accumulating 8 function and health, as well as to erase recovery periods. Twenty-five drivers hours of rest in two sleeper-berth shifts the deleterious effects that sleep loss has were assigned into small groups (four to increases the risk of fatality to tractor- on alertness and performance. five drivers) and were used to evaluate trailer drivers who are involved in The TRB fatigue team found five different recovery (12-, 36-, and 48- crashes. studies that provided information hour) periods and driving time. None of An earlier study by the Insurance regarding the recovery time needed for the recovery periods examined were Institute for Highway Safety (IIHS) CMV drivers after working a long week. found to be of sufficient length for examined the association between Four of these studies provide support driver recovery. However, the study sleeper berth use in two periods and for recovery periods of 34 hours or less concluded that the small subject sample tractor-trailer driver fatalities [Hertz, while only one of these studies supports limited the ability to make reliable R.P. (1988)]. The findings from this a recovery period longer than 34 hours. estimates of observed effects [Wylie, study were similar to those reported by Two studies suggest that a single 24- C.D., et al. (1997), p. 27]. the NTSB. The IIHS found that, ‘‘* * * hour period is sufficient time for a The methodology and sample size split-shift sleeper berth use (driving driver to recover from any cumulative nullifies Wylie study findings, and the
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49995
Agency has not relied on this study in weight rating (GVWR) and up] have a Dongen, H.P.A., et al. (2003), p. 125]. A determining the appropriate recovery fatigue-related fatal involvement rate 8 study of New Zealand drivers found that period for CMV drivers. Balkin [Balkin, times higher than class 3–6 trucks drivers could maintain their T., et al. (2000), p. 5–1] as discussed in [10,001–26,000 pounds GVWR]; over- performance until about the 17th hour the previous section, found that after 7 the-road trucks have a rate 18 times of wakefulness; beyond the 17th hour, days of daytime work, when sleep had higher than local service trucks; and the performance capacity was sufficiently been restricted to 5 or 7 hours in bed, rate for tractors exceeds the rate for impaired to be of concern for safety a recovery period of more than 24 hours single-unit straight trucks by a factor of [Williamson, A.M., et al. (2000), p. 3]. was required to return to baseline levels 11’’ [Massie, D.L., et al. (1997), p. 35]. Some short-haul drivers do accrue of the most sensitive performance task. A second study evaluated the stress fatigue, however, and in a field study of For extreme sleep restriction of 3 hours that short-haul drivers face daily. CMV drivers, it was found that short- in bed, 72 hours recovery was Researchers that administered a cross- haul drivers take short naps of 1- to 2- insufficient to bring performance of the sectional questionnaire to 317 CMV hours duration in order to reduce any PVT task back to baseline. drivers found that short-haul drivers fatigue accrued during the course of a While the research on driver recovery have significantly higher stress-related normal work day. This study showed appears limited to five studies that symptoms than the general adult that these drivers take naps within the particularly focus on CMV driver population [Orris, P., et al. (1997), p. work shift while they are waiting for recovery, two simulator studies suggest 208]. These drivers perceived their daily their vehicle to be loaded or unloaded that 24 hours is sufficient for recovery events to be more stressful than the or during normal breaks for meals after 70 hours of daytime driving norm because of heavy workloads and [Balkin, T., et al. (2000), p. 4–63]. Short- [O’Neill, T.R., et al. (1999), p. 2; Alluisi, inflexible schedules. haul drivers are unique in that they do E.A. (1972), p. 199]. One on-the-road Hanowski, et al. (1998; 2000) not drive for long periods of time. As study found that drivers achieve conducted two studies on short-haul mentioned, Hanowski [Hanowski, R.J., adequate recovery after 24 hours off drivers—a focus group and a field study. et al. (2000), p. 17] found that only 40 duty. Another on-road study suggests The first study provided a better percent of their time is actually spent that 36 hours is not quite sufficient with definition of what constituted a short- driving, and that time was scattered regard to PVT measures, but is adequate haul driver and the varied tasks and throughout the day. Therefore, for driving parameters, including lane- demands they encounter [Hanowski, traditional performance models (time- tracking performance during daytime R.J., et al. (1998), p. 1]. The focus groups on-task) do not apply because periods of driving. concluded that driving was not their driving are interrupted during their In balance, most of the research with primary task, accounting for about 40 work day. Based on this evidence, CMV drivers supports the assessment percent (less than 5 hours) of their work FMCSA has concluded that because of that a recovery period of 34 consecutive time, scattered throughout the day. The the uniqueness of short-haul operations, hours is sufficient for recovery from two safety problems most often and because short-haul drivers are moderate cumulative fatigue. The mentioned by short-haul drivers were involved in fewer crashes than long- importance of two night (10 p.m.–6 dealing with poor driving by operators haul drivers, they will be able to a.m.) recovery periods was highlighted of cars, pickups, SUVs, etc., and ‘‘stress maintain alertness and vigilance for an by the 1998 HOS expert panel report due to time pressure.’’ Additionally, additional 2 hours for 2 days per week. [Belenky, G., et al. (1998), p. 13]. The Hanowski, et al. [Hanowski, R.J., et al. The short-haul provision in this final majority of drivers (approximately 80 (2000), pp. 1–162] conducted a field rule takes into account the available percent) are daytime drivers, and would study of short-haul drivers with research on short-haul drivers and likely start their recovery period instrumented vehicles to gain a better addresses one of the key problems between 6 p.m. and midnight. All of understanding of critical incidents that confronted by short-haul drivers—the these drivers would have the occur within short-haul operations. A stress of tight schedules. To set the opportunity for two full nights prior to critical incident was defined as a near context, the research discussed in the start of the next work week. For a crash event, i.e., an event that without Section F, ‘‘Driver Fatigue,’’ and more detailed discussion regarding the evasive action by the driver would elsewhere in this preamble suggests that recovery period provision of this rule, likely have resulted in a crash. Of the driver fatigue is much less of an issue see Section J.8 of this preamble. 249 critical incidents found in the with short-haul drivers than with long- study, 137 were attributed to ‘‘other’’ haul truckers, primarily because they F.6. Short-Haul (i.e., non-CMV) drivers, 77 to the short- return home nightly. Many also have Motor carrier operations that are haul drivers, and 35 were attributed to fixed work schedules. Short-haul conducted solely within a 150 air-mile incidents outside the control of the drivers typically operate during the radius from their terminals and require driver, such as an animal in the road. daytime hours and are able to sleep at drivers to return to their work-reporting Fatigue played a role in only 6 percent night, which is generally preferable to location every night are generally of those incidents, and no fatigue sleeping during the day. Short-haul considered short-haul operations. A crashes were reported [Id.]. drivers do not drive for long periods review of the research literature In determining whether to allow each day, either cumulatively or in a revealed only a few studies on short- short-haul drivers additional time to single session, and driving is usually haul operations. The first study complete their deliveries, the Agency followed by the physical activity of reviewed was the Massie study [Massie, relied on both laboratory and field unloading throughout the day, which D.L., et al. (1997)] which found that research studies which confirm the improves alertness. Short-haul drivers short-haul drivers have significantly ability of drivers to work a 16-hour shift are less likely to fall asleep at the wheel fewer fatigue related crashes as without significant degradation of due to driving monotony. In addition, compared to drivers for longer trips (0.4 performance. A laboratory study of 48 short-haul driving generally occurs in percent for short-haul trucks compared healthy adults found the critical wake urban settings requiring high levels of to 3.0 percent for other trucks). Another period beyond which performance alertness, but also providing more important finding was that ‘‘class 7–8 began to lapse was statistically stimuli to drivers. Short-haul crashes, trucks [26,001 pounds gross vehicle estimated to be about 16 hours [Van when they happen, are more likely to
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 49996 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
involve property damage than severe G.1. Fatigue Management Program examined and empirical research injuries or fatalities. Because the short- The FMCSA Fatigue Management methodologies to be employed (Phase haul regime adopted by this final rule Program (FMP), under development in II). In 2005, a contract was awarded to increases the work window available to partnership with Transport Canada, conduct the empirical studies (Phase short-haul drivers, it should relieve provides managers and drivers with a III). A final report stating study them, at little risk to CMV safety, from framework for managing driver fatigue conclusions and recommendations the stress and need to hurry caused by through, among other items, awareness (Phase IV) will be completed by the end of 2007. inflexible schedules and limited work and education on screening for sleep hours. The new regulatory regime for disorders, biocompatible scheduling G.3. Advanced Driver Fatigue Alerting short-haul drivers is described in more practices, and an understanding of the Technology detail in Section J.10. need and implications of good sleep The objective of FMCSA’s Advanced G. Current and Future FMCSA habits. The program has been Driver Fatigue Alerting Technology Research developed, pilot tested in the U.S. and research initiative is to increase driver In the 2005 NPRM, the Agency Canada, and is currently in an alertness through a fatigue-alertness requested information on hours-of- evaluation phase where its cost and monitor. This will be done by service research issues, including data safety effectiveness will be assessed in establishing a low cost, reliable, gaps and processes, and methodologies an operational environment. Pending a comfortable, rugged, and user-friendly to facilitate data collection and analysis positive result from the evaluation, the driver fatigue and alertness technology. [70 FR 3350]. The Agency received no FMP materials will be revised and Driver fatigue-alerting technology is specific responses to this request. finalized, implementation guidelines intended to monitor driver drowsiness, However, FMCSA continues to will be developed, and comprehensive provide continual alertness level proactively research health and safety program materials and guidelines will feedback to the driver, and provide issues relevant to HOS. be made available to motor carriers and alerts and warnings when the driver’s The FMCSA Research and individuals who wish to implement alertness level falls below a specified Technology (R&T) 5-Year Strategic Plan them. threshold. outlines a vision for delivering an G.2. Shift Changes and Driver Fatigue Currently, FMCSA in partnership appropriately targeted research and Recovery with NHTSA is conducting a proof-of- technology program that will assist in concept test of a drowsy-driver fulfilling FMCSA’s primary mission to The FMCSA Shift Changes and Driver detection system based on the PERCLOS reduce crashes, injuries and fatalities Fatigue Recovery Study currently under (percent of time the eyelids are closed involving large trucks and way has two primary goals: 80% or more over a given time period) motorcoaches. One of the challenges • Investigate and make concept. PERCLOS has been identified in the R&T 5-Year Strategic recommendations regarding the demonstrated to be the most valid Plan is to curtail driver fatigue and lack minimum duration of off-duty periods measure of driver fatigue. The current of alertness. Fatigue and the lack of required for CMV drivers to recover infrared-based technology to measure alertness are factors in CMV crashes, but from the effects of cumulative fatigue PERCLOS appears to work well at night, more research is needed to better resulting from various work shift but has the limitation of not working in understand the causes of fatigue and conditions. daylight, limiting the system’s utility to methods of improving alertness. Hours- • Complete a study and publish a night driving. FMCSA plans to explore of-service rules and driver-oriented report with conclusions and new technologies and combinations of programs will need to be continually recommendations from the Shift technologies or measures, such as evaluated and improved. R&T will Changes and Driver Fatigue Recovery steering, lane tracking, etc. that may investigate, by means of simulator and Study. overcome these limitations, and field studies, the factors affecting fatigue Hours-of-service initiatives in both investigate development of a more and the recovery times. Other initiatives the United States and Canada have robust system. The objective is to identified in the R&T 5-Year Strategic highlighted scheduling issues closely identify and develop a relatively low- Plan will also result in the research and related to shift changes, in particular, cost device to be used primarily to evaluation of driver health issues. the issue of ‘‘weekend’’ recovery from reinforce driver fatigue training and Moreover, in an effort to address the cumulative fatigue. Although CMV promote behavioral change to assure complex HOS health issues confronting drivers may take their ‘‘weekends’’ on drivers are well rested. CMV drivers, FMCSA anticipates any day of the week, the issue of G.4. Effects of Vehicle Ergonomics on working with NIOSH on areas of mutual concern is the recovery process that Driver Fatigue concern and interest. occurs during these days off. If some FMCSA is identifying, through the degree of sleep deprivation occurs The FMCSA Effects of Vehicle use of surveys, the best practices during the workweek for drivers Ergonomics on Driver Fatigue initiative employed by experienced CMV drivers (especially when that week has involved plans to identify design alternatives to to manage their fatigue. This study will night driving and/or shift changes), it is assess the effects of vehicle ergonomics be published later this year. In addition, critical that drivers have sufficient time on driver fatigue. There have been many FMCSA has the following fatigue- off during their ‘‘weekend’’ to recover human factor studies designed to related studies that are under way in full alertness and physical vitality. This determine the effects associated with 2005 and will continue for the next continuing research is focusing on the driving a CMV. However, there are no several years. recovery process in the context of current studies to determine the effects This research and survey of best various schedules including day of ergonomics on driver fatigue and practices may contribute to educational driving, night driving, and rotating CMV safety. Therefore, it is difficult for initiatives, to technological aids, to the shifts. After conducting a review of the FMCSA to provide guidance or support rulemaking process on EOBRs, and to relevant literature (Phase I), a research to ergonomic-related rules that could other aspects of CMV operation and plan was developed that includes improve safety. This study will review regulation. recommended hypotheses to be the project objective, conceive design
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49997
alternatives, examine methods, evaluate necessarily begins with the first hour, offered an opportunity to analyze feasibility, and develop a final design which must be the most frequently empirical, real-world data obtained incorporating a pilot study capable of driven. However, when examining the under the 2003 HOS rule. The primary demonstrating the approach’s viability. relative risk of a fatigue-related crash by goal was to determine the effect of the hours of driving, or the number of 11th hour of driving on driver H. Crash Data trucks involved in fatigue-related fatal performance and drowsiness. FMCSA compiled and reviewed crashes in a given driving hour as a Data collection for the study, ‘‘A Field recent large truck crash data throughout percent of all large trucks involved in Operational Test of a Drowsy Driver the industry to assess the impacts of the fatal crashes in the same hour, the Warning System,’’ began in May 2004. 2003 rule on crash rates, and to results trend differently. The likelihood All data collected through May 1, 2005 determine if there are ways to improve a truck driver was fatigued at the time were used in this analysis. The the 2003 rule to better address fatigue of a fatal crash generally increases with researchers have found no statistically and fatigue-related crashes. This review the number of hours driven. TIFA data significant difference in the number of consisted of examining the following show that the relative risk of a large ‘‘critical’’ incidents in the 10th and 11th studies and data sources: (1) Trucks truck being involved in a fatigue-related hours of driving [Hanowski, R. J., et al. Involved in Fatal Accidents (TIFA), (2) crash in the 11th hour of driving or later (2005), p. 9]. The study defines critical Virginia Tech Transportation Institute is notably higher than in the 10th hour incidents as crashes, near crashes (VTTI) (preliminary), (3) Penn State of driving. (where a rapid evasive maneuver is University (preliminary), (4) data Despite its scope and complexity, needed to avoid a crash) and crash- submitted in comments to the NPRM, however, TIFA data must be treated relevant conflicts (which require a and (5) Fatality Analysis Reporting with caution. The number of fatigue- crash-avoidance maneuver less severe System (FARS). related crashes that occurred in the 11th than a near-crash, but more severe than H.1. Trucks Involved in Fatal Accidents hour of driving or later is extremely normal driving). When the occurrence (TIFA) Data small. Of the roughly 1,000 trucks of critical incidents is used as a involved in fatigue-related fatal crashes surrogate for driver performance The Trucks Involved in Fatal between 1991 and 2002, only nine were decrements, there is no statistical Accidents (TIFA) file combines data operating in the 11th hour of driving difference between the 10th and 11th from the FARS with additional data on time. hour of driving. The study has also the truck and carrier collected by the The HOS rule in effect when the TIFA determined that drivers are not University of Michigan Transportation data were collected allowed only 10 measurably drowsier in the 11th than Research Institute (UMTRI) in a hours of driving, required a minimum the 10th hour of driving. These results telephone survey with the truck driver, off-duty period of only 8 hours, and may be related to another finding, that carrier, or investigating officer after the allowed driving within a 15-hour drivers appear to be getting more sleep fatal crash. TIFA records six variables: window that could be extended by the under the 2003 rules than they did fatigue, time of day, power unit type, amount of off-duty time taken during when the minimum off-duty period was carrier type, intended trip distance, and that period. The 2003 rule, which only 8 hours. Compared to four sleep hours driving since the last 8-hour off- allows up to 11 hours of daily driving studies conducted under the pre-2003 duty period. but requires 10 hours off duty, may have rules (see section E.1), the Hanowski The report used by the Agency reduced the risk of driver fatigue and study found that drivers operating [Campbell, K.L. (2005)] reviewed TIFA thus the percent of large truck fatal under the 2003 rule are obtaining over data for the years 1991 through 2002 crashes involving fatigue. The 1 hour of additional sleep per day [Id., (the most recent year available). The applicability of TIFA data under the p. 8] sample size of this file represents over regulatory environment created by the It should be noted, however, that the 50,000 medium/heavy trucks involved 2003 rule is no longer clear. study is not yet complete. The study in fatal crashes in the U.S., roughly FARS, the source of the crash data for involves 82 drivers working for three 1,000 of which were fatigue related. The the TIFA study, does not contain trucking companies who had driven a objective of this report was to identify information on driving hours at the time total of 1.69 million miles as of May 1, the operating conditions where the most of the crash. TIFA researchers therefore 2005, under the 2003 HOS rule. A copy fatigue-related crashes occur and to contact the driver (or the employing of this VTTI analysis is in the docket. determine the association of fatigue risk carrier) after the fatal crash to collect H.3. Crash Risk and Hours Driving: factors with fatal crashes. such information. However, a good deal Interim Report II Over the period reviewed, the report of time can elapse (more than a year in found a gradual decline in the percent some cases) between the date of the In January 2003, the Pennsylvania of trucks involved in all fatal crashes crash and the date the TIFA researcher Transportation Institute at Pennsylvania where truck driver fatigue was present first contacts the driver (or the State University began work for FMCSA at the time of the crash, with employing carrier). This delay raises the to model the effects of various fluctuations around the downward question whether the driver can commercial driving operational trend. Campbell also noted that ‘‘[b]oth accurately recall his/her driving time so measures (hours driving, hours of rest, prevalence and risk point to long-haul long after the incident. multi-day driving patterns) on crashes tractor drivers as the appropriate focus [Jovanis, P.P., et al. (2005)]. This study of efforts to reduce the incidence of H.2. Virginia Tech Transportation collected records of duty status (RODS) fatigue.’’ Institute Study for 7-day periods prior to crashes, as When examining the prevalence of FMCSA contracted with the Virginia well as for a non-crash control group. fatigue-related fatal crashes by the Tech Transportation Institute (VTTI) to The RODS were collected between number of hours driven at the time of collect and analyze data on crash risk January 2004 and December 2004. the crash, the data reveal that the during the 10th and 11th hour of driving Through time-dependent logistic majority of such crashes occur in the as part of an on-the-road driving study regression modeling, the study found a early hours of the trip. This is largely VTTI was conducting under an FMCSA/ pattern of increased crash risk attributable to exposure, since each trip NHTSA joint initiative. This study associated with hours of driving,
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 49998 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
particularly in the 9th, 10th and 11th from 3 for-hire motor carriers. The rates. Figure 4 shows changes in DOT hours, and multi-day driving. The study researchers obtained RODS for 231 7- recordable accidents, preventable also suggests a higher crash risk day periods with one or more crashes accidents, and injuries under the 2003 associated with sleeper-berth and 462 7-day control periods with no rule, as reported in several comments. operations. For all operations, the study crashes. Driving in the 11th hour In general, the data show that crash and found that the 11th hour of driving has occurred only 34 times. injury rates were lower in the year since a crash risk of more than three times H.4. Comments on Crash Risk and Data the 2003 rule went into effect in January that of the first hour. 2004. Like the VTTI study, this study is Many companies and associations incomplete. All RODS were collected submitted data on crash and injury FIGURE 4.—CHANGES IN ACCIDENT AND INJURY RATES FROM 2003 TO 2004 [Per million miles]
Commenter Fleet size Crash or injury type 2003 2004 Percent change
Maverick Transportation 1100 power units ...... DOT recordable accidents ...... 0.63 0.60 ·4.8 Preventable accidents ...... 0.32 0.24 ·25 Crash-related injuries ...... ·30 Roehl Transport ...... 1600 power units ...... DOT accidents involving injuries ...... 0.08765 0.06554 ·25 ABF Freight System ...... 1635 road tractors ...... Over-the-road accidents ...... *1.49 1.42 ·4.6 Preventable road accidents ...... *0.715 0.586 ·15 Injuries for over-the-road drivers ...... ·41 CR England ...... 2550 power units ...... Collision-related injuries ...... ·1.9 Overnite Transportation 6000 power units ...... DOT recordable accidents ...... 0.84 0.80 ·4.8 DOT preventable accidents ...... 0.31 0.31 0 Collision-related injuries ...... ·8.6 Werner Enterprises ...... 8700 tractors ...... DOT recordable accidents ...... 0.6898 0.7092 +2.8 Chargeable accidents ...... 0.3311 0.3238 ·2.2 J.B. Hunt ...... 11,000 tractors ...... DOT recordable accidents ...... ·10 DOT preventable accidents ...... ·16 Driver injuries as a result of motor ...... ·19 vehicle accidents. Schneider National ...... 13,340 tractors ...... Preventable major (over $100,000 in ...... ·36 cost accidents. Fatigue-related major accidents ...... ·50 Worker’s compensation claims from ...... ·10 vehicle accidents. ATA survey ...... 77,000 to 79,000 trucks DOT recordable accidents ...... 0.60 0.57 ·5.0 DOT preventable accidents ...... 0.24 0.24 0 Injuries ...... 0.81 0.75 ·7.4 FedEx ...... 71,000 motorized vehi- At FedEx Express, fatigue-related ...... ·3.8 cles. accidents. At FedEx Ground, DOT recordable ...... ·9 accident rate. At FedEx Freight, driver injury rate ...... ·4 National Private Truck 63 questionnaires ...... DOT recordable accidents ...... 0.4921 0.4248 ·13.7 Council. Minnesota Trucking As- 85 questionnaires (61% Preventable/recordable crashes ...... 61% of mem- sociation survey. long-haul carriers). bers reported no change. 33% reported a decrease. * Five-year average. Blank cells indicate data not reported.
In addition to the information rule is superior to the pre-2003 rule rulemaking. FARS data do provide this provided in Figure 4, eighteen other from the perspective of overall safety. ability. Second, FMCSA crash data companies and associations reported a Two State government agencies, experts believe that, for a variety of decrease in crash rates, but did not however, pointed out that the FMCSA reasons, MCMIS currently fails to provide data to support their claims, Motor Carrier Management Information capture roughly 20 percent of the fatal and 8 others found little change in crash System (MCMIS) data show an increase crashes that are reported in FARS. rates between 2003 and 2004. The in CMV crashes. FMCSA considered the Because of these MCMIS limitations, Commercial Vehicle Safety Alliance use of MCMIS data to examine changes FMCSA chose to use FARS data for its (CVSA) cautioned that additional data in truck-related crashes between 2003 analysis. over a longer period of time are needed and 2004. However, the Agency decided The information provided by to determine to what extent the 2003 to utilize FARS data for this analysis commenters is not available from any rule has impacted large truck safety. (see below), in lieu of available MCMIS other source, but there is undoubtedly ATA reported data showing that data, for two reasons. First, the MCMIS some variability in the methods and carriers had statistically significant crash data do not provide researchers accuracy with which the data were lower average crash rates in 2004, the ability to isolate fatigue-related collected. Equally important, the crash causing ATA to believe that the 2003 crashes, which are critical for this and injury reductions reported by
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 49999
commenters cannot be definitively national motor vehicle crash data at least 75 percent of the total crashes attributed to the effects of the 2003 rule, available. and fatalities later included in the though some commenters noted that the FMCSA began by analyzing the 2003 Annual Report Files for those years. rule is the only major variable that FARS Annual Report File. Because the Since the earlier months of the calendar changed from 2003 to 2004. 2004 Annual Report File had not yet year are reported more completely in been released at the time the analysis for the Early Assessment File, FMCSA H.5. Fatality Analysis Reporting System this rulemaking was conducted, FMCSA restricted its analysis to the first 9 (FARS) examined its predecessor, the ‘‘Early months of 2003 and 2004. Assessment File,’’ which typically FMCSA examined all fatal crashes FARS is a national census of fatal contains most of the fatal crashes that involving large trucks from January crashes involving motor vehicles, eventually appear in both the Annual through September of 2003 and 2004, as including large trucks. FARS data are Report and Final FARS data sets. For well as those where the truck driver was reported annually by the States, example, a NHTSA comparison of coded as fatigued at the time of the maintained by NHTSA, and are calendar years 2002 and 2003 indicates crash. Results from this year-to-year generally recognized as the most reliable that the Early Assessment File captured comparison are presented in Figure 5. FIGURE 5.—FATAL CRASHES INVOLVING LARGE TRUCKS [Calendar years 2003 and 2004 (first 9 months of each year)]
Fatigue-related (truck driver) Calendar year Total crashes Number crashes Percent
2003 ...... 3,120 54 1.7 2004 ...... 2,954 43 1.5 Year-to-Year Difference (Number) ...... ·166 ·11 ·0.2 Year to-Year % Difference ...... ·5.3 ·20.4 ·11.8 Source(s): 2003 Fatality Analysis Reporting System (FARS) Annual File; 2004 FARS Early Assessment File, National Highway Traffic Safety Administration.
Figure 5 shows that the total number both of which may have ensured that provisions of the 2003 rule has not been of fatal crashes involving large trucks drivers operating in the 11th hour were harmful. However, the data summarized decreased by 166, from 3,120 in 2003 to more fatigued than would be the case in Figure 4 were undoubtedly collected 2,954 in 2004. This represents a 5.3 under the 2003 rule. Finally, the pre- and reported with differing degrees of percent reduction. The number of large 2003 rule allowed only 10 hours of statistical sophistication. Still, the truck crashes where the driver was driving, which means that drivers number of drivers employed by the coded as fatigued dropped by 11 operating in the 11th hour were out of carriers that provided information is crashes, or 20.4 percent. More compliance with the rules at the time, very large and the downward trend in importantly, however, fatigue-related and therefore may not be representative accidents and injuries is unmistakable. fatal crashes are down from 1.7 percent of drivers legally operating in the 11th Preliminary FARS data show that of all crashes in 2003 to 1.5 percent in hour after adoption of the 2003 rule. there were fewer fatigue-related fatal 2004, an 11.8 percent reduction. The on-going studies by the Virginia CMV crashes in the first nine months of These reductions in fatigue-related Tech Transportation Institute and the 2004, when drivers and carriers were fatal crashes are very small, and are not Pennsylvania Transportation Institute subject to the 2003 rule, than in the enough to allow final conclusions about are being conducted under the 2003 same months of 2003, when they were the long-term impact of the 2003 rule on HOS rule and therefore avoid one of the subject to the previous rule. Fatigue- highway safety. However, the available problems associated with TIFA data. related fatal crashes as a percentage of information may suggest that fatigue- One finds that the 11th hour of driving all CMV fatal crashes were also down in related crashes overall are trending in poses an increased crash risk while the 2004. This result is similar to the the right direction. other finds no statistical difference information provided in motor carrier between the 10th and 11th hours of comments to the NPRM. The downward H.6. Conclusion driving. Because of the relatively short trend is clear, but the data do not allow Available information on the effect of time since the 2003 rule was adopted, a calculation of crash risk for each allowing 11 hours of driving time is both studies acknowledge a additional hour of driving. inconclusive. TIFA is a large data set considerable amount of uncertainty In short, the available crash data do based on crashes that occurred across which may be resolved once the not clearly indicate whether the 11th the nation over a relatively extended datasets increase. hour of driving, combined with the period. While the statistical risk Nearly all of the motor carriers and other provisions of the 2003 rule, poses increases rather sharply in the 11th hour trucking organizations that submitted a significant risk. Because the data are of driving, in all the years from 1991 to comments to the docket reported lower not clear, for the purposes of this 2002 TIFA classified only 9 fatal crashes crash and injury rates in 2004, when the rulemaking’s RIA, FMCSA that occurred in the 11th hour of driving 2003 HOS rule was first enforced, than conservatively assumed that the as fatigue-related. Furthermore, TIFA in 2003. This downward trend reveals increased fatigue crash risk of driving in data were collected at a time when nothing specific to the 11th hour of the 11th hour could be explained by the Federal HOS regulations required only 8 driving time, nor can it be attributed TIFA data as summarized in Campbell hours off duty, and allowed driving directly to the 2003 rule, but it does 2005, and FMCSA tests the robustness within an extendable 15-hour window, suggest that the net effect of the various of the conclusions of this analysis
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50000 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
through a sensitivity analysis that 31136(c)(2)(A) and 31502(d)]. Such worked after implementation of the assumes an even higher relative fatigue consideration is clearly expected to 2003 rule, as well as average nightly crash risk of driving in the 11th hour. influence the Agency’s rulemaking sleep. Data compiled or reviewed to FMCSA carried out a cost/benefit decisions. The Department of answer these questions included that analysis of a 10- and 11-hour driving Transportation currently uses $3 million obtained from the 2005 FMCSA Field limit and other aspects of this final rule. as the ‘‘value of a statistical life’’ (VSL) Survey, the 2004 Owner-Operator The results are described fully in for rulemaking purposes. A 10-hour Independent Drivers Association section K.1 and in the Regulatory driving limit would essentially have a (OOIDA) survey, the 2004 Stephen Impact Analysis (RIA) filed separately VSL more than 21 times the current Burks Private Carrier Survey, Schneider in the docket. Motor carrier operations DOT standard. This cost per life saved National, Inc. (a large, for-hire truckload were modeled very elaborately. As is substantially higher than the carrier), and the Virginia Tech discussed above, the Agency used a maximum $10 million per statistical life Transportation Institute study. time-on-task multiplier based on the cited by the Office of Management and I.1. 2005 FMCSA Field Survey TIFA data. The model assumed that the Budget (OMB) in its guidance to Federal risk of the 11th versus the 10th hour of agencies on conducting regulatory In January 2005, FMCSA initiated a driving increased, as based on the TIFA impact analyses [OMB Circular A–4, p. survey by its field staff to assess the data. FMCSA estimated that a 10-hour 30]. Setting the maximum driving time motor carrier industry’s implementation driving limit would save no more than at 10 hours would impose upon the and use of the 2003 rule. The data 9.3 lives per year compared to an 11- motor carrier industry, an important collected were based upon the driver hour limit, but at an annualized net cost sector of the American economy, records of duty status, or time records, of $526 million ($586 million in gross regulatory costs entirely as applicable, and included the months costs minus $60 million in safety disproportionate to regulatory benefits. of July 2004 through January 2005. The benefits), relative to an 11-hour limit. In Most of the studies and analyses that survey results are based upon the other words, a 10-hour driving limit report an increased crash risk in the collection of data from a cross-section of would cost more than $63 million per 11th hour of driving are based on data industry in 44 States, and represent a life saved. collected while the driving limit was 10 sizeable population of commercial FMCSA conducted a number of hours and the minimum off-duty period drivers and on-duty periods in calendar sensitivity analyses regarding the 8 hours. The agency expected the new years 2004 and 2005. relationship between fatigue-related 10-hour off-duty period required by the The project was conducted in crash risk and driving in the 11th hour 2003 rule to reduce driver fatigue and conjunction with normal motor carrier to test the sensitivity of the RIA results improve safety, despite allowing 11 review activities during the period of to the assumptions built into the model. hours of driving time instead of 10 January 24, 2005 to February 4, 2005. The sensitivity analyses are contained hours. Comprehensive data to test that While the survey was conducted, all in Chapter 6, Section 8, of the RIA. assumption are not yet available, but compliance and enforcement decisions While the Agency did not explicitly many motor carriers have reported and actions followed established estimate the marginal costs and benefits lower crash and injury rates under the Agency procedures. To enhance the of limiting daily driving to 8 or 9 hours, 2003 rule, and preliminary FARS data quality of the data collected, the Agency FMCSA believes that such a change indicates that fatigue-related fatal truck excluded drivers that were found to would not be any more cost beneficial crashes have declined, both in number have falsified their records. than a 10-hour limit. This is due to the and as a percentage of all fatal CMV Overall, 269 motor carriers were fact that, while the increase in the crashes. This suggests that the pre-2003 surveyed, with 542 driver records relative risk of a fatigue-related crash studies and data connecting the 11th examined. The majority of the survey generally rises after the 8th hour of hour of driving with a higher crash risk (81 percent) was completed in driving (according to the TIFA data), the may no longer be relevant because the conjunction with a compliance review; increase is more notable in the 10th 2003 rule has created better with the remaining (19 percent) in hour and later. Therefore, since the opportunities for restorative sleep, conjunction with a safety audit. A Agency’s economic evaluation shows opportunities which drivers have used compliance review is an in-depth that a 10-hour driving limit results in to good effect. In short, it is FMCSA’s review of a motor carrier’s compliance considerably higher costs than benefits, best judgment that the $526 million net with the Federal Motor Carrier Safety compared to an 11-hour limit (holding cost of a 10-hour driving limit is too Regulations (49 CFR parts 382 to 399) all other HOS regulations constant), it high to justify the modest benefits it and Hazardous Materials Regulations logically follows that limiting driving would generate. This factor, coupled (49 CFR parts 100 to 180), as applicable. time to 8 or 9 hours would yield the with the inconclusive nature of Motor carriers are selected for review same result. Additionally, limiting daily available crash data, has led the Agency based upon safety performance or driving to 8 hours, for instance, could to set the maximum allowable driving receipt of a non-frivolous complaint, or increase the impact of a backward time at 11 hours after 10 consecutive in follow-up to previous compliance/ rotating schedule for some drivers (8 hours off duty. enforcement actions. A safety audit, on hours of driving + 10 hours off duty = the other hand, is a review of the 18 hours) relative to the 2003 rule (11 I. Operational Data carrier’s safety-management practices hours of driving + 10 hours off duty = To better understand how the motor and controls, and is conducted within 21 hours). Such a change has the carrier industry has implemented the the first 18 months of the motor carrier potential to increase fatigue-related 2003 HOS rule and to help assess the beginning interstate operations. The crash risks due to the disruption of safety and cost impacts, FMCSA safety audit is used to both educate the driver circadian rhythms. compiled and reviewed several data sets carrier and gather data to evaluate and Although FMCSA’s mission is on industry’s current use of the 34-hour determine whether the carrier has in improved CMV and highway safety, the recovery provision, the 11th hour of place basic safety management controls Agency is required by statute to driving, the 14-hour tour of duty, and to ensure safe operation of CMVs. consider the costs and benefits of split sleeper berth. Additionally, the Of the carriers surveyed, 85 percent requirements it may impose [49 U.S.C. Agency examined average weekly hours were classified as for-hire motor
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50001
carriers. Of the drivers surveyed, 80 classified as over-the-road drivers (or averaged 2,709 and average runs percent were classified as over-the-road those that did not return to their work- equaled 1,196 miles. Additionally, 666 (OTR) drivers. For the purpose of this reporting location nightly), and as such, (or almost 55 percent) of the 1,223 survey, OTR was defined as a driver night driving may be over-represented survey respondents indicated that they who did not return to the terminal in this sample. were leased to a motor carrier, 284 (or 23 percent) operated under their own (work-reporting location) or home Total Work Hours nightly. authority, and the remaining 273 (or 22 The survey found the following: On average, drivers recorded 8.78 percent) identified themselves as hours of work per day (driving and on- company drivers. 34-Hour Recovery duty not-driving), with a standard Regarding implementation of the 2003 Of the 542 drivers included in the deviation in average hours worked per rule, the survey inquired about OOIDA survey, 393 (or 72.5 percent) used the 34 day of 2.9 hours. The daily hours member use of the 11th hour of daily or more hours recovery provision at worked produce a 7-day average of 61.4 driving, 34-hour recovery, and split least once. For these 393 drivers, a total hours. sleeper berth. Results indicate that of 1,411 recovery periods were While the drivers included in this during the month of June 2004 (the recorded. Looking at the length of all the survey are not representative of the period for which information was recovery periods recorded in the survey entire interstate commercial driver requested), all survey respondents as a (1,411), 67 percent exceeded 44 hours, population, this survey does provide a single group used the 11th hour of 10.8 percent were 36 or fewer hours, valuable snapshot of current operations driving an average of 8.4 times, the 34- and 4.68 percent were the minimum 34 (those under the 2003 rule), as well as hour recovery period an average of 3.1 hours. Slightly less than 27 percent of the ‘‘real world’’ HOS habits of drivers. times, and the split-sleeper-berth the drivers had one recovery period of I.2. OOIDA Survey exception an average of 4.0 times. To 36 or fewer hours, while 11.4 percent examine these survey results as a had one recovery period of the The Owner-Operator Independent percentage of total work periods minimum 34 hours. Drivers Association (OOIDA) conducted available to the driver, we divided a web-based survey of its members in survey results by 7- and 30-day periods, 11th Hour Driving 2004 to assess their experience with the where applicable. For instance, we see Of the 6,850 driving periods 2003 rule. The survey comprised 17 that the 11th hour of driving was used reviewed, 20.7 percent exceeded 10 questions and addressed such issues as during 28 percent of the 30 days in June hours of driving. This includes 4 the use of daily driving, the recovery (or 8.4 divided by 30). Additionally, the percent that reflected driving beyond period, and sleeper-berth provisions, as split-sleeper-berth-provision was used the 11th hour. In those cases where well as the rule’s effect on income, wait during 13 percent of the total days daily driving exceeded 11 hours, either times, time at home, naps, breaks, hours available (or 4.0 divided by 30). Lastly, the driver was in violation or not subject worked, fatigue, and other factors. the 34-hour recovery was used in 80 to the rule at that time. Looking just at The OOIDA survey asked respondents percent of the 3.9 available work weeks the driving periods of OTR drivers, to provide information on their type of in June 2004 (or 3.1 divided by 3.9). FMCSA found that 22.9 percent of these operation by identifying themselves as OOIDA members who identified driving periods exceeded 10 hours of either short-haul, regional, or long-haul themselves as short-haul drivers tended driving. drivers. However OOIDA provided no to use each of these provisions the least. definitions (i.e., ranges of daily miles Regional drivers used the 11th hour of 14 Hour Tour of Duty driven) for the terms regional, short-, driving and the 34-hour recovery the Of the 7,262 tour-of-duty periods and long-haul driver. Of the 1,223 most on average, and long-haul drivers reviewed, 15.3 percent exceeded 12 OOIDA members who provided such used the split sleeper berth the most on hours, and 4.3 percent exceeded 14 information in their survey responses, average. hours. Looking just at OTR driver tours 153 (or 12 percent of respondents) With regard to the rule’s potential of duty, FMCSA found that 16.4 percent identified themselves as short-haul impact on drivers, one survey question exceeded 12 hours and 4.6 percent drivers with total weekly miles asked, ‘‘Have the new HOS regs helped exceeded 14 hours. averaging 2,041 and average runs (or you to establish and maintain a 24-hour lengths of haul) of 387 miles. According work/rest cycle?’’ 34 percent of driver Sleeper Berth to the definition of short-haul respondents felt that the 2003 rule had Of the 2,928 sleeper-berth periods operations used in the 2003 regulatory in fact helped them to establish and recorded, 68 percent exceeded 6 hours, impact analysis (RIA), and the maintain a 24-hour cycle, while 64 and 52.6 percent exceeded 8 hours. A definition used in the RIA for this final percent indicated they experienced no comparison of split-sleeper-berth rule, short-haul drivers are those with improvement within the first six months periods found that the first period average lengths of haul of 150 miles or (two percent did not respond). Among typically had longer hours (on average less. As such, the self-identified ‘‘short- driver types, long-haul drivers revealed 1.5 more hours) recorded than the haul’’ driver respondents to this survey the greatest improvement, with 38 second split. represent what FMCSA considers to be percent indicating that the 2003 rule regional or long-haul drivers, or those helped them establish and maintain a Midnight to 6 a.m. (Circadian Trough) with average lengths of haul greater than 24-hour cycle, while 30 percent of short- Of the 9,798 records evaluated, a total 150 miles. haul drivers indicated that the 2003 rule of 2,776 (28.3 percent) was found to There were 377 respondents to this helped them to establish and maintain have recorded duty/driving time survey (or 31 percent) who identified a 24-hour cycle. between midnight and 6 a.m. In 1,149 themselves as regional drivers, for In response to the question, ‘‘Do you of the records (or 11.7 percent) drivers whom total weekly miles averaged 2,369 get more time at home under the new exceeded 3 hours duty/driving during and average runs equaled 629 miles. HOS regs regime?’’ 20 percent felt they the midnight to 6 a.m. time period. It Lastly, there were 693 self-identified did in fact get more time at home as a should be noted that 80 percent of long-haul drivers (57 percent) in this result of the 2003 rule, while 77 percent drivers included in this survey were survey, for whom total weekly miles indicated they experienced no increase
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50002 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
within the first six months (two percent survey. The 34-hour recovery period With regard to split sleeper berth, the did not respond). In response to this was used on average in 61 percent of the median value was 2 percent. Thus, the question, regional drivers reported the respondents’ runs. This does not median values for the 11th hour of daily greatest improvement (22 percent), necessarily mean, however, that all driving and split sleeper berth indicate followed by long-haul drivers (21 recovery periods utilized the minimum low usage of these provisions, percent), and then short-haul drivers (18 34 hours recovery. In fact, as was seen respectively, by private firms percent). in the FMCSA Field Survey, many responding to this survey. To the question, ‘‘Do the new HOS drivers took more than the minimum I.4. Schneider National regs allow you to get more rest and required 34 hours off duty. The 11th therefore reduce your level of fatigue?’’ hour of driving and split sleeper berth At the Annual Conference of the 29 percent of driver respondents replied were used less often, according to Transportation Research Board (TRB), the 2003 rule did in fact allow them to Burks’ survey. The 11th hour of daily held in January 2005, in Washington, get more rest, while 60 percent driving was used on average in 31 DC, a session was entitled, ‘‘Truck indicated no improvement in rest time percent of runs, while the split sleeper Drivers Hours-of-Service: One Year within the first six months. Regarding berth was used on 26 percent of runs. Later.’’ As part of this session, Mr. the second part of this question, 14 The above percentages are averages, Donald Osterberg, a representative from percent of respondents indicated that so there is variation among firms in the Schneider National, Inc., one of the they never had fatigue. To this last use of the provisions. Some private largest for-hire trucking companies, question, long-haul drivers indicated firms indicated they used each of these presented information on his company’s the greatest improvement. Thirty-two provisions on 100 percent of their runs, experience under the 2003 HOS rule. percent received more time at home and while others indicated that they never During this presentation, Mr. Osterberg felt less fatigued under the 2003 rule. used them. As a result, when reporting noted that roughly 10 percent of the Twenty-three percent of short-haul mean values, any extreme outliers on Schneider fleet used the 11th hour of drivers felt that they received more time either side can skew the results. Thus, daily driving during the months of June at home and therefore felt less fatigued the data may be better understood by and October 2004. The portion of the under the 2003 rule. Driver responses to examining the median value of Schneider drivers using a sleeper berth the complete set of OOIDA survey responses to each of these questions, or to split their minimum 10-hour daily questions can be found in the docket. the point at which half of the survey off-duty periods was 6 percent in early I.3. Burks’ Private Carrier Survey respondents indicated less use of a 2004, falling to roughly 2 percent in Dr. Stephen Burks of the University of particular provision and half indicated June of 2004, and falling further to fewer Minnesota, Morris, conducted a survey more. than 0.5 percent of drivers in October of private fleets in 2004 to determine the The median for the 34-hour recovery 2004. Also, Mr. Osterberg noted that percentage of runs that utilized the three provision was 85 percent, indicating between 26 and 32 percent of Schneider major provisions of the 2003 rule; that half of survey respondents used the drivers used the recovery provision to namely, the 11th hour of driving, 34- provision in fewer than 85 percent of its take between 34 and 44 hours off hour recovery, and split sleeper berth. runs, while the other half used it in between weekly on-duty periods. These Additionally, several other operations- more than 85 percent of its runs (by results are consistent with those found related questions were posed. A total of ‘‘run,’’ it is assumed the researchers in the FMCSA Field Survey discussed 31 firms responded to the survey, were referring to a firm’s weekly runs earlier. Mr. Osterberg’s statements were representing a total of 7,115 power units when discussing the 34-hour recovery supported by data provided upon and 30.3 million miles traveled during provision). Reporting the median value request in a handout to FMCSA after the the month of June 2004. The average run for the 34-hour recovery seems to session. This handout consisted of for this group of respondents was 537 validate the relatively high mean value various summary calculations of miles, with a minimum reported run of reported earlier (61 percent), in that logbook entries pulled for the months of 41 miles and a maximum reported run private firms appear to be utilizing this June and October 2004. These of 2600 miles. A more detailed summary provision quite extensively. Regarding summaries are in the docket. of these survey results is included in the the 11th hour of daily driving, the Regarding commercial drivers’ current docket. median was 10 percent, indicating that use of the most important provisions Results indicate that the 34-hour half the firms surveyed used it in fewer from the 2003 rule, a summary of recovery period is the provision most than 10 percent of runs, while the other responses from the aforementioned data used by private firms responding to this half used it in more than 10 percent. sources is contained in Figure 6. FIGURE 6.—SUMMARY OF SURVEY INFORMATION, CARRIER/DRIVER USE OF 11TH HOUR OF DAILY DRIVING, 34-HOUR RECOVERY PERIOD, AND SPLIT SLEEPER BERTH EXEMPTION
Percent of runs (daily or weekly) using HOS provision Date source 11th driving hour 34-hour recovery Split sleeper berth (daily runs or on- (weekly runs or (daily runs or on- duty periods) on-duty periods) duty periods)
FMCSA Survey ...... 21 1 73 2 N/P OOIDA Survey ...... 28 80 13 Burks Survey ...... 31 61 26 Schneider National Logbook Summary ...... 1 10 2 N/P 1 .05–6 1 Percent of drivers (not daily or weekly on-duty periods). 2 Not provided (NP) because of how the survey data were compiled and/or how they were reported publicly.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50003
I.5. Virginia Tech Transportation comments from approximately 1,590 changed as a result of the 2003 HOS Institute Study commenters on the 2005 NPRM. Figure rule. One hundred thirty-four commenters, An analysis was conducted of data 7 shows the number of comments by primarily drivers, responded to the collected from an ongoing FMCSA– type of submitter. The number of question. Twenty-nine said that the NHTSA sponsored Field Operational comments, particularly for drivers, is 2003 rule made no difference to the Test of a Drowsy Driver Warning greater than the number of individual amount of sleep they obtained, but 60 System. This on-the-road driving study, commenters because some submitted multiple documents, answering in said they obtained more sleep under the performed by Virginia Tech separate submissions each of the new rule. Transportation Institute (VTTI), began questions FMCSA posed. The Insurance Institute for Highway collecting data in May 2004. All data Safety (IIHS) reported that a survey it collected through May 1, 2005 were FIGURE 7.—NUMBER OF COMMENTERS had conducted found that there was a used in the current analysis [Hanowski, BY TYPE ‘‘slight increase in the percentage of R.J., et al. (2005)]. In all, operational drivers (from 40 percent in 2003 to 42 data were collected and analyzed from Number percent in 2004) who said they had 82 CMV drivers working for one of three Commenter type of com- driven while sleepy at least once in the licensed trucking companies. ments past week.’’ The percentage of drivers Preliminary results from this study Trucking Associations ...... 20 who reported actually dozing at the reveal some interesting patterns truck wheel on at least one occasion in concerning sleep duration. The results, Safety Advocacy Groups ...... 9 Other Associations ...... 31 the past month was 13 percent in 2003 based on 1,736 days of data for 73 Law Enforcement ...... 4 and 15 percent in 2004. drivers, show a mean daily sleep time Unions ...... 3 of 6.28 hours with a standard deviation Carriers ...... 223 FMCSA Response of 1.4 hours. Data collected from 80 Drivers: Long Haul ...... 312 When asked about the amount of truck drivers under the pre-2003 rule Drivers: Short Haul ...... 42 sleep drivers were getting with regard to and with different driving schedules, Drivers: Not otherwise specified ... 1,010 the 2003 rule and specifically the 10 found ‘‘drivers averaged 5.18 hours in Other Industries ...... 57 Others ...... 79 consecutive hours off-duty provision, bed per day and 4.78 hours of commenters confirm that drivers are in electrophysiologically verified sleep per Total ...... 1,790 fact obtaining more rest today than day over the five-day study (range, 3.83 under the pre-2003 HOS rule. An hours of sleep . . . to 5.38 hours of Of the carriers submitting comment OOIDA survey referenced in Section I.2 sleep)’’ [Mitler, M.M., et al. (1997), p. letters, 203 letters were from for-hire and a joint NHTSA/FMCSA study 755]. firms and only 20 from private carriers; referenced in Section I.5 of this The ‘‘hours in bed’’ value from Mitler, 112 identified themselves as long-haul preamble add additional support for this et al. is a comparable measure to the carriers and 30 as short haul; 71 conclusion. mean hours of sleep value resulting described themselves as owner- IIHS’ data regarding drivers dozing from this new study. A study of long- operators. It is likely that some of those while driving is not supported by haul drivers [Dingus, T., et al. (2002), p. classified as drivers are owner- current crash data; the data suggest that 205] found self-reported sleep per night operators, but unless they specifically the number of fatigue crashes have for single drivers, while on the road, to stated that, they were not classified in decreased in the first 9 months of 2004 be approximately 5.8 hours. This study that group. The ‘‘Others’’ group includes (43 fatigue crashes) compared to the first was conducted under the pre-2003 rule. private citizens, a few third-party 9 months of 2003 (54). Therefore, even The VTTI study also used single drivers vendors, and one academic researcher; if the IIHS data is accurate and (i.e., no teams); consequently, the most of the private citizens may be statistically significant, the dozing Dingus et al. study can serve as another drivers, but did not state that or provide behavior does not appear to be relating reference point to compare results. a clear indication that identified them as to an increase in fatigue-related crashes. In summary, preliminary results from drivers. It is difficult to comment without the VTTI study have found drivers are The following issue sections provide knowing all of the details regarding the sleeping considerably more (up to 1.5 further details regarding comments IIHS survey. However, based on the additional hours per night on average) submitted to this docket. Although Agency’s experience, one would expect under the 2003 rule than either the issues are discussed one at a time, the that a two percentage point increase in Mitler et al. study or the Dingus et al. Agency stresses that the proper focus is reported dozing could be a function of study found under the pre-2003 rule. on their joint effects and on the sampling error and statistically One rationale for instituting the 2003 resulting response. Section J.11 insignificant. rule was to provide drivers with discusses the combination more additional time off to provide more directly. J.2. Exposure to Environmental Stressors opportunity to obtain sufficient sleep. FMCSA requested comments on how J.1. Sleep Loss Based on the results of the Virginia Tech the 2003 rule, and in particular the Study to-date, drivers appear to be In the 2005 NPRM, FMCSA requested extension of driving time from 10 to 11 getting more sleep per night on average, information on both the beneficial and hours and the shortened driving compared to data collected from drivers adverse effects of the 2003 rule on the window created by the 14-hour limit, under the pre-2003 HOS regulations health of CMV drivers, and expressed would affect a driver’s exposure to [Mitler, M. M., et al. (1997); Dingus, T., particular interest in information about environmental stressors, such as vehicle et al. (2002)]. any increase or reduction in sleep noise, vibration, and emissions. deprivation generated as a consequence Fifty-nine commenters, including 13 J. Comments to Docket and FMCSA of the 2003 rule. How much sleep do carriers, 44 drivers, one law Response drivers operating under the new enforcement organization, and one Between January 24, 2005, and April regulations average on a daily basis, the private citizen, responded that the 2003 5, 2005, FMCSA received 1,790 Agency asked, and how has this average HOS rule had little or no effect on
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50004 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
exposure to environmental stressors. expected that EPA emissions standards blood pressure, anxiety, gastrointestinal They stated that modern truck would result in a significant reduction diseases, and reproductive dysfunction technology has reduced vibration, noise in emissions from new diesel vehicles that it considered potentially affecting levels, and emissions and that the beginning in 2007, current, unmodified, truck drivers. consequences of any additional driving diesel powered trucks would probably NIOSH commented extensively on the time were either offset by the workday be operating through the 2030s. Public issue of driver exposure to diesel fuel restriction, or insignificant. ATA Citizen cited a report recently released exhaust and other vehicle emissions. commented that potential driver by the Clean Air Task Force (CATF), of NIOSH conceded that assessing driver exposure to diesel exhaust (DE) has which Public Citizen is a supporting exposure to vehicle exhaust is decreased to a point below both member, highlighting the toxicity of complicated because of the variety of Environmental Protection Agency (EPA) diesel emissions and numerous acute possible exposure scenarios, including and OSHA requirements, and will health risks associated with exposure to driving, sitting in the cab, or working at probably further improve. ATA diesel emissions. Public Citizen a loading dock. NIOSH noted that few included tables illustrating the concluded that ‘‘Diesel particulate exposure assessments of commercial improvements. One carrier commented matter is well established as a probable drivers had been conducted prior to the that more stringent regulations, carcinogen. * * * Moreover, fine 2003 HOS rule and none have been improvements in technology and road particles have been documented by conducted since. NIOSH reported that conditions, and better maintenance literally thousands of studies as current research indicates that some practices had reduced environmental associated with respiratory and health risks from DE are associated with stressors. cardiovascular diseases as well as particulate matter (PM) in emissions. ATA commented that modern truck premature mortality.’’ EPA emissions standards have led to cabs are much quieter, far quieter than Public Citizen disagreed with FMCSA cleaner burning diesel fuel, and newer the maximum requirement, are well that the impact of a one-hour increase engines produce less PM. NIOSH wrote ventilated, and have well designed, in driving hours is unclear. Arguing that that DE particles increase allergic efficient heating and air conditioning the 2003 HOS rule allowed an increase responses, and might lead to harmful units. Physical stress on drivers, of more than 600 annual driving hours structural changes in the airways, and including road vibration, is reduced by over the pre-2003 rule, Public Citizen that there is an association between PM power steering. Many trucks are also stated that this increase represented and cardiovascular and respiratory equipped with automatic transmissions, hundreds of additional hours per year morbidity and mortality. further reducing stress. Improved when truckers would be exposed to FMCSA Response suspension gives the driver a better ride, elevated levels of DE fumes. They and provides better handling. The concluded that ‘‘A robust body of Most, if not all, of the concerns raised comfort and safety improvements in evidence indicates that the exhaust[s] by commenters regarding driver health truck tractors improve the driver’s are highly toxic and tied to a multitude have been evaluated and are addressed conditions, leading to a reduction in of health risks, and therefore it is earlier in this preamble. FMCSA notes stress and fatigue; and operators could negligent of FMCSA to promulgate an that the majority of commenters, drive an additional hour, ‘‘yet be safer hours of service rule that so particularly drivers, stated that the rule than drivers in the past.’’ Two carriers significantly increases drivers’ exposure will have little or no impact on driver also commented that modern trucks to these fumes.’’ health. The Agency agrees with ATA’s have greatly reduced noise and AHAS criticized FMCSA for using in assessment that modern truck vibration. One carrier said that due to the 2005 NPRM almost exclusively technology has reduced vibration, noise the lack of vibration, the quality of sleep studies that dealt only with commercial levels, and exposure to DE, and that the in a new truck is ‘‘great,’’ while another drivers, arguing that much relevant consequences of any additional driving wrote that drivers become less fatigued research literature existed in other time are either offset by the workday in the improved trucks. work-related areas such as shift work restriction, or insignificant. In contrast to the commenters who fatigue and performance failures. AHAS Public Citizen and AHAS cited a identified little or no exposure to provided numerous citations for studies number of studies that found an environmental stressors, Public Citizen, that it regards as providing directly association between DE and cancer. The Advocates for Highway and Auto Safety relevant findings from other TRB driver health team reviewed these (AHAS), and the National Institute for occupational areas. AHAS asserted that studies and selected studies relevant to Occupational Safety and Health FMCSA ignored relevant research, this rulemaking to be summarized for (NIOSH) responded with extensive which it cited, from EPA and others that the driver health evaluation discussed summaries and citations of current conclude that chronic DE inhalation earlier in this preamble. The standards research applicable to the question of exposure might be a cancer hazard for for inclusion were the validity of the exposure to environmental stressors. humans. AHAS also provided an methodology, the relevance of the Public Citizen stated that the largest extensive list of studies in the field of studied population to truck driving and source of diesel emissions is diesel- occupationally related whole-body the quality of the statistical analysis of powered ‘‘big-rigs,’’ and other highway vibration, and asserted that FMCSA had health outcomes. FMCSA has reviewed diesel vehicles. Truck drivers are not included the most relevant studies the research and does not dismiss the constantly exposed to DE fumes, in the docket. association; however, there have been ‘‘waiting for a load, stopping at a truck AHAS listed and summarized significant changes in diesel engine stop, or operating the truck.’’ The long- numerous studies addressing the design, changes in emissions standards, term effect of breathing DE and other psychological and physiological effects and changes in emission types and chemicals poses a significant potential of long working hours, irregular composition, which make many of these source of risk for truck drivers, Public shiftwork, and accumulated sleep debt, studies inapplicable to today’s Citizen argued, providing numerous and provided lists of sources of statistics environment. EPA has stated there is citations of articles and studies relating and analysis on injuries and illnesses, considerable uncertainty about whether particularly to the health impacts of DE. including psychological disorders, ‘‘health hazards identified from It pointed out that while FMCSA digestive disturbances, headaches, high previous studies using emissions from
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50005
older engines can be applied to present- unrealistic and misleading assumptions. injuries and fatalities, and any evidence day environmental emissions and The study suggests that heavy trucks connecting workplace injuries and related exposures, as some physical and will remain in the inventory for more fatalities to specific aspects of the 2003 chemical characteristics of the than 30 years; therefore changes in EPA rule or previous HOS regulations. emissions from certain sources have standards will have little effect for many FMCSA explained that it was interested changed over time. Available data are years [Schneider, C. G., & Hill, L.B. only in injuries directly related to the not sufficient to provide definitive (2005), p. 8]. FMCSA analysis of HOS regulations and operating a CMV, answers to this question because commercial vehicle registration data not other workplace injuries that are changes in DE composition over time from Polk & Co., a proprietary data outside its jurisdiction. cannot be confidently quantified, and collection firm, found that fewer than 50 Twenty-eight commenters said that the relationship between the DE percent of 2004 registered vehicles the 2003 rule does not have an impact components and the mode(s) of action (Large Trucks over 26,001 GVWR) were on workplace injuries. One carrier, B.R. for DE toxicity is unclear’’ [Ris, C. greater than 10 years old and 87 percent Williams Trucking, which had reviewed (2003), p. 33]. were less than 20 years old. This means the company’s workplace injuries, Public Citizen commented that the that the data being quoted in the CATF stated that there had been neither an largest source of diesel emissions is study are from a model that does not adverse nor a positive change related to from heavy vehicles. While that is true, appear to be accurate—the productive the rule. Work schedules, hours driving, DE is only one contributor to a complex life of a CMV is far less than 30 years. and hours off duty did not affect the pollution mixture, and there are many Potentially, this flaw could have company’s injury rate. other combustion sources. DE from dramatic changes in the predications Twenty-seven commenters expressed heavy vehicles represents only 23 regarding DE. other views about workplace injuries percent of all emissions from all mobile In addition, comments from Public and fatalities. Nearly all of them agreed sources. EPA models show that vehicle Citizen, AHAS, and others regarding the that fatigue and loss of alertness can be emissions from all mobile sources have increased health risk due to DE a contributing factor, but some declined significantly from 1990 to 2005 exposure are all predicated on the commenters pointed out that the (average 35 percent reduction in assumption that drivers are working amount of the contribution varies from emissions). DE has also declined 55 more hours as a result of the 2003 HOS one individual to another. One percent from 1990 to 2005 and it is rule. A drastic increase in driving or on- commenter suggested that injury and projected to decline an additional 88 duty time under that rule is impossible fatality statistics should be broken out percent by 2030. Therefore, drivers are to reconcile with economic reality. The by type of operation. being exposed to less pollution than U.S. economy has been expanding Other commenters were uncertain they were in the early 1990s when strongly for some time, creating about the impact of the rule. Four accurate data first became available. renewed demand for trucking services thought the rule gave drivers more rest Further, any health risk associated and a steady increase in vehicle miles and limited their hours of work, so with DE will continue to diminish with traveled. But there has been no quantum crashes and injuries should be reduced. planned changes in standards for diesel leap in economic activity that would Six mentioned data indicating that fuel and engines. EPA projections are demand or support the greatly extended injuries had decreased in recent years, based on estimates of vehicle miles driving hours asserted by these but they said those decreases were not traveled and new vehicles entering and commenters. Federal Highway necessarily attributable to the 2003 rule. old vehicles leaving the inventory, and Administration data show that the Four believed the rule’s lack of reflect changes in vehicle emissions vehicle miles traveled (VMT) by all flexibility, the extra hour of driving standards. Reductions in diesel trucks increased by 26.03 percent allowed, or the inability to stop the 14- particulate matter are occurring now; between 1994 and 2002, the last year for hour clock, could contribute to fatigue these are not reductions that will be which complete statistics are available. and lead to more crashes. Five seen in the next generation of diesel That works out to an average VMT commenters pointed out that many engines. The CATF study supported by increase of 2.89 percent per year drivers’ injuries occur when they are Public Citizen argues that the Federal [calculated from www.fhwa.dot.gov/ loading or unloading and said that government needs to cut DE further and policy/ohpi/qftravel.htm]. The drivers should not be required or retrofit existing trucks to further reduce theoretical availability of many more allowed to perform these activities. DE. However, as shown the mainstream driving and on-duty hours under the Public Citizen asserted the rule has a research community has not 2003 rule is largely irrelevant. Truckers direct effect on injuries, and accused the quantitatively determined a precise drive to meet the demand for 2005 NPRM of suggesting groundless dose-response relationship between DE transportation, and VMT statistics show limitations on FMCSA’s legal and cancer. In fact, DE at current that demand increases (and occasionally responsibility to address them in the ambient environmental levels is not decreases) in modest annual increments. rule. For example, they stated that the thought to be predictive of cancer; Most of the additional demand is ‘‘Workplace Injuries and Fatalities’’ testing on rats at environmental levels satisfied by adding new trucks and section of the NPRM drew an has not led to the development of cancer drivers to the motor carrier industry. ‘‘unsupportable’’ distinction between [Id., p. 35]. EPA has stated ‘‘the DE The Agency has not found any data that injuries relating directly to the HOS exposure-response data for humans are suggests drivers are actually working regulations and operating a CMV, and considered too uncertain to derive a significantly longer hours. Therefore, in other workplace injuries and confident quantitative estimate of the Agency’s best judgment, drivers are environmental stressors, such as loading cancer unit risk, and with the chronic not exposed to increased health risk as and unloading. Rejecting the Agency’s rat inhalation studies not being a result of the 2003 or today’s rule. position, Public Citizen cited several predictive for environmental levels of FMCSA reports, technical analyses, and exposure, EPA has not developed a J.3. Workplace Injuries and Fatalities literature reviews that assessed non- quantitative estimate of cancer unit The 2005 NPRM requested comments driving issues, including loading and risk’’ [Id., p. 36]. Additionally, the about the impact of fatigue and loss of unloading, sleep apnea, and physical CATF study is based on some alertness on CMV driver workplace activity and their impacts.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50006 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Many commenters suggested For this reason FMCSA requested data packaging, incorrectly marked loads, workplace injuries and illnesses have from the public in the 2005 NPRM poorly maintained forklifts, or slippery decreased in 2004. The Motor Freight regarding 2004 workplace injury and loading dock surfaces. Public Citizen Carriers Association (MFCA) asked its illnesses. concluded that ‘‘FMCSA may not limit membership to provide data and Many commenters cited data that its statutory responsibility to driver information regarding workplace showed that workplace injuries and health for only the period when a injuries. MFCA’s preliminary analysis of illness have decreased in 2004. The trucker is driving.’’ FMCSA has not that data suggests that injuries and Agency recognizes these comments are attempted to confine its responsibility to fatalities have decreased in 2004. They not a representative sample of the whole driving time. The Motor Carrier Safety commented that ‘‘while we are industry; however, FMCSA is Act of 1984, however, requires only that encouraged by these findings, it would encouraged that the information ‘‘the [Agency’s] regulations * * * be premature to attribute the results provided suggests that workplace ensure that * * * the operation of singularly to the change in hours of injuries and illness appear to have commercial motor vehicles does not service rules.’’ FedEx commented that decreased from 2003 to 2004. No have a deleterious effect on the physical ‘‘in their pick up and delivery and their commenters have suggested that injuries condition of the operators’ [49 U.S.C. short and long haul divisions combined, and illness have increased solely as a 31136(a)(4)]. FMCSA is not, and cannot there was a 5.44 percent reduction in result of the 2003 HOS rule; nor does be, responsible for every physical injuries even with a 2.2 percent increase FMCSA. infirmity experienced by truck drivers. in hours worked for all employees.’’ Many commenters, particularly There are many threats to health and FedEx Freight reports the overall injury drivers, said that they did not see the safety in the modern world, and most of and illness rates for its driver connection between the HOS regulation them have nothing to do with the HOS population decreased by almost 4 and workplace injuries and illness. The regulations. The NPRM concentrated on percent from 2003 to 2004. Landstar Agency, based on its experience, matters the Agency can address. Systems, Inc. commented that it had however, believes that there clearly is a experienced 8.6 percent fewer on the job connection between driver fatigue and J.4. Lifestyle Choices injuries with the 2003 HOS rule. alertness. Further, one driver responded In the 2005 NPRM, FMCSA noted that Maverick Transportation, Inc. that ‘‘the loss of alertness or fatigue lifestyle choices, including diet and commented that it does not track affects a truck driver’s ability to focus exercise, may impact driver health and injuries by loading/unloading, but the and judge distances causing crashes. safety, but also concluded that total number of injuries experienced by These crashes are less prevalent under ‘‘Realistically, such choices cannot be its drivers in 2004 decreased by 19 the new HOS because a driver gets more regulated by FMCSA.’’ The Agency percent and crash-related injuries rest under these rules than under the requested commenters to provide old rules.’’ decreased by 30 percent compared to information on the effect lifestyle Public Citizen asserted that the NPRM 2003. J.B. Hunt commented that it has choices, such as diet, exercise, and the on-going safety initiatives concurrent drew an ‘‘unsupportable’’ distinction between injuries relating to HOS use of off-duty time, have on driver with the hours-of-service changes, so it safety and health. is difficult to independently conclude regulations and other workplace Only 36 commenters responded to that any changes in injuries are injuries, which are outside the this request; all appeared to agree that attributable to a single factor. J.B. Hunt jurisdiction of the Agency. ‘‘FMCSA proper diet and exercise are important reported that it experienced a 19 percent expressly distinguishes injuries and elements in maintaining driver health, reduction in injuries categorized as fatalities relating to workplace hazards but two or three commenters were less ‘‘driving/riding’’ from 2003 to 2004. The such as loading and unloading.’’ The certain about the effect of lifestyle carrier also found that injuries related to NPRM stated that FMCSA did not choices on safety. Ten of the getting in and out of the truck declined intend to focus on workplace injuries commenters insisted that healthy by 18 percent. caused by conditions beyond the jurisdiction of the Agency [70 FR 3345], options are difficult to find on the road, FMCSA Response e.g., falling down a staircase at a motor and they were particularly critical of The Agency agrees with ATA’s carrier terminal because a step was fast-food meals at truck stops and the assertion that the occupational injury loose. OSHA has the authority to lack of exercise facilities. and illness record of the trucking regulate that kind of threat to workplace Ten commenters argued that lifestyle transportation industry has improved in safety. Public Citizen seems to assume choices are individual decisions and the last five years. U.S. Bureau of Labor that fatigue is an element in many non- cannot be regulated by the HOS rule, Statistics (BLS) data show that there driving accidents suffered by drivers, except to the extent the rule provides an have been significant reductions in and that the HOS rule is therefore a opportunity for healthy choices and workplace illness and injuries in the ‘‘major contributing factor’’ to such sufficient off-duty time. Three trucking industry—the number of mishaps. commenters approved of the additional nonfatal occupational injuries and FMCSA did not deny that drivers off-duty time provided by the 2003 rule, illnesses involving days away from engaged in loading or unloading are but others thought the 14-hour work has decreased from 152,803 in subject to the HOS regulations; the 60- provision made it difficult to maintain 1996 to 129,068 in 2001, a 16 percent or 70-hour clock continues to run while a proper diet. One commenter believed decrease. Although the industrial drivers handle cargo. The Agency that too much off-duty time had a categories changed slightly in 2003, the simply directed commenters’ attention negative effect. Two commenters number of nonfatal occupational to injuries that are immediately related suggested that private-sector training is injuries and illnesses for truck drivers to the HOS regulations and away from a more effective method of helping decreased 31 percent between 1996 and loading or unloading injuries that might drivers with lifestyle choices than HOS 2003. be caused by any number of other requirements. Two other commenters BLS statistics for 2004 are currently factors completely unrelated to HOS, mentioned FMCSA rules that require being collected and analyzed and will such as shifting cargo, broken medical screening and monitoring for not be available until November 2005. securement straps, inadequate drivers and pointed out that those rules
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50007
already encourage drivers to maintain all men and women were smokers [Id.]. evidence and medical research healthy habits. The use of tobacco products is the demonstrate the ability of physical Public Citizen, however, alleged the leading preventable cause of death in activity to reduce the risk of many NPRM’s ‘‘Lifestyle Choices’’ discussion the United States. Smoking substantially physiological diseases, including heart was illegitimate and a disingenuous increases the risk of cardiovascular disease, high blood pressure, attempt to narrow FMCSA’s oversight of disease, causes about 30 percent of all osteoporosis, diabetes, and breast and driver health. In the opinion of this cancer deaths, and is the leading cause colon cancer, as well as reduce the risk commenter, the HOS rule had of chronic lung disease [Id., p. I–1]. of psychological illnesses such as significant potential to influence a Truck drivers who smoke in their cabs depression, anxiety, and stress [Id.]. driver’s diet and exercise regime, which are perhaps at even greater risk of On three important lifestyle variables, in turn could greatly influence an developing illnesses. They can get a CMV drivers rank well below average. individual’s bodyweight, blood double dose of toxins by inhaling smoke CMV drivers smoke tobacco at nearly pressure, and other health indicators. directly from the cigarette or cigar and twice the rate of the U.S. population, The commenter provided no research or by breathing in any second-hand smoke have questionable eating habits, and do data to support this assertion. that remains inside the cab. not exercise regularly. As a result, twice With regard to lifestyle choices and A significantly higher percent of CMV as many CMV drivers are overweight their effect on driver fatigue, Express drivers were classified as obese compared to the U.S. population. These Inc. commented that its ‘‘experience compared to the population in general lifestyle choices are bound to have indicates the lifestyle decisions made by [Id., p. I–2]. Of 2,945 truck drivers at a profound effects on the health and a driver prior to getting behind the trade show, 73 percent were classified wellness of CMV drivers, and in the wheel as well as decisions made while as being either overweight or obese. Of Agency’s best judgment may, by on the road, are by far the most these drivers, 33 percent were classified themselves, be predictive of higher rates significant factors in fatigue related as obese (i.e., Body Mass Index Greater of cancer, cardiovascular disease, accidents.’’ Additionally, FedEx stated than 30) and 40 percent were classified diabetes, and back problems. that ‘‘lifestyle choices, more than as overweight (i.e., Body Mass Index anything else, have the greatest impact between 25 and 30) [Id.]. Nationally, J.5. Driving Time on fatigue related accidents. Without only 33 percent of men and women FMCSA solicited comments in the question, the lifestyle choices drivers combined are classified as being NPRM on the impacts of incremental make during their off duty time are overweight [Id., p. I–3]. In the research increases in driving time on driver extremely significant. Coupled with literature, obesity is a well-established health, the safe operation of CMVs, and decisions made on-duty during a trip, risk factor for many diseases such as industry economics. In particular, it they are the most critical choices stroke, cardiovascular disease, asked, to what extent did the increase in relating to fatigue prevention.’’ Lastly, hypertension, and diabetes. It also maximum driving time from 10 to 11 with regard to drivers meeting FMCSA exacerbates problems with conditions hours affect health, safety, and medical requirements, Brink Farms such as arthritis or back pain. Evidence economic factors? noted that ‘‘FMCSA can’t regulate also suggests that obesity, in Support for 11-Hour Limit driver’s lifestyle choices, but regulating conjunction with other risk factors, their blood pressure levels is regulating places men and women at a higher risk The majority of commenters (208 out driver’s health. Many of our drivers of cancer [Id., p. I–2]. of 360 or 58 percent) who expressed have had to change their lifestyle due to Roberts and York [Id., p. I–8) opinions on the 11-hour driving rule higher blood pressure than allowed by identified the prevalence of poor eating supported it, including the American these limits. Many of our drivers have habits among CMV drivers. A 1993 Trucking Associations (ATA), the begun walking more, and watching their study of 2,945 truck drivers revealed Truckload Carriers Association (TCA), diet more. Exercise alone keeps a driver over 80 percent of these drivers ate only the Owner-Operator Independent healthier and that also keeps them more one or two meals per day and 36 percent Drivers Association (OOIDA), and the alert.’’ had three or more snacks per day [Id., National Private Truck Council (NPTC). p. I–6]. Furthermore, a 1996 study of 30 In all, six trucking associations FMCSA Response drivers in a wellness program revealed expressed support for the 11-hour The Agency included questions on that their favorite meal item while on driving limit. ATA agreed with the 11- this issue in the NPRM because lifestyle the road was steak or burgers and hour limit and said that it should be choices appear far more likely to typical snacks were chips, fruit, candy, retained. However, ATA also directly affect driver health than many donuts, and cookies. Only 15 percent of acknowledged that the establishment of of the occupational and environmental these drivers ate five or more servings any driving time limit would benefit factors faced by CMV drivers. of fruits and vegetables per day, from continued fatigue-related research. Roberts and York (1997) conducted a compared to 19.1 percent of all males. TCA stated that the limited scientific study for FMCSA entitled ‘‘Design, CMV drivers are more likely to be data available did not show a significant Development and Evaluation of Driver inactive or underactive as compared to distinction between 10- and 11-hour Wellness Programs.’’ They cited a the population in general [Id., p. I–7]. drive times. NPTC said that the 11-hour number of areas where drivers make Despite the importance of regular limit had improved the quality of poor lifestyles choices, for instance by exercise to disease prevention and drivers’ rest by allowing drivers to make smoking. The percentage of smokers health, 50 percent of the truck drivers in it all the way home and sleep in their among truck drivers is nearly double a 1993 study never participated in any own beds. NPTC said that if FMCSA that of the U.S. population. A 1993 type of aerobic exercise and only 8 reverted to a 10-hour limit, the drivers study of 2,945 truck drivers reported 54 percent of these drivers ‘‘regularly’’ would have to forego returning to home percent of the respondents smoke participated in aerobic exercise [Id.]. each evening, or the company would cigarettes or cigars [Roberts, S., & York, The 1997 National Health Interview have to schedule additional drivers and J. (1997), p. I–2]. In contrast, national Survey showed 60 percent of adults do shipments. statistics in 1996 showed that 27.7 engage in physical activity for at least 20 The National Industrial percent of all males and 25 percent of minutes per day. Both epidemiological Transportation League (NITL) said that
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50008 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
the additional hour of driving is commenters, including safety advocacy hours on duty and 12 hours of free time. warranted and justified in light of the groups, unions, and a minority of NIOSH said that this daily cycle would amount of rest that drivers obtain under drivers. be consistent with common scheduling the 10-hour off-duty requirement. NITL Advocacy groups presented the most practices in other industries that use said that the additional hour of driving detailed arguments. IIHS stated that it shifts longer than 8 hours. time increases driver and asset did not believe the increase in daily Both Public Citizen and AHAS productivity, and, in the aggregate, driving time from 10 to 11 hours was suggested that drivers should be reduces the need to bring additional supported by scientific evidence. Public allowed to accrue no more than 10 trucks onto the roads, which translates Citizen argued that FMCSA had not consecutive hours of driving in a shift. into fewer accidents. The National presented in the 2005 NPRM any Both added that the research literature Armored Car Association (NACA) said evidence demonstrating that any and FMCSA itself have shown that that the 11-hour limit is appropriate and changes the Agency would make to the allowing fewer than 10 consecutive reduces risk to the drivers of armored HOS rules would make the eleventh hours would result in even safer cars, who are not allowed to pull off to driving hour safe, much less improve operations. Several drivers also the side of a road or stop overnight at safety, in accordance with the Agency’s supported a 10-hour limit. statutory mandate. These commenters a motel as they approach permissible Economic Effects of 11-Hour Limit workday limits, because of the risk of argued that FMCSA had failed to crime. NACA said that the additional demonstrate how a driver’s initial The Corporate Transportation hour provides a margin of safety for restfulness can ‘‘offset’’ the safety risk Coalition (CTC) stated that its few responding to such contingencies. presented by the additional hour of member companies that engage in long- Five other carriers also provided consecutive driving. haul operations believe the 11th hour of substantive comments supporting the AHAS said that FMCSA had driving has permitted modest 11-hour driving limit. The carriers said recognized and documented in its May productivity gains. Brandt Truck Line, that the one-hour increase in the daily 2000 proposed rule that the risk of a Inc. stated that the additional hour had driving limit has benefited them crash by a commercial driver increases improved productivity (especially in a economically without having any at a geometric or logarithmic rate as the 50-mph State) by eliminating the need detrimental impact on safety. Two of the consecutive hours of driving increase in to incur a sleeper-berth period during carriers said their drivers had benefited each shift. AHAS concluded that by the return trip. This allowed the use of from the 11-hour driving limit. ABF allowing an eleventh consecutive hour day cab tractors (not sleepers), and a Freight said that some of its drivers who of driving, the Agency has increased the miles per gallon improvement of 15 performed defined runs that required absolute risk of commercial drivers percent, and a ‘‘gain’’ of nearly 20 hours close to ten full hours of driving being involved in fatigued-related per week in scheduling continuity, reported feeling less stress under the 11- crashes. which allows drivers to continue the hour driving limit. Crete Carrier The International Brotherhood of same scheduled route each day, rather Corporation said that its operation Teamsters said that any benefits of the than changing routes on a day-to-day cycles indicated that its drivers’ work 10-hour rest period and the 14-hour basis. and sleep patterns had begun to benefit duty-tour were offset by the one-hour ABF Freight stated that in 2004, only from the 2003 rule. The carrier said that increase in daily driving time and the 4.6 percent of its dispatches required its drivers appeared to have adjusted 34-hour restart provision. The the 11-hour rule to complete runs. their driving routines to more closely Transportation Trades Department of While this might rise slightly should the resemble the traditional workday. The the AFL–CIO said that ‘‘[r]equiring a ten rule become permanent, it was not carrier also said that it had teamed with percent increase in driving time as a likely to affect the majority of its shippers and consignees to schedule solution to driver fatigue makes little dispatches, due to the fixed nature of its pick-up and delivery times that were sense.’’ service center markets. The Overnite more consistent with drivers’ circadian Some commenters suggested that Transportation Company stated that the rhythms and to decrease drivers’ non- drivers were being pressured to drive 11-hour driving rule made its operations driving workload and extended the entire 11 hours. An attorney with cheaper and more efficient, because it detention periods. the Truckers Justice Center, who said could now haul freight directly, thus A short-haul carrier that hauls loads that he had represented drivers in using fewer drivers and fewer tractors with special hauling permits said the proceedings under the Surface and trailers driving fewer miles. The 11-hour limit had been especially Transportation Assistance Act (STAA) company saves over $110,000 annually helpful, because in most states it could in which the drivers were disciplined and is able to provide faster transit only move loads during daylight hours. for refusing to drive while impaired due times. The 11-hour limit allowed drivers to to fatigue, opposed the 11-hour daily Georgia-Pacific Corporation stated take advantage of the longer daylight in driving limit. He said that the Truckers that productivity is an appropriate the summer months to drive additional Justice Center had spoken with drivers factor for FMCSA to consider because miles, thus increasing efficiency. The who were concerned about the new the only other alternative is to increase carrier also said that the extra hour of hours of service provision allowing a the numbers of trucks on the highways, driving enabled its drivers to get carrier to force a driver to drive up to with accompanying congestion and through metropolitan areas that had a 11 hours in a single tour of duty. crashes. curfew during rush hour periods. Some Several commenters presented J. B. Hunt said that it randomly of its drivers were now able to deliver detailed arguments in favor of a 10-hour selected 80 of its over-the-road drivers one additional load per week, which limit. The National Institute of and tracked them for a 30-day period. increased driver earnings while Occupational Safety and Health The carrier found that the drivers used improving the company’s efficiency. (NIOSH) said that its comments the 11th hour of driving only 10 percent submitted to FMCSA in December 2000 of the time. National Ready Mixed Opposition to 11-hour Limit were still valid. Those comments Concrete Association (NRMCA), the Opposition to the 11-hour daily supported a limit of 10 hours of driving Massachusetts Concrete and Aggregate driving limit came from 152 within a 24-hour work/rest cycle of 12 Producers Association, and a carrier
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50009
stated that driving time is generally not crash once drivers pass the 9-hour mark. 23 percent from 2003 to 2004. AMSA a critical issue in the ready mixed In fact, it asserted that risk doubles attributed this to the implementation of concrete industry. NRMCA cited its between the tenth and eleventh hours of the 2003 rule, which more naturally fit 2000 Survey of Ready Mixed Concrete consecutive driving. Public Citizen also a driver’s daily routine and natural Truck Driver Activities and Company stated that the 1-hour reduction in on- circadian cycle. AMSA also suggested Operations (Appendix II), which it said duty hours, from 15 hours to 14 hours, that the 2003 rule is easier for drivers to showed that ‘‘concrete delivery is irrelevant in terms of the number of understand and easier for dispatchers to professionals’’ on average spend less driving hours. Drivers will tend to work with than the former hours-of- than half of their time actually driving gravitate toward the maximum driving service regulations. Moreover, the under the U.S. DOT definition. hours possible to enhance their earnings ability to drive for an additional hour Therefore, the 1-hour increase in driving and meet trip deadlines, they argued, provides operators of household goods time contained in the 2003 rule was and will minimize non-driving on-duty moving vans the flexibility they need to ‘‘largely inconsequential’’ to the ready hours. arrive at a destination. Even the mixed concrete industry. In contrast, the California Highway relatively small 1-hour addition to Patrol stated that the increased risk from allowable driving time is a tremendous Health and Safety the 11th hour of driving would be offset advantage to the operational efficiency Commenters generally reported that by limits on the length of the driver’s required of all motor vehicle operations, the increased driving time either had no overall work day. considering the improvement in impact (57 commenters) or a negative Yellow Roadway Corporation stated comfort, noise penetration, and impact (62 commenters) on health or that about six percent of Roadway’s maneuverability of commercial motor safety. single man line-haul operations use the vehicles today that makes them less Advocacy groups saw a clear negative 11-hour clock. However, it was unable fatiguing to operate than those of even impact. For example, IIHS cited to break out OSHA data for those ten years ago. AMSA concluded that numerous scientific studies that it said drivers. The company did compare given the one-hour reduction in a show an increase in crash risk among OSHA Recordable Injury data of line- driver’s overall 14-hour duty day, the drivers operating large trucks for more haul drivers in total for the years 2003 additional hour of driving time was than 8 to 10 hours. No scientific and 2004, and said these data show an desirable, and an equitable and evidence, IIHS concluded, supports the improvement of 55 percent from 2003 to balanced complement to a driver’s argument that the increase in the daily 2004. Roadway suggested that although schedule. off-duty requirement meant that the 1- there may not be a direct correlation to OOIDA reported that a survey it had hour increase in driving time would not the 11-hour driving rule, the significant conducted indicated that the 11th hour compromise safety. decrease in injury rate for the entire of available driving time was not always Public Citizen argued that numerous line-haul operation would suggest that used frequently by drivers. For the studies demonstrate that increased there is no safety or health related need month of June 2004, the average driver fatigue and risk are associated with to change the 11-hour rule. used the 11th hour 8.3 times. According longer consecutive hours of driving. Alertness Solutions, a scientific to OOIDA, drivers reported that the They claimed that FMCSA’s proposed consulting firm, submitted a literature occasional use of this extra driving time addition of an hour of driving time review and technical argument had given them the ability to arrive at would add an hour of exceedingly supporting the proposition that there are a familiar facility where there is room to heightened crash risk, because the latter very limited data to address a drive-time park their truck, or to get them home hours of driving are the most dangerous. restriction and, from a physiological where they have the best opportunity Further, they asserted that the proposal perspective, less foundation to establish for rest and restorative sleep. This 11th undermined the Agency’s duty to how drive time relates to fatigue. The hour is also used to complete the enhance safety. It cited a 1996 study minimal data available, the commenter delivery of a load, taking the pressure that found a strong relationship between said, do not show significant differences off the driver to deliver the next day. single-vehicle truck crashes and the between 10- and 11-hour drive times. OOIDA reported that drivers said they length of consecutive hours spent However, Alertness Solutions agreed do not believe that the extra hour of driving, with the risk of a crash found that a drive-time limitation could be driving impaired their safe operation of to double after 9 hours of continuous useful in creating breaks within a duty a CMV, and that it often put them in a driving. Public Citizen reported another period, and breaks have been position to obtain better rest or sleep. study of truck driving that found that demonstrated to be an effective strategy They would like to retain this ‘‘Accident risk increases significantly to maintain performance and alertness. flexibility. after the fourth hour, by approximately American Moving and Storage FedEx Corporation reported that 65 percent until the seventh hour, and Association (AMSA) stated that the FedEx Freight has no drivers who were approximately 80 percent and 150 additional hour of driving time has had consistently logging 11 hours of driving. percent in the eighth and ninth hours,’’ no adverse effect upon fatigue-related FedEx Freight has no regular runs that respectively. They also cited FMCSA’s highway crash experience. The benefits require a driving time of 11 hours. Only statement in the 2000 NPRM that of the existing hours-of-service rules, about 2 percent of bid runs had a ‘‘performance begins to degrade after the however, extend beyond highway safety driving time of between 10 and 10.5 eighth hour on duty and that this to driver acceptance. AMSA reported hours. No crashes had occurred after the degradation increases geometrically that one carrier’s driver out-of-service 10th hour of driving. during the 10th and 11th hours.’’ They rate declined from 14 percent in 2003 to Several drivers suggested that the 11- pointed to a chart in the 2000 NPRM ten percent in 2004, a 29 percent hour driving period should be limited based on data from the University of improvement. That carrier’s number of by other requirements, or they suggested Michigan Transportation Research HOS out-of-service violations similarly other limits. Institute (UMTRI), Trucks Involved in experienced a 29 percent improvement. Fatal Accidents (TIFA) database, which Another carrier found the number of its FMCSA Response it said clearly showed a striking rise in drivers who received false log citations Because of the importance of driving the relative risk of a fatigue-related during roadside inspections decreased time to this rule and the conflicting
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50010 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
views of the commenters, FMCSA they had driven that long after the only major variable that changed from examined a wide range of research event. 2003 to 2004. Finally, the data do not literature and statistical data and reveal anything about the relative risk of Virginia Tech Transportation Institute performed a careful cost/benefit analysis the 10th or 11th hour of driving. Study of two alternative driving limits: 10 Fatality Analysis Reporting System hours and 11 hours. The agency has The Virginia Tech Transportation (FARS) decided to adopt a driving-time limit of Institute (VTTI) is currently conducting 11 hours within a 14-hour window a real-world, empirical study of crash FARS is generally recognized as the following 10 consecutive hours off duty. risk during the 10th and 11th hour of most reliable national database on fatal driving. motor vehicle crashes. FMCSA Crash Data The researchers have found no compared the first 9 months of FARS Although FMCSA’s analysis of the statistically significant difference in the crash data from the 2003 Annual Report available crash data is presented in number of ‘‘critical’’ incidents in the with the first 9 months from the 2004 detail in section H, some of the 10th and 11th hours of driving Early Assessment File (the difference is information bears repeating here. [Hanowski, R.J., et al. (2005), p. 9]. The explained in Section H). study has also determined that drivers The total number of fatal crashes Trucks Involved in Fatal Accidents involving large trucks decreased from (TIFA) Data are not measurably drowsier in the 11th than the 10th hour of driving. These 3,120 in 2003 to 2,954 in 2004, a 5.3 The TIFA file combines data on fatal results may be related to another percent reduction. The number of large crashes from FARS with additional data finding, that drivers appear to be getting truck crashes where the driver was collected by UMTRI, including the more sleep under the 2003 rules than coded as fatigued dropped as well. More number of hours driven since the last 8- they did when the minimum off-duty important than either of these figures, hour off-duty period at the time of the period was only 8 hours. Compared to however, are the data showing that crash. four sleep studies conducted under the fatigue-related fatal crashes are down Campbell [Campbell, K.L. (2005)] pre-2003 rules, Hanowski and his from 1.7 percent of all crashes in 2003 reviewed TIFA data for the years 1991 colleagues found that drivers operating to 1.5 percent in 2004, an 11.8 percent through 2002 to identify the operating under the 2003 rule are averaging over reduction. conditions where the most fatigue- 1 hour of additional sleep per day [Id., Although the data are still related crashes occur and to determine p. 8]. preliminary, all FARS measures of the association of fatigue risk factors fatigue-related crashes are trending with fatal crashes. He found that the Crash Risk and Hours Driving: Interim downward. The data, of course, do not majority of fatigue-related crashes occur Report II allow any firm conclusion about the in the early hours of the trip. This is a The Pennsylvania Transportation extent to which the 2003 rule may have function of exposure, since all drivers Institute at Pennsylvania State contributed to that result. drive in the first hour, while fewer drive University is currently modeling the Operational Data in later hours, i.e., the early hours of effect on crashes of hours of driving, trips are the most frequently driven. hours of rest, multi-day driving patterns FMCSA gathered operational data However, when examining the relative and other factors under the 2003 rule during compliance reviews and safety risk of a fatigue-related crash by hours [Jovanis, P.P., et al. (2005)]. This study audits to determine how the various of driving, the results are different. The collected records of duty status (RODS) provisions of the 2003 rule are being likelihood a truck driver was fatigued at for 7-day periods prior to crashes, as employed by the motor carrier industry. the time of a fatal crash generally well as for a non-crash control group. The Agency also reviewed other survey increases with the number of hours The study found an increased crash risk material and comments to the docket on driven. TIFA data show that the relative associated with hours of driving, this subject. Available data indicate that risk of a large truck being involved in particularly in the 9th, 10th and 11th driving into the 11th hour is far from a fatigue-related crash in the 11th hour hours, and multi-day driving. universal, with utilization rates ranging of driving or later is substantially higher from 10 to 28 percent. FMCSA’s own than in the 10th hour of driving. Comments on Crash Risk and Data survey of driver records found that only TIFA data are not necessarily Many companies and associations 20.7 percent of the recorded driving applicable to this rulemaking, however. submitted data on crash and injury periods exceeded 10 hours. There is no Only 9 fatigue-related fatal crashes rates. In general, their data show that reason to believe that a full 11 hours of where the driver was operating in the crash and injury rates were lower in the driving will ever become the standard 11th hour were recorded between 1991 year since the 2003 rule went into effect for the industry. Drivers need to deal and 2002. The statistical significance of in January 2004. with operational, administrative, and such a small number is questionable. ATA reported data showing that personal matters which typically reduce TIFA data were collected when the carriers had statistically significant driving time well below the maximum minimum off-duty period was only 8 lower average crash rates in 2004, allowable hours. hours and the driving limit 10 hours. causing ATA to believe that the 2003 As stated above, numerous carriers The current 10-hour off-duty rule is superior to the pre-2003 rule support the 11th hour of driving since requirement means drivers have so from the perspective of overall safety. it allows drivers to return home within much more opportunity for restorative The information provided by a day so they can sleep in their own sleep that the relative risk of the 11th commenters is not available from other beds. FMCSA also notes that the hour of driving revealed by TIFA may sources, but there is certainly some provision has increased industry no longer be relevant. Finally, UMTRI variability in the methods and accuracy productivity through increased conducts interviews with drivers or with which the data were collected. In flexibility without impacting safety carriers to supplement the FARS data, addition, the lower crash and injury based on available data, specifically but may do so as much as a year after rates cannot be definitively attributed to crash rates (see Crash Data discussion, a crash. It is unclear whether drivers can the effects of the 2003 rule, though some above). A number of commenters said accurately recall the number of hours commenters noted that the rule is the that, since trip lengths have not changed
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50011
as a result of the 2003 rule, the 11th status (RODS) to establish crash-risk 2-week testing period [O’Neill, T.R., et hour serves primarily to reduce the factors, like the time of day the crash al. (1999), p. 48]. stress of trying to complete a run by the occurred, the number of hours driven Breaks, Naps and Driver Fatigue end of the 10th hour. With an extra hour since the last off-duty period, the of driving time, drivers are able to relax number of hours since the last sleep The Agency considered a mandatory a bit and perhaps drive less period, and the length of the last sleep rest period (break) to mitigate any aggressively. period. As mentioned above, these possible fatigue related to the 11th hour As noted in the comments, use of the studies typically find that the risk of a of driving. Scientific research suggests 11th hour is also justified due to fatigue-related crash increases with the that rest breaks, including naps, while improvements in truck comfort, noise number of hours driven, and not reducing accumulated fatigue, penetration, and maneuverability, particularly after the 10th hour. On the refresh drivers and enhance their level which have decreased trucker fatigue other hand, sample sizes for the 11th of performance and alertness on a short- over the past decade. hour of driving, and beyond, are very term basis [Belenky, G. L., et al. (1987), p. 1–13 ; Wylie, D. (1998), p. 13]. The Research and Literature Review small, and data collection procedures for TIFA are less than optimal. Agency concluded that such a break The scientific literature on fatigue and The evaluation of some research, would be difficult for State and Federal performance factors includes notably particularly in the operational category, enforcement personnel to verify and different, and indeed inconsistent, is complicated by the variations in would significantly interfere with the results. The Agency found that the study design and data collection. operational flexibility motor carriers research on driving time is limited and and drivers need to manage their A 1996 operational study of 80 long- the conclusions mixed. A fatigued schedules. haul drivers engaged in revenue- driver is prone to perform less Still, FMCSA encourages carriers to generating runs in the U.S. (under the effectively on tasks requiring vigilance establish a break or napping policy as 10-hour driving limit) and Canada and decision-making than a person who part of an overall fatigue management (under that country’s 13-hour driving is alert. Fatigue is associated with a program. Several studies have shown limit) reported that time-on-task was not higher degree of crash risk. In practice, that a nap during a night shift can lessen a strong or consistent predictor of however, it is difficult to establish the the fatigue felt overnight [Matsumoto, observed fatigue. This study found no precise effect a given driving or on-duty K., & Harada, M. (1994), p. 899; Rogers, difference in drowsiness, as observed in period will have on fatigue, alertness, or A.S., et al. (1989), pp. 1202–1203]. A video records of comparable daytime driver performance. Modest differences study found that a 20-minute segments, between 10 and 13 hours of in study designs may produce ‘‘maintenance’’ nap helped to improve driving. Some measures, such as lane surprisingly different results. daytime self-rated sleepiness and tracking, individual cognitive Research on the effects of driving time performance levels on a variety of tasks, performance, and self-rating of fatigue falls into three categories: (1) including logical reasoning, were better at 10 hours of driving than Operational studies of on-road working mathematical calculations, and auditory at 13 (lane tracking was confounded by environments, (2) laboratory studies vigilance [Hayashi, M., et al. (1999), p. differences in driving routes and road under controlled conditions, sometimes 272]. Research suggests that a short nap conditions in the two countries). using driving simulators, and (3) of 10 to 20 minutes (but generally for Conversely, reaction time was better at analysis of crash or performance data. less than 45 minutes) can provide a 13 hours of driving than at 10. The The results are far from uniform. beneficial boost in driver alertness. Operational and laboratory studies authors noted that the lack of variance have generally found little or no in drowsiness between the driving Driver Health Impact statistically significant difference in periods may be attributable to the fact The issue of CMV driver health is driver drowsiness or performance that the study measured only daytime complex, and involves many external between the 10th and 11th hours of drowsiness. Other research suggests the factors (lifestyle, diet, and other driving [O’Neill, T.R., et al. (1999), p. body’s circadian rhythm limits the personal behavior/choices) that are 48; Wylie, C.D., et al. (1996), pp. 5.13– negative effects of longer hours during beyond the scope of the HOS rules. As 5.14; Hanowski, R.J., et al. (2005), p. 9]. daytime operations [Wylie, C.D., et al. discussed above (Section E—Driver These findings are contradicted by other (1996), pp. 5.13–5.14]. Health), FMCSA found little research on research involving drivers operating A 1999 study evaluated the effects on a possible relationship between HOS under the pre-2003 HOS rule. A fatigue and performance during a regulations and driver health. Longer frequently-cited 1978 study found daytime schedule of 14 hours on duty driving time increases driver exposure evidence of fatigue, measured both and 10 hours off duty, with drivers to diesel exhaust and chemicals, noise, subjectively and objectively, in less than performing simulated driving and and vibration, but dose/response curves the 10 hours of driving then allowed by loading/unloading tasks. The authors clarifying the effect of such exposure do the HOS rules [Mackie, R.R., & Miller, found mild cumulative effects on not exist. Therefore, in the Agency’s J.C. (1978), pp. 219–221]. This study, subjective measurements of sleepiness; best judgment, the difference between a however, required a driver to take only a slight but statistically significant driving limit of 10 and 11 hours is 8 consecutive hours off-duty, which deterioration in duty-day subjective inconsequential from the standpoint of probably limited the hours actually sleepiness, reaction time response, and driver health. available for sleep (as discussed later in measures of driving performance over section J.7). The 2003 rule and today’s the course of a week; but no cumulative Conclusion final rule provide drivers an additional deterioration of driver response in Available information on the effect of 2 hours off duty, creating a much crash-likely situations. The authors allowing 11 hours of driving time is improved opportunity for 7 to 8 hours reported that a schedule of 14 hours on inconclusive. TIFA classified only 9 of sleep per day. duty (with 12 hours of driving) and 10 fatal crashes that occurred in the 11th Research analyzing crash and hours off duty for 5 consecutive day hour of driving as fatigue-related performance data usually focuses on periods did not appear to produce between 1991 and 2002. Whatever the police reports and driver records of duty significant cumulative fatigue over the statistical risk of driving in the 11th
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50012 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
hour, FMCSA cannot make a reasonable as reported in section K.1 and the stand- limit is too high to justify the potential choice between a 10- and an 11-hour alone Regulatory Impact Analysis (RIA) benefits it would generate. Today’s final driving limit on the basis of only 9 fatal filed in the docket. Motor carrier rule therefore sets the maximum crashes over a 12-year period. operations were modeled in detail. The allowable driving time at 11 hours after The on-going studies by the Virginia Agency used a time-on-task multiplier 10 consecutive hours off duty. Tech Transportation Institute and the which assumed that the crash risk from Pennsylvania Transportation Institute the 10th to the 11th hour of driving J.6. Duty Tour seem to have reached completely increased based on the TIFA data. The In the 2005 NPRM, FMCSA requested incompatible conclusions. The latter analysis demonstrated that a 10-hour comments on the impacts of the 2003 finds that the 11th hour of driving poses driving limit would save no more than rule decrease in the duty period for a significant crash risk while the former 9.3 lives per year compared to an 11- drivers from 15 non-consecutive hours detects no statistical difference between hour limit. The annual net cost of a 10- to a non-extendable 14 consecutive the 10th and 11th hours of driving. The hour limit, however, compared to an 11- hours. different methods used by both research hour limit, would be $526 million ($586 teams appear to be valid. million in gross costs minus $60 million Impacts on Safety and Health Trucking industry comments to the in safety benefits). A 10-hour driving Almost 600 drivers and about 100 docket generally reported lower crash limit would cost more than $63 million carriers, as well as OOIDA, the National and injury rates in 2004 than in 2003. per life saved. Association of Small Trucking This reveals nothing about the 11-hour While the Agency did not explicitly Companies, CTC, and NPTC, urged that driving limit or the 34-hour restart estimate the marginal costs and benefits breaks, meals, and time spent loading provision, nor can the improvements be of limiting daily driving to 8 or 9 hours, and unloading be exempted from the 14- clearly linked to the 2003 rule, but it FMCSA believes that such changes hour duty tour. A substantial majority of certainly implies that the 2003 rule has would be even less cost beneficial than commenters, mostly drivers and owner/ not harmed highway safety. a 10-hour driving limit and would allow operators, opposed the change from 15 Preliminary FARS data show that a driving/rest cycle less consistent with cumulative hours to 14 consecutive fatigue-related fatal crashes as a driver circadian rhythms than an 11- hours of on-duty time. Drivers, in percentage of all CMV fatal crashes were hour limit. See section H for further particular, stated that the consecutive down in the first nine months of 2004 discussion of this issue. compared to the same period in 2003. FMCSA is required by statute both to duty time requirement caused them to This is consistent with the information improve motor carrier and driver safety skip meals or naps when they were provided in motor carrier comments to and to consider the costs and benefits of needed, and generally increased stress the NPRM. The data do not allow a its requirements [49 U.S.C. that leads to speeding and more calculation of crash risk for each 31136(c)(2)(A) and 31502(d)]. The aggressive driving. Several commenters additional hour of driving. It is also Department of Transportation currently believed the opportunity to work 14 possible, however unlikely, that the uses $3 million as the ‘‘value of a consecutive hours compromised safety FARS Early Assessment File for 2004 statistical life’’ (VSL) for rulemaking and favored a return to the previous does not accurately reflect the data in purposes. Because a 10-hour driving requirement of 15 cumulative duty the 2004 Annual Report, which was not limit would cost $63 million per life hours. Most of the commenters cited the available when FMCSA conducted its saved, compared to an 11-hour limit, the need for meal breaks and other breaks analysis. VSL for the lower limit would be 21 for rest and exercise to be ‘‘off the In summary, the available crash data times the DOT standard. A $63 million clock,’’ so drivers are not penalized for do not clearly indicate whether the 11th VSL is over six times higher than the taking time to eat a meal or nap when hour of driving, combined with 10 maximum VSL cited by the Office of they feel fatigued. Several trucking hours of off-duty time, poses a Management and Budget (OMB) in its associations cited fatigue as the primary significant risk. guidance to Federal agencies on impact of the consecutive 14-hour rule. An 11-hour driving limit is favored by conducting regulatory impact analyses, Because, they claim, drivers are most motor carriers and drivers, and is i.e., $10 million [OMB Circular A–4, p. discouraged from taking breaks to rest or economically beneficial to some 30]. The Agency cannot impose have a meal, they drive straight through carriers. On the other hand, it provides regulatory costs so far in excess of causing fatigue and stress. Two no real advantage over a 10-hour limit regulatory benefits. FMCSA expected associations noted that the consecutive for many short-haul carriers. Advocacy the new 10-hour off-duty period 14-hour rule has the unintended groups and some drivers prefer shorter required by the 2003 rule to reduce consequence of increasing the number driving times, though there is no driver fatigue and improve safety, of driver layovers, meaning that drivers consensus on what the shorter limit despite allowing 11 hours of driving more frequently sleep away from home, should be. Use of the 11th driving hour time instead of 10 hours. Many, though even though studies cited by FMCSA varies widely among motor carriers and not all, motor carriers have reported suggest that drivers who return home individual drivers, but all available data lower crash and injury rates under the every day experience fewer fatigue- show utilization rates far below 50 2003 rule, and preliminary FARS data related, serious crashes than those who percent. The research literature on show that fatigue-related fatal truck sleep while on the road. Many driver health is not sufficiently detailed crashes have declined as a percentage of commenters urged FMCSA to revise the to differentiate between any possible all fatal CMV accidents. This suggests HOS rules to allow a driver to extend effects of a 10- and an 11-hour driving that the pre-2003 studies and data the 14-hour window by up to two hours limit. Like the crash research and data, showing a sharply increased crash risk by taking off-duty rest breaks the comments and operational data do in the 11th hour of driving may no throughout the day as needed. The not point unambiguously toward a longer be relevant because drivers have Minnesota Trucking Association (MTA) single conclusion. used the 10 off-duty hours required by reported that 51 percent of its drivers FMCSA carried out a cost/benefit the 2003 to reduce fatigue. It is thus took naps to supplement sleep or analysis of a 10- and 11-hour driving FMCSA’s judgment that the $526 maintain alertness. However, of the 49 limit and other aspects of this final rule, million net cost of a 10-hour driving percent who did not nap, 42 percent
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50013
said that the 14-hour consecutive duty time. They too suggest that shipper and et al. (1996), pp. 713–717; Williamson, rule discouraged naps. motor carrier operations have become A.M., et al. (2000), pp. 43–44; Van The 131 commenters who approved more efficient in response to the 14- Dongen, H.P.A., et al. (2003), p. 125]. the change to 14 consecutive duty hours hour duty tour rule. In developing this final rule, the made a variety of arguments in its favor. Several other carriers, however, stated Agency considered whether the Several commenters believed the change that the consecutive 14-hour rule had scientific research, studies, data, and was a positive one because it prevents caused a loss of productivity and fleet comments justified adopting a 14-hour shippers, receivers, and companies from utilization, while increasing costs, driving window, or required some other abusing the off-duty hours and forcing thereby reducing profits. Some provision. As noted earlier, a number of drivers to use them as unpaid time. The commenters noted that the inflexibility commenters, drivers in particular, National Industrial Transportation of the consecutive 14-hour rule reported that the consecutive duty time League (NITL) commented that 2003 disproportionately affects small requirement causes them to skip meals rule ‘‘supports driver productivity businesses, many of which are forced to or naps when they are needed, and because the 14-hour window allows hire additional drivers to accommodate generally increases stress and leads to drivers ample time to perform such irregular delivery schedules. A few of speeding and more aggressive driving. tasks as loading, unloading, fueling, these commenters also cited public After a thorough evaluation of the data vehicle inspection, and completion of safety concerns associated with the lack and comments, FMCSA has decided to paperwork that are part of a typical of flexibility. For example, the National allow drivers to drive up to 11 hours day.’’ Advocates for Highway and Auto Propane Gas Association stated that within a 14-hour window after coming Safety stated that a return to a nearly 60 percent of its members are on duty. cumulative measure of duty time would experiencing difficulty in handling Crash Data restore the abusive practices that emergency or after-hours calls requiring prevailed with the previous HOS rules, an immediate response. Short-haul The crash data reviewed by the including the ability of shippers and drivers also stated that the 14-hour rule Agency in developing this rule is receivers to intimidate drivers to wait in had increased costs and reduced discussed earlier in Section H. Several line for loads, load and unload their productivity and driver earnings. The motor carriers and associations freight, and exceed maximum driving American Bakers Association surveyed submitted data with their comments hours by concealing these actions as its members and estimated the reflecting a decrease in crash and injury ‘‘off the clock’’ rest or meal breaks. cumulative cost increase to its rates in 2004 compared with 2003. The Several commenters also noted that the companies’ distribution systems to be data suggest a positive improvement in consecutive hours requirement would between 12 and 15 percent. Several safety performance. It is impossible to promote safety by keeping drivers on a commenters noted that the impacts to definitively link a specific provision of 24-hour circadian schedule. short-haul drivers are more significant the 2003 rule with the improved safety than those imposed on long-haul performance during 2004; however, the Economic Impacts drivers. Four commenters cited research and crash analysis show longer Several carriers noted that the 14-hour FMCSA’s admission that, while the continuous work hours can increase the rule had increased their productivity benefits of the new HOS rules accrue risk of a fatigue-related crash, as and made their fleets more efficient. mostly to long-haul drivers, the cost discussed later in this section. Further One carrier stated that the rule allowed burden falls largely on short-haul analysis suggests that the crash-impact it to pressure customers to speed up operators. of longer work hours is more loading and unloading. In concert with Two carriers stated that the specifically associated with large CMVs a positive economic environment, this consecutive 14-hour rule imposes an (greater than 26,000 pounds). Analysis allowed a rate increase. Another carrier economic penalty on long-haul drivers of 1994–2002 crash data found that noted that the consecutive 14-hour rule who wish to take a rest break and these CMVs account for 87.3 percent of made it easier for a company to audit decreases their earning potential by not all fatigue-related fatal crashes and manage driver hours, and that the allowing the 14 hours to be extended. [Campbell, K.L. (2005)]. rules were easier for drivers to understand and log their time FMCSA Response Operational Data accurately. The general consensus Under the pre-2003 HOS rule, a driver Based on the recent FMCSA survey among drivers was that their workday, could extend the 15-hour on-duty [See Section I, FMCSA Field Survey on average, is shorter under the new period by taking breaks during the day. Report (2005)] of 7,262 tour-of-duty rules. They no longer work 20-hour days Thus, the pre-2003 rule permitted an periods, the Agency found that 15.3 due to the 14-hour consecutive operator to drive after having been at percent exceeded 12 hours and 9.2 requirement. One driver stated that this work over 15 hours. The Agency ended percent exceeded 13 hours. Looking at is because shippers and receivers are this in the 2003 rule, by prohibiting over-the-road (OTR) driver tours of more aware of the time restrictions that drivers from extending their on-duty duty, 16.4 percent exceeded 12 hours drivers face and do not delay drivers as period with ‘‘off-duty’’ breaks. The 2003 and 9.4 percent exceeded 13 hours. long as they did in the past. rule prohibited driving after the 14th These data show that the vast majority The NITL commented that shippers consecutive hour of beginning work or of drivers are not using the full 14- have made significant changes. For coming on-duty. This created a non- consecutive hour duty tour. The data example, ‘‘operations at loading docks extendable period within which the suggest that drivers represented in the have been reconfigured to decrease driver could drive up to 11 hours and survey have time available within the dwell time and to expedite loading and effectively ended the allowance of current 14-hour duty tour to take breaks. unloading in order to minimize driver breaks to extend daily duty tours. The The survey findings are based upon the on-duty time not devoted to driving, Agency’s research found time spent review of 269 motor carriers, of which and to maximize driving time with the working (and not simply time spent 85.9 percent (231) were for-hire motor new 14 consecutive hour rule.’’ The driving) contributes to a driver’s fatigue carriers and 14.1 percent (38) were changes were necessary given the and thereby impacts performance in private motor carriers. Of the for-hire ‘‘new’’ value associated with a driver’s long-haul operations [Williamson, A.M., motor carriers surveyed, the majority
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50014 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
(96.3 percent) were considered over-the- of the HOS regulatory scheme. There is J.7. Off-Duty Time road. In contrast, of the private motor consensus among researchers that a In the NPRM, the Agency requested carriers surveyed, a slight majority (57.6 schedule that promotes a 24-hour clock comments on the extent to which the percent) were considered local. is beneficial in creating regularity of increase in the minimum off-duty time Additionally, the majority of motor work/sleep schedules. Researchers also from 8 hours to 10 hours affected driver carriers surveyed were classified as a agree that individuals need 7–8 health, the safe operation of CMVs, and truckload (92.6 percent) [FMCSA Field consecutive hours of sleep per day. The economic factors in the CMV industry. Survey Report (2005), p.4]. 14-hour duty tour along with a 10-hour Of the 452 commenters who discussed Research & Literature Review off-duty period meets both of these the off-duty requirement, 270 (60 universally accepted findings. This final As described earlier in Section D, the percent) approved of increasing off-duty rule promotes movement toward a 24- time to 10 hours. For drivers who Agency initiated an extensive review of hour clock and provides all drivers with scientific literature and research in commented, the level of support was the the opportunity to obtain 7–8 same; 60 percent of the 366 expressed developing this rule, which included consecutive hours of sleep per day. the use of subject matter experts to approval of the increase. assist in the effort. Driver Health Impact Impacts on Health and Safety The Agency found general consensus within the research that cumulative As discussed earlier, an FMCSA A substantial majority (73 percent) of wakeful hours have a direct correlation driver health team, despite extensive the comments on the health and safety with a person’s alertness and ability to efforts, found little research to evaluate impacts of the 10-hour break included maintain performance. Specifically, the specific impact or association positive consequences, particularly longer wakeful hours result in alertness between the specific hours driven or comments from drivers, but also from and performance degradation. The worked and CMV driver health. One can carriers. research conclusions are conflicting, conclude, based upon the research, that ATA, National Ready Mixed Concrete depending upon the type of research sleep, along with hours worked, plays a Association (NRMCA), National conducted, on the specific number of role in a person’s overall health. Industrial Transportation League hours after which the degradation in If long work hours adversely affect (NITL), the Specialized Carriers and alertness and performance adversely driver health ‘‘which current research Rigging Association, the California affect a driver’s ability to safely operate does not clearly indicate ‘‘the 14-hour Highway Patrol (CHP), the International a CMV. limit will protect drivers better than the Brotherhood of Teamsters, and three A 1999 simulator study found only a pre-2003 rule. Drivers ordinarily are not carriers said the increase in mandatory negligible difference in fatigue between allowed to extend their duty tour off-duty time gives drivers enough time a typical day (morning to evening) shift beyond 14 hours. The 14-hour provision to get 8 hours of sleep as well as to of 10- or 12-hour duty day and a 14- is a substantial improvement over the attend to other personal needs. The hour day. This same study found that ‘‘a pre-2003 rule, with its 15-hour limit AFL-CIO, CHP and a carrier said that daytime work schedule of 14-hours on- extendable by the amount of off-duty the 10-hour off-duty requirement, when duty with a 10-hour off-duty period for time taken during the duty tour, because combined with the consecutive 14-hour a 5-day week did not appear to produce this provision generally reduces daily on-duty requirement, benefits drivers by cumulative fatigue’’ [O’Neill, T.R., et al. work hours and any associated health putting them on a 24-hour daily (1999), pp. 37–41]. effects. However, drivers operating schedule. Grammer Industries, Inc. said A more recent study (2000) of New under the new short-haul rule that the 10-hour off-duty requirement Zealand CMV drivers found ‘‘0.05% (described in section J.10) are allowed to provides its drivers with the ability to BAC (Blood Alcohol Content) drive up to the end of the 16th hour exercise, take care of personal hygiene equivalence occurred at between 17 and twice a week. There is no evidence that matters, eat meals, and spend time for 19 hours of sleep deprivation for most this short-haul schedule adversely relaxation. The carrier said that any tests. This means that after around 17 affects drivers’ ability to drive safely, break over 10 hours makes drivers out hours of wakefulness, a person’s and there is no available information on on the road ‘‘nervous’’ and causes them performance capacity is sufficiently the health implications of an occasional stress. impaired to a level of concern for 16-hour workday. Commenters also pointed out safety’’ [Williamson, A.M., et al. (2000), detrimental impacts. Werner Enterprises pp. 43–44]. Another study of 48 healthy Conclusion and two drivers said that the 10-hour adults under standardized laboratory period posed problems for over-the-road conditions found the critical wake After thorough consideration of the drivers. Werner explained that because period beyond which performance research studies, crash and operational the break must be a full 10 hours, which began to lapse was statistically survey data, and comments to the is often more than a driver needs for estimated to be about 16 hours [Van NPRM, the Agency has decided to sleep and daily personal maintenance, Dongen, H.P.A., et al. (2003), p. 125]. prohibit driving after 14 consecutive many drivers are frustrated when they These findings are generally consistent hours after coming on duty. The Agency wake because they must wait an with comments by Alertness Solutions, believes the information is clear on the additional 3 to 4 hours before they can which emphasized the importance of need to limit the cumulative hours that go back on duty. The 10 hours off has continuous wakefulness as a predictor a driver may work and continue to little impact on long-haul drivers’ of fatigue [Alertness Solutions, (2005) drive. personal or family activities because NPRM Docket comments]. It is the best judgment of the Agency they are generally away from home The role of continuous wakefulness is that a 14-hour non-extendable duty tour then. important in predicting fatigue, and period, in conjunction with 11 hours J.B. Hunt also argued that the change thereby protecting driver safety and driving and 10 hours off duty, will had a negative impact on long-haul consequently public safety. Therefore, a reduce driver fatigue, promote driver drivers. It reported surveying 697 duty period provision to control driver health, and improve CMV transportation drivers. The survey found that 32 work hours is an important component safety. percent indicated that going from 8 to
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50015
10 hours off was the ‘‘least liked’’ part a negative economic impact on them. work/rest cycle. The Minnesota of the new 2003 rule. The reason given One carrier stated that its trucks idle Trucking Association (MTA) by many was that they must now begin during each rest period, and longer commented that a survey of their looking for parking locations by late periods reduce motor life and increase members found the 10 hours off has afternoon or be forced to use ramp areas fuel costs. In addition, the trucks are reduced fatigue, by providing more or other less safe break locations. less productive. Brandt Truck Lines sleep and promoted better health. A Because there is no flexibility in reported an increase in drivers and study directed by FMCSA with VTTI requiring 10 consecutive hours of break vehicles of 15 to 25 percent, depending (See Section H), which began time, with the limited exception for on schedules and how ‘‘tight’’ the monitoring 82 CMV drivers in May split-sleeper periods that do not allow operation was under the old regulations. 2004, has found that drivers on average drivers to take care of their basic needs, Similarly, Colorado Ready Mixed are getting more than an hour more drivers must often try to sleep in less- Concrete Association stated that for sleep daily under the 2003 rule. This than-optimal sleeping conditions. overnight projects and during peak finding is based upon comparisons of Eleven drivers said that 10 hours off- seasons, companies have had to hire the VTTI data collected through May 1, duty is overly restrictive for those additional drivers to comply with this 2005, to findings reported in research drivers who do not need 8 to 10 hours provision of the regulation. However, studies conducted under the pre-2003 of sleep per night. Over-the-road and ABF Freight and another carrier rule. team drivers, in particular, found 10 reported minimal impact. In addition to the operational data hours too long. Boston Sand and Gravel Relatively few drivers commented on and surveys received from commenters, stated that the rule does not necessarily the overall economic impact of the 10- drivers submitted comments reporting lead to increased sleep time, based on hour off-duty period. One driver stated that under the 2003 rule they have more personal choices of the drivers in their that the incremental increase in the time at home and obtain more rest, use of off-duty time. Massachusetts minimum required off-duty period resulting in reduced fatigue. The Concrete and Aggregate Producers resulted in drivers making less money, Agency believes that the increased sleep Association, Inc. also argued that 8 as they are usually paid by the mile or reported through industry surveys, hours of rest was sufficient. ABF stated trip, and more off-duty time means operational data, and commenters can that most of its drivers would have fewer miles or trips. Another driver said be attributed to the additional 2-hours preferred retention of the 8-hour rest the rule increased frustration because it off-duty time provided by the 2003 rule. period when away from home but liked diminishes a driver’s income. Research & Literature Review the 10-hour period at home. Other commenters recommended a FMCSA Response As mentioned, FMCSA has found more substantial increase in the After thoroughly evaluating all of the general consensus among scientific required break. NIOSH reiterated its information gathered, FMCSA has researchers regarding the human support for a 24-hour work-rest cycle of decided to require drivers to take a physiological need for 7–8 hours of 12 hours on-duty and 12 hours of free minimum of 10 consecutive hours off sleep to maintain performance and time. They also observed that the 12-on/ duty. alertness. 12-off daily cycle is consistent with Studies performed in laboratory Crash Data common scheduling practices in other settings, as well as studies assessing industries that use shifts longer than 8 The Agency has reviewed studies operational situations, have explored hours. IIHS said that the increase in related to crash risk based upon the the relationship between sleep obtained required daily off-duty time is an hours off duty and opportunity for and subsequent performance [Dinges, important improvement, but it asserted sleep. Studies of truck drivers, [Lin, D.F., & Kribbs, N.B. (1991), pp. 98–121; that a 10-hour off-duty requirement still T.D., et al. (1993), p. 9; McCartt, A.T., Bonnet, M.H., & Arand, D.L. (1995), pp. is inadequate for drivers to obtain et al. (1997), p. 63] point specifically to 908–11; Belenky, G., et al. (1994), pp. restorative sleep and attend to other increased crash risk and recollections of 127–135; Dinges, D.F., et al. (1997), pp. daily requirements. AHAS said that solo increased drowsiness or sleepiness after 274–276; Belenky, G.L., et al. (1987), pp. drivers should have at least 10 less than 9 hours off duty. A study by 1–15 to 1–17]. These studies generally consecutive hours off-duty that are the National Transportation Safety found poorer performance levels when taken in a single block of time, Board [NTSB (1996), p. 37] found the sleep is restricted. More recent studies regardless of whether that off-duty rest most critical factors in predicting fatigue [Balkin, T., et al. (2000), p. ES–8; time is taken in a sleeper berth. were the duration of the most recent Belenky, G., et al. (2003), pp. 9–11; and McCormick proposed that any rest sleep period prior to the crash, length of Van Dongen, H.P.A., et al. (2003), p. period equal to or greater than 10 time since last sleep period, sleep over 124] found that even a relatively small consecutive hours, within a 24 hour the preceding 24 hours, and split-sleep reduction in average nighttime sleep period, be considered the driver’s sleep patterns. Drivers in fatigue-related duration (i.e., approximately 6 hours of time. Under this approach, rest would crashes averaged 5.5 hours of sleep in sleep) resulted in measurably be defined as sleep time, unloading the most recent sleep period prior to the decremented performance. Another delay time, or delays due to equipment crash (6.9 hours in the last 24 hours), report [Rosekind, M.R., et al. (1997), pp. breakdown. while drivers in non-fatigue-related 7.2–7.5] concluded that ‘‘scientific data Kimberly Clark agreed that valid crashes averaged 8.0 hours of sleep (9.3 are clear regarding the human science supported a 24-hour work-rest hours in the last 24 hours). physiological requirement for 8 hours of cycle. However, it recommended sleep to maintain performance and Operational Data reducing the mandatory break from 10 alertness.’’ ‘‘Therefore, an average to 9 hours and allowing for a short nap As discussed earlier in Section I, individual who obtains 6 hours of sleep during the duty day. industry surveys found that the 2003 could demonstrate significantly rule, with a minimum of 10 consecutive degraded waking performance and Economic Impacts hours off duty, has generally improved alertness * * *’’ In addition, the Those carriers that commented driver rest (less fatigued) and authors found the effects of sleep loss/ generally said that the 10-hour break has encouraged movement toward a 24-hour deprivation to accrue, and stated,
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50016 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
‘‘* * * data have demonstrated that not Driver Health Impact results in no new cost implications, only does the sleep loss accumulate but compared to the 2003 rule. that the negative effects on waking As discussed earlier, FMCSA found, In addition, the Agency believes that performance and alertness also are despite its extensive literature review, a 10-hour off-duty period coupled with cumulative and increase over time.’’ little conclusive research to evaluate the the 14-hour duty tour will promote specific impact or association between A past study of 80 over-the-road movement within the industry toward a the specific hours driven or worked and 24-hour clock. A 14-hour non- drivers in the U.S. and Canada, [Wylie, CMV driver health. Anecdotally, one extendable duty tour, in combination C.D., et al. (1996), p. ES–10] found that can conclude, based upon the research, with the longer off-duty period, drivers obtained nearly 2 hours less that sleep plays a role in a person’s enhances the opportunity for drivers to sleep per principal sleep period than overall health. Sleep deprivation has achieve restorative daily sleep their stated ‘‘ideal’’ (5.2 hours versus 7.2 been associated with poorer health and compared to the pre-2003 rule by hours). increased health related problems, most eliminating the opportunity for the duty In a survey [Abrams, C., et al. (1997), notably cardiovascular disease, diabetes, period to be extended. Ensuring that pp. 11–12] of 511 medium- and long- and general health risks associated with drivers have the opportunity for distance truck drivers in the United obesity. The research supports 6–8 sufficient sleep, coupled with moving States, the authors found no statistically hours of sleep on average, as having a toward a 24-hour schedule, will reduce significant differences in the stated rest positive impact upon a person’s health. driver fatigue, promote driver health needs among various categories of Therefore, from a driver health and improve CMV transportation safety. drivers (owner-operator, company standpoint, it is important that drivers J.8. The 34-Hour Restart and 60/70-Hour driver, regular route, irregular route, be afforded the opportunity to obtain Rules solo, or team). On an average day, a this amount of sleep. Based on the driver reported needing an average of 7 research that led to the 2003 rule, Introduction hours of sleep. FMCSA knew that short sleep (sleep The following summarizes less than 6 hours) among drivers was a In 1998, an expert panel [Belenky, G., discussions contained in this and earlier concern from both a safety and health et al. (1998), p. 7] convened to advise sections of this preamble that are perspective. As a result, FMCSA the Agency on potential hours-of-service pertinent to the 34-hour restart and the increased off-duty time from 8 to 10 regulations for CMV drivers. The panel 60/70 hour rules. consecutive hours, thereby increasing reported that ‘‘off-duty hours must This rulemaking addresses the the driver’s opportunity for sleep by up include enough continuous time off phenomenon of driver fatigue, i.e., the to an additional two hours per day. partial and occasional total loss of duty so that drivers are able to meet the Data, highlighted earlier, from multiple demands of life beyond their jobs and alertness resulting from insufficient sources confirm that CMV drivers are quantity or quality of sleep. Sleep plays are also able to obtain sufficient obtaining more sleep as a result of the uninterrupted rest.’’ In addition, the a critical role in restoring mental and 2003 HOS rule, averaging more than an physical function, as well as in panel recognized that ‘‘although there is extra hour daily. no guarantee that off-duty time will be maintaining general health. For most spent in sleep, sufficient sleep cannot Conclusion healthy adults an average of 7 to 8 hours occur unless there is enough time of sleep per 24-hour period has been allowed for it.’’ The panel concluded After thorough consideration of the shown to be sufficient to avoid that, ‘‘the time allotted for sleep [off- research studies, crash analysis reports, detrimental effects on performance. duty time] must be a minimum of 9 operational survey data, and comments It has been well established that [hours].’’ The observations and to the NPRM, it is the Agency’s best mental alertness and physical energy judgment that a requirement for a recommendations made regarding rise and fall at specific times during the minimum of 10 consecutive hours off continuous daily time off duty for CMV circadian cycle, reaching lowest levels duty is essential to give drivers the time drivers supports the Agency’s decision between midnight and 6 a.m., with a needed to obtain restorative sleep every in this final rule to adopt the 10-hour lesser but still pronounced dip in energy day. The Agency believes scientific and alertness between noon and 6 p.m. provision. research is clear on the need for 7 to 8 Changes of two or more hours in sleep/ FMCSA is convinced, based upon the hours of sleep to maintain alertness and wake times cause one to become out of research, that drivers need the performance. Lack of sufficient sleep phase with the circadian cycle. opportunity for 7 to 8 hours of results in greater risk of involvement in Circadian de-synchronization results consecutive sleep to maintain alertness a fatigue-related crash, and is associated from irregular or rotating shifts that are and performance, and reduce fatigue on with health-related complications. To not anchored to a 24-hour day (i.e., that a daily basis. The Agency recognizes ensure that drivers are afforded the start and end at different times each there are individual differences in the opportunity to obtain 7 to 8 hours of day), resulting in poor quality sleep and amount of sleep needed. However, the sleep, the rule must afford a period of leading to accumulated fatigue. Sleep research overwhelmingly supports that time greater than the minimum required loss over several days leads to a on average humans require between 7 for sleep. Drivers report being more degradation in alertness and driving and 8 consecutive hours of sleep per rested, now that they have been afforded performance. Sleep loss over extended day to restore performance. The Agency the opportunity to obtain 7 to 8 hours periods or during night work can result must ensure that this rule sufficiently of sleep due to the increased off-duty in cumulative fatigue. Recovery from provides for the average sleep needs of time. Adopting this provision cumulative fatigue requires an extended all CMV drivers. Establishing a rule acknowledges the importance of off-duty period. CMV drivers who requiring less than the average would ensuring that the duration of the most repeatedly obtain less than their daily result in sleep restriction over time that recent sleep period before each duty requirement of sleep incur a sleep debt would lead to increased fatigue and tour is adequate to eliminate fatigue on of some magnitude. In serious cases, the reduced performance, thus elevating a daily basis. The Agency’s decision to resulting cumulative fatigue can crash risk and compromising safety. adopt a 10-hour off-duty provision increase the driver’s crash risk.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50017
Recovery time is needed to erase the allow for sufficient rest and to address the old way, a driver could get home for effects of sleep loss on performance, and any potential HOS compliance issues. a day or two. This way, the dispatcher in aggravated cases, to restore the mind J.B. Hunt Transport said that it had can keep a driver out for a long time.’’ and body to normal functioning. conducted a survey of 697 drivers and Public Citizen called the 34-hour FMCSA has determined that the that 67 percent of them thought the 34- restart provision one of the most research on CMV drivers supports the hour restart provision was the ‘‘most harmful aspects of the proposed rule assessment that a recovery period of 34 liked’’ aspect of the new HOS rule. and strongly urged that it be eliminated. hours is sufficient for recovery from Schneider National, Inc. said that it had The group said that drivers should not cumulative fatigue. The importance of interviewed 46 experienced drivers and be able to restart their driving hours by two night (midnight to 6 a.m.) rest they all voiced support for the 34-hour taking only 34 hours off duty. Public periods was highlighted in the 1998 restart provision, because the restart, in Citizen thought that drivers should be HOS expert panel report. The majority combination with the 10-hour off-duty afforded a weekly off-duty period that of drivers (about 80 percent) are daytime requirement, prevents the build-up of includes at least two to three nights of drivers, who would likely start their cumulative fatigue. rest after a week of driving. recovery period between 6 p.m. and Crete Carrier Corporation reported AHAS also opposed allowing drivers midnight, and therefore these drivers that since January 2004, its drivers more to restart their driving hours by taking would have the opportunity for two full frequently request and receive longer only 34 hours off duty. It stated that nights of sleep prior to the start of the periods of time off between consecutive drivers should be guaranteed the next work week. Also, in examining the days of driving in order to utilize the 34- opportunity of at least three separate operational data, FMCSA has hour restart. The carrier said that it now periods of sleep that are each equivalent determined that many drivers are sees drivers proactively scheduling to about 8 hours of sleep per night. It extending their recovery periods beyond extended off-duty recovery periods into recommended that drivers have 34 hours, making it even more likely their workweeks and returning after approximately 56 to 60 hours off duty that they are getting 2 full nights of these extended periods with ‘‘positive before starting a new tour of duty, so sleep. More than 50 percent of drivers attitudes and appearing rejuvenated.’’ A that they can return to a regular pattern are getting 3 nights of sleep. FMCSA has regional carrier said that the restart of waking and sleeping. AHAS concluded from its review of the few provision benefits drivers by giving referenced previous instances in which scientific studies of recovery periods them a full day away from work to rest FMCSA acknowledged the importance that 34 hours off duty provides enough and relax. One carrier said its drivers of sleep periods taken at night. AHAS time for drivers to recover from haul over-dimensional loads that they asserted that no research has shown that cumulative fatigue that might occur cannot move on Saturday afternoons drivers can eliminate their fatigue, during multi-day operations. and Sundays in a number of states. With recover alertness and performance, and In adopting the 34-hour recovery the 34-hour restart, however, these appropriately expunge an accumulated period, FMCSA has taken into account drivers get their 70 hours back after sleep debt with a 34-hour rest period. the weekly accumulation of driving and waiting out the weekend. Another Furthermore, the group said that on-duty time allowed during each 7- carrier urged FMCSA to keep the restart FMCSA had adopted the 34-hour restart and 8-day period, the adequacy of the provision because it directly affects its provision ‘‘in the face of a wealth of 34-hour recovery, the costs versus ability to retain and recruit drivers. contrary evidence * * *.’’ benefits of retaining restart, the Eighteen trade associations (trucking The Insurance Institute for Highway overwhelming support of the 34-hour and other industries) also commented in Safety (IIHS) maintained that there is no recovery by the transportation industry, favor of the provision. They cited scientific basis for the 34-hour restart including motor carriers and drivers, the benefits for both drivers and carriers. rule. The group questioned the long-term effect on driver health, and The associations said that the restart applicability of the 1999 study by the overall safety aspects of adopting provision provides carriers with O’Neill et al., which FMCSA cited as this provision. additional flexibility and allows support for the 34-hour restart increased productivity. In addition, they provision. IIHS noted that the study Support for Restart said that drivers are able to get home considered the effects of a 58-hour off- Of the 564 drivers who commented on earlier and more often than they could duty period, not a 34-hour period, and the 34-hour restart provision, 465 or 82 under the pre-2003 rule. said that the study’s authors cautioned percent support it. Drivers cited a about generalizing the results to number of reasons why they like the 34- Opposition to Restart operations with different characteristics. hour restart. It is long enough for them A total of 109 commenters IIHS also noted that other studies have to get adequate rest before returning to disapproved of the 34-hour restart not reached the same conclusions. work, but it is short enough that it does period. Those drivers that opposed the According to IIHS, a 1997 observational not significantly lessen their earnings. 34-hour recovery period cited a number study of over-the-road drivers found The provision gives drivers more time at of reasons. For example, one thought it that a 36-hour recovery period was home, gives them back the full is too short to provide sufficient inadequate, and a 2005 analysis of data allowable 70 hours for the coming 8-day restorative sleep for short-haul drivers, from a national LTL firm suggested that week, and allows drivers to change and another thought it too long. Other there may be increases in crash risk shifts easily. drivers suggested that some carriers are associated with off-duty periods as long Nearly all of the 113 carriers forcing drivers to sit at truck stops for as 48 hours. (including owner-operators) that 34 hours rather than letting them spend The Transportation Trades discussed the 34-hour restart favor it. their off-duty time at home. For Department of the AFL–CIO also FedEx Corporation (FedEx) noted that example, one driver explained that ‘‘A asserted that the 34-hour restart the ‘‘vast majority’’ of FedEx Ground’s dispatcher can run a driver out of time contributes to the physical exhaustion contractors and their drivers use the (60/70 hours). Then set him/her at a of drivers, because they receive only 34 restart provision, and anecdotal truck stop for 34 hours, 100 miles from hours off duty before beginning another evidence from those contractors home, then put him/her back on the ‘‘marathon’’ 7- or 8-day work supports the 34-hour restart as a way to road for another 60/70 hours. At least assignment. The union said that the
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50018 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
restart provision dramatically cuts into deficit, so they are more than prepared daily limitations on duty and the the time drivers who operate on a to operate safely after the 34-hour provided off-duty rest are intended to weekly schedule would otherwise have restart. ATA said that the restart minimize or eliminate acute fatigue, to recover, catch up on sleep, and spend provision has improved the sleep/rest they represent a rational basis for with their families. The International recovery period for drivers and calculating the cumulative work hours Brotherhood of Teamsters claims that enhanced their quality of life. It believes total. A core premise in the weekly any benefits of the 10-hour rest period that the provision encourages carriers to work-hour limitations is that they both and the 14-hour tour of duty provision more regularly schedule extended off- restrict the total work hours and provide are offset by the increase in driving time duty periods for drivers and that drivers a recovery period within a certain and the use of the 34-hour restart are seeking to take that time off as a timeframe. The 34-hour restart provision. The union asserted that the result of the restart provision. ATA also specifically addresses the recovery 34-hour restart has become mandatory noted that the provision has helped to opportunity. Although there is no for most drivers who are not protected avoid the shifting of daytime to scientific basis for the weekly work- by collective bargaining agreements. nighttime schedules, which research hour limitations, there are scientific The union said that their collective indicates can affect circadian rhythm data to address the recovery issue. bargaining agreements do not provide and decrease alertness. CR England, Inc. Alertness Solutions also said there are for the use of the 34-hour restart. said that the 34-hour restart offers some studies that have consistently Despite this fact, the union does not irregular-route, long-haul drivers great demonstrated that two nights of sleep think that the companies for which its relief from fatigue and sleepiness. The result in performance and alertness members work have been competitively carrier noted that the restart is recovery following significant sleep disadvantaged. particularly beneficial to its drivers who deprivation. Elisa Braver, University of Maryland want the rest but prefer to not spend AHAS, however, said that FMCSA did School of Medicine, asserted that there their off-duty days away from home. not (and could not) demonstrate that is an absence of scientific evidence that The carrier called the restart provision drivers utilizing the 34-hour restart the cumulative sleep deficits and fatigue a ‘‘win-win situation for the driver’’ provision are no more fatigued and are incurred by working 60 hours can be because it allows higher earnings, just as safe as drivers were when remedied by having 34 hours off duty. enhanced safety, and improved family operating under the prior regulatory She said that the scientific evidence morale. regime. AHAS claimed that FMCSA cited by the Agency in support of the ‘‘simply relied upon its rulemaking 34-hour restart is marred by small Alertness Solutions provided a authority to pronounce new, more numbers, inapplicability to the driving lengthy commentary on the rule. It demanding HOS requirements and to population, and failure to study the stated that the 34-hour period provides assert, without specific support effects of having 34 hours off after sufficient time for two 8-hour sleep anywhere in the record, that this working according to the schedule periods and one 18-hour period of expansion in driving hours and reduced permitted by the rule. As an example, intervening wakefulness that should time off would nevertheless somehow Braver said that the study cited by allow recovery from a cumulative sleep generate a net gain in safety.’’ O’Neill [O’Neill, T.R., et al. (1999)] debt. The daily 10-hour off-duty period IIHS agreed that FMCSA ignored featured small numbers of volunteers in is intended to minimize or eliminate studies showing an association between driving simulators following a schedule any acute sleep loss, so any cumulative long driving hours and reports of falling unlike that of typical drivers who had sleep debt that might exist under the asleep at the wheel of a large truck. IIHS 58 hours off between five-day work HOS rule should be minimal or none. added that among drivers it had shifts. Braver cited a 2005 study which Any sleep debt that might occur under interviewed, those reporting work hours purportedly showed that 34 hours is an the rule should be sufficiently ‘‘zeroed’’ longer than 60–70 per week, or other insufficient period for recovery [Park, S- in the context of the 34-hour restart hours-of-service violations, were 1.8 W., et al. (2005)]. Braver cited another period. Alertness Solutions also argued times as likely to report falling asleep study [Belenky, G., et al., (2003)] that that there are no scientific data that while driving during the month prior to she said indicated recovery from sleep specifically address the number of work their interviews as drivers who reported deprivation can take longer than 48 hours per week (or per month or per they worked fewer hours. hours. year) that would be required to cause IIHS also critiqued Alertness fatigue serious enough to reduce Solution’s comments. IIHS believes that Adequacy of 34-Hour Recovery To performance, alertness, or safety. the studies it referenced were not based Eliminate Fatigue However, limiting the number of work on commercial vehicle drivers, but were By a large margin, the commenters hours in a specified timeframe is a primarily experiments that examine the who directly discussed the effect of the common approach used in scheduling effects on simulated performance of restart on fatigue said that it is long practices and in regulatory policies to continuous hours of wakefulness, not enough to provide sufficient restorative address fatigue. Often these weekly time on task. IIHS said that the sleep, regardless of the number of hours limitations are calculated based on the Alertness Solution commentary did not worked prior to the restart. Of the 132 daily limitations. For example, consider the range of factors that may commenters who addressed the topic, Alertness Solutions pointed out that a affect sleep debts among truck drivers 113 said that 34 hours is long enough 14-hour duty limit, worked for 5 days (e.g., split rest time in a sleeper berth) to provide sufficient restorative sleep. yields a total of 70 hours of work. If and their ability to get adequate The Owner Operator Independent considered in terms of historical recovery sleep in the real world. For Drivers Association (OOIDA) noted that practice related to a five-day workweek example, IIHS noted that for many none of its members had reported and two days off for a ‘‘weekend,’’ 70 drivers the 34-hour recovery period needing more than two consecutive hours of cumulative work hours in a 7- occurs on the road rather than at home. nights to obtain restorative sleep. The day period is consistent. As reflected in Public Citizen thought that none of association said that drivers who use the FMCSA rule, these total work-hour the research cited by FMCSA justifies a their 10 hours off duty to get sufficient limitations are even more conservative restart that provides for only two sleep restorative sleep never accrue a sleep than this calculation. Also, because the periods, regardless of the time of day.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50019
The group asserted that the minimum restart period suggested that it should be restart provision actually allows drivers weekly recovery period that is 24 hours; 48 hours was the next most to log up to 88 hours of driving during supported by studies cited in the NPRM popular choice. Sixteen commenters an 8-day period (an increase of up to 30 and earlier rulemaking notices is two voiced approval for 34 or 36 hours. percent), and up to 77 hours of driving consecutive nights of sleep. According during a 7-day period (an increase of up Use of Restart to Public Citizen, the 1999 simulator to 25 percent). IIHS claims that many study concluded that two full nights FMCSA requested information on drivers have dramatically increased and one intervening day—about 32 how frequently the restart provision is their multi-day driving and work time, hours off duty—would be a minimum being used. Ninety-five commenters and they may do so week after week. restart period, although the study responded, of whom 68 said that restart Such a change should be allowed only actually studied 58-hour recovery is being used weekly. Sixteen if there is convincing scientific evidence periods and never looked at recovery commenters said that the restart that beginning another week of driving periods brief as 32 hours. The group provision is being used one to three after such a short period of rest will not also said that another study cited by the times per month. OOIDA indicated that adversely affect safety. Agency, performed in 1997, found that among the members it surveyed, the 34- Public Citizen agreed that weekly when participants using simulators hour restart is the most consistently driving and on-duty time would be received 36-hour and 48-hour recovery used feature of the current HOS rule, radically increased under the rule. periods after four workdays, ‘‘there was but it would be inaccurate for FMCSA Under 7- or 8-consecutive-day limits, no objective evidence of driver to assume that all drivers are the most exhausted drivers, that is, recovery.’’ Public Citizen also said that continuously maximizing use of the those driving the daily maximums a 1997 literature review, which weekly 60 or 70 hours by using the 34- repeatedly, would in practice receive attempted to assess scientific support hour restart. NITL believes that the longest weekly recovery period, for a 36-hour restart, found no such substantial and/or continuous use of a while those driving and working less support, and in fact found only one ‘‘21-hour day’’ by drivers is a would reach the 60-hour or 70-hour study even dealing with an operational hypothetical result, rather than a likely limits later in the week and have a schedule that allowed such a brief consequence of the 2003 rule in the real shorter weekly recovery time. The 34- weekly recovery. Public Citizen quoted world. NITL goes on to state that as a hour restart, on the other hand, has the the authors that this was because ‘‘such practical matter drivers must take breaks effect of allowing truckers who a short reset period would result in and complete non-driving tasks over the maximize their driving to drive more schedules that would exceed current course of the day, such as meals and per week with less required recovery hours-of-work regulations in most mandatory vehicle inspections. IIHS time. Public Citizen said scientific countries.’’ stated that among the drivers it studies show that as drivers log more Regarding the current 24 consecutive interviewed, more than 90 percent said hours on the road over multiple days, hour restart for utility service drivers, they used the restart provision during their performance declines. They groundwater well transporters, and 2004. IIHS said a large majority reported concluded that drivers should not be construction material truck drivers, that the restart provision was part of able to accrue more than 60 hours of which is not affected by this rule, Public their regular schedule. J.B. Hunt driving over 7 consecutive calendar Citizen noted that in 2000 FMCSA Transport reviewed the work record of days or more than 70 hours of driving conceded that it ‘‘ha[d] found no sleep 80 randomly selected over-the-road over 8 consecutive calendar days. Fewer or fatigue research that supports any of drivers for a 30-day period, and found hours of driving would further improve the current exceptions or exemptions, that 74 percent of them used the 34- safety. including the 24-hour restart hour restart at least once during that In contrast, Alertness Solutions stated provisions.’’ The group said that at that period. On average, the drivers that once any cumulative sleep debt has time FMCSA recommended that these accumulated 62.25 hours per eight-day been erased through recovery sleep, an drivers be provided a weekly recovery period. Werner Enterprises, Inc. said individual should be considered rested that included at least two consecutive that its drivers use the 34-hour restart and without any acute sleep loss or nights of sleep. extensively and that they report feeling sleep debt. From a physiological The California Highway Patrol said adequately rested after doing so. perspective, after a 34-hour restart that the 34-hour restart rule should be Schneider National said that 26.1 period, a driver would be considered to increased for all CMV drivers from 34 percent of its driver breaks are between have zero sleep loss, acute or consecutive hours to 58 consecutive 34 and 44 hours. cumulative, and be appropriately rested hours. This would allow a driver time for duty. Alertness Solutions suggested to commute, a minimum of three Interaction of Weekly 60/7 and 70/8 that any subsequent duty hours accrued uninterrupted 8-hour rest periods, and 2 Rules With Restart would be accrued from a rested or full days off duty before returning to FMCSA explained in the 2005 NPRM ‘‘zeroed’’ sleep loss calculation and work with zero hours on their 60/70- that, under both the pre-2003 and 2003 added to the following total of work hour rule. Several drivers suggested that rules, most drivers are prohibited from hours. Adding these subsequent work the restart period should be shorter (e.g., driving after reaching a maximum of 60 hours retroactively to a ‘‘weekly’’ total, 24 hours) when drivers are on the road. hours of on-duty time in any after a recovery period, is misleading One driver said, ‘‘Spending 34 hours consecutive 7-day period, or 70 hours in and inappropriate. Alertness Solutions (less sleeping time) doing nothing in a any consecutive 8-day period. Of the said the weekly timeframe is an truck stop is more fatiguing than 106 commenters who addressed the arbitrary constraint in this physiological working.’’ Another driver suggested that topic, 80 (75 percent) expressed context. While the total hours can be the restart period should be only 24 opposition to the weekly limits and calculated to be higher in a ‘‘week’’ by hours for team drivers. particularly their interaction with the adding retroactively, this ignores the restart provision. physiological status of a driver who Length of the Recovery IIHS stated that, although the rule should be rested and ready for duty. In Nearly half of the 87 commenters who purports to maintain the prior 60/70- fact, the primary objective of a recovery discussed the appropriate length of the hour limits on ‘‘weekly’’ driving, the or restart period is to ‘‘zero out’’ any
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50020 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
accumulated fatigue effects and have a non-driving mode, which is legal, or in eliminating the restart provision would rested operator prepared for duty. the driving mode, which is not, the 34- not necessarily reduce the number of hour restart should reset the driver’s hours that its drivers worked each week. Limits on Use of Restart clock to zero. FedEx noted that Roehl Transport estimated that The NPRM asked whether a driver otherwise there is no foundation for eliminating the restart provision would who has already exceeded 60 hours on enforcement. Because a driver is only reduce its productivity by 1 to 2 duty in 7 days, or 70 hours in 8 days, required to carry the previous seven percent. The carrier believed that it should be permitted to utilize the 34- days’ logs, it is impossible for a field would also incur higher fuel costs, hour restart at any time, or should enforcement officer to look back far because drivers would be waiting at instead be required to take enough days enough to know if a reset was legitimate truck stops more often and would burn off duty to be in compliance with the or not. Because a driver cannot legally the fuel to maintain comfortable cab 60-/70-hour provision before beginning drive after 70 on-duty hours in eight temperatures. The carrier also thought the restart period. An Agency policy days or 60 on-duty hours in seven days, that drivers would spend more money directive issued on November 25, 2003, and given the impracticality of for meals and other living expenses, provides guidance to roadside law enforcement, FedEx Freight proposed because they would be spending more enforcement officials on how to that the restart be applicable to those time waiting while out on the road. A implement the 34-hour restart cases in which a driver exceeds the 70- regional carrier of agricultural products provision, when drivers have exceeded hour or 60-hour limit prior to the restart. noted that there are only certain times the 60/70 hour rule. The current policy Robert Transport suggested that a of the week when its drivers get tight on guidelines require drivers to come into driver should be allowed to use the 34- hours under the rolling weekly limits on compliance with the 7/8-day weekly hour restart in any circumstances. The hours. The carrier said that if the restart duty time before applying the 34-hour carrier said that when drivers exceed provision were eliminated, it would restart provision. their weekly limit, it is usually because have trouble hiring drivers to work for J.B. Hunt Transport argued that if the of unpredictable events such as a only a few days a week. It also believed purpose is to punish the driver for snowstorm, an unusually long wait at a that its overhead costs would increase. working over the 60 or 70 hours (which border crossing, or an excessive loading Brandt Truck Line, a short-haul they can do without a violation as long or unloading time. The carrier did not carrier, said that eliminating the restart as they do not drive), then the driver think that drivers should be penalized provision would not affect local carriers who exceeds the 60 or 70 hours should in these situations by having to wait operating under the 60/70 weekly limit, be required to wait before using the before utilizing the restart. but it would hurt the productivity of restart provision. On the other hand, if In contrast, the CHP asserted that local operations working under the 70/ the purpose is to ensure the driver is drivers must be in compliance with the 8 limit. The carrier noted that those rested and safe, then many of the applicable cumulative total before using carriers either would have to revise their current studies and reports would the restart provision. The CHP said that local Monday-to-Friday work schedules support allowing the restart at any time. if a driver is allowed to use the 34-hour to be four days (14 hours each), or J.B. Hunt urged FMCSA to clearly restart provision without regard to the would have to reduce the hours of each indicate which of these two purposes it 60/70-hour rules, the driver could easily 5-day driver from 14 hours per day to has chosen. The carrier said that the work in excess of 98 hours in an 8-day 11.67 hours per day. The carrier would current regulatory wording is not period before driving is prohibited. A then have to hire one additional driver consistent with the interpretive regional carrier also said that drivers for every seven drivers that it currently guidance that has been issued by the should have to wait until they are below employs. Perishable Distributors of Iowa Agency. the 60/70-hour period before using the indicated that eliminating the 34-hour OOIDA questioned FMCSA’s 34-hour restart. Otherwise, a carrier restart would hurt it financially because interpretation of the 2003 rule, which could send a long-haul driver back out it would not be able to use the 16-hour appeared to mean a driver who has on the road after only one day off, rule as often. (As provided by driven for 59.9 hours in 7 days or 69.9 which the commenter said was § 395.1(o)(3), drivers who have returned hours in 8 days, respectively, could use insufficient time off. to their normal work-reporting locations the 34-hour restart, but a driver who has for the five previous tours are allowed Economic Impact of Eliminating Restart driven 60.1 or 70.1 hours would be to operate up to the 16th hour once a required to go off duty for as many as FMCSA requested comments on the week, unless they take a 34-hour restart three days before being allowed to impact of eliminating restart in terms of during that week.) The carrier said it return to duty or begin a 34-hour restart productivity, annual revenues, and would also have a labor issue, because period. OOIDA said it is unaware of any operational costs. Responding to it would have to shorten its routes and study that supports the conclusion that FMCSA’s request, 68 commenters (49 create more of them. The drivers would drivers whose driving time is separated drivers, 18 carriers, and one trade be working fewer hours, creating by just minutes need such dramatically association) indicated that eliminating financial hardships. different amounts of off-duty time to the 34-hour restart would have a obtain restorative sleep. OOIDA asserted negative economic impact on the Safety and Health Impact of Eliminating that a driver could obtain more than trucking industry. Recovery sufficient rest during a 34-hour restart J.B. Hunt Transport said that FMCSA asked about the health impact regardless of whether the driver has eliminating the restart provision would and the safety impact of eliminating the exceeded the 60- or 70-hour rule. have a negative impact on the company, 34-hour restart. Both carriers and OOIDA asked FMCSA to withdraw its but the company had not quantified it. drivers said that elimination of the interpretation of the rule or to change A sample of its drivers averaged 62 restart provision would be harmful to the language of the rule. FedEx said that hours on duty in 8 days, which driver health. if a driver exceeds the rule’s limits, the indicated that the drivers were not using Werner Enterprises and Roehl driver is in violation and should be held the restart provision to work the Transport stated that elimination of the accountable. However, if a driver maximum number of hours possible. 34-hour restart would likely have a exceeds the rule’s limits, either in the Given that fact, J.B. Hunt reported that deleterious effect on driver health, and
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50021
would encourage drivers to adjust their FMCSA Response p. 2; Linklater, D.R. (1980), p. 198; work schedules to let them run every Based on the scientific data and Williamson, A.M., et al. (1994), p. 104]. day without taking a day off. For long- comments it has received, FMCSA has The Agency determined that the 34- haul drivers it would mean more non- decided to prohibit drivers from driving hour recovery period, which is based on productive sitting and waiting time after reaching a maximum of 60 hours a full 24-hour period plus an additional during a week in a truck stop. The of on-duty time in any consecutive 7- 10-hour period available for sleep, is the carriers asserted that wasting time day period, or 70 hours in any minimum restart which would provide results in a host of medical and life-style consecutive 8-day period. The Agency adequate restorative rest. FMCSA issues, including over-eating, will also allow any 7- or 8-day period explained in the 2003 rule that it frustration, stress, and a general feeling to end with the beginning of any off- considered a number of competing of job dissatisfaction in an industry duty period of 34 or more consecutive factors and opted for a uniform rule that where turnover is a significant issue. hours. FMCSA has determined that a ‘‘represents the best combination of safety improvements and cost Drivers away from home during the 34-hour recovery period permits a containment that can realistically be week need to be allowed to work as majority of drivers to have enough time achieved’’ (68 FR 22457). In the 2005 much as they would like within the for two uninterrupted nights of 8 hours NPRM, FMCSA reiterated that, ‘‘The 34- confines of safe operations. Maverick recovery sleep before returning to work hour restart was considered as a flexible Transportation had no data to support a in a new multi-day duty period. While alternative to the ‘‘mandatory weekend’’ negative impact on health and safety but the research on adequate recovery proposed in the 2000 NPRM * * * [70 believed that elimination would have a periods is somewhat limited, there is FR 3348]. big impact on driver lifestyle and general agreement that two nighttime morale. J.B. Hunt Transport said that The D.C. Circuit criticized FMCSA for periods (midnight to 6 a.m.) are neither acknowledging nor justifying removing the restart could have an sufficient for full recovery from fatigue. adverse affect on drivers’ health and that the 2003 rule ‘‘dramatically Data reviewed by FMCSA shows that 22 increases the maximum permissible could also negatively impact crash percent of CMV driving takes place at frequencies, because its drivers appear hours drivers may work each week’’ nighttime, between midnight and 6 a.m. (Public Citizen, at 1222–1223). In the to use the restart as much to reduce [Campbell, K.L, & Belzer, M.H. (2000), stress and to obtain longer periods of 2005 NPRM, the Agency explained that p. 115]. Many of these drivers would the restart provision provides an rest when needed as they do to simply have to sleep during the day. However, work and drive longer. Two carriers opportunity for increases in the total the 34-hour recovery period would give hours of permissible on-duty time in a stated the restart impacts drivers’ health drivers who perform the other 78 positively because they start fresh after 7-day period, after which a driver may percent of driving (between 6 a.m. and not drive a CMV, from 60 hours to 84 the period of time off that is spent at midnight) an opportunity to obtain two home the majority of the time. Two hours. It also provides an opportunity nights of recovery sleep prior to starting for increases in the maximum driving other carriers, however, noted that it the next work week. In adopting the would have no impact. time permitted in a 7-consecutive-day weekly limit and recovery provisions, period (from 60 hours to 77 hours). One driver thought that eliminating the Agency considered all relevant Likewise, the restart provision provides the restart provision would contribute to research, appropriate economic factors, an opportunity for increases in the total older, experienced drivers leaving the and comments received on the NPRM hours of permissible on-duty time in an industry. The resulting increase in the addressing driver health and public 8-day period, after which a driver may number of newer drivers would increase safety. not drive a CMV, from 70 hours to 98 the number of crashes, fatalities, and In the 2000 NPRM, the Agency hours and, provides an opportunity for injuries. Another driver said that proposed to require a weekly off-duty increases in the maximum driving time elimination of the provision would period or ‘‘weekend’’ which would have permitted in an 8-consecutive-day increase the number of drivers who imposed a regulatory requirement for a period (from 70 hours to 88 hours). A violate the HOS rules. Two drivers weekly off-duty period containing two number of advocacy groups argue that noted that the restart allows them to midnight to 6 a.m. blocks for all CMV these extra on-duty and driving hours stay on a regular 24-hour cycle, and drivers (65 FR 25562). In the 2003 rule, virtually guarantee that drivers are far changing it would disrupt the cycle. FMCSA explained that it opted for a 34- more fatigued under the 2003 rule than Three drivers stated that elimination hour restart provision in light of the under the pre-2003 regulations. would increase driver stress. One driver concerns expressed by commenters that Several commenters argued against stated that by the end of the 8-day cycle, the proposed ‘‘weekend’’ requirement retaining the recovery period. Their drivers are working odd hours because would increase daytime congestion and comments can be placed into three they are trying to work around what accident risks and produce irregular related categories: (1) Two nights of they did 8 days before. If they start over sleep schedules (68 FR 22477). sleep are needed for full recovery; (2) after being off duty for 34 hours they Commenters pointed out that the science does not support the 34-hour will not be punished for working the ‘‘weekend’’ proposal ‘‘assumes that recovery period; and (3), the recovery week before. Without the restart they every driver is subject to weeklong sleep period should be eliminated or must sometimes drive a short day and deprivation.’’ FMCSA admitted that it increased in length due to the potential work long hours during the early ‘‘may have overreached trying to for drivers to significantly increase their morning hours in order to make prevent the most extreme abuses by daily and weekly working hours. The deliveries. This disrupts their sleep imposing restraints on the whole driver Agency decided to adopt a 34-hour cycle and directly contradicts what the population’’ [Id.]. recovery period based on an extensive new regulations are supposed to correct. Studies indicated that cumulative scientific review of the literature, data, Finally, as described earlier under fatigue and sleep debt can develop over and comments. Adopting a recovery ‘‘Opposition to Restart,’’ several groups, a weekly period, and at least two nights period is based upon seven main points: including Public Citizen, AHAS, and of sleep are needed to ‘‘restore’’ a driver (1) Impacts of potentially longer weekly IIHS expressed strong opposition to the to full alertness [Belenky, G., et al. hours; (2) Operational data; (3) restart provision. (1998), p. 13; Jovanis, P.P., et al. (1991), Economic impact of the rule; (4) Review
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50022 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
of the literature regarding recovery and maximum amount of driving and on- recovery periods. The survey found that fatigue; (5) Public comments; (6) Public duty hours that are theoretically 95 percent of recovery periods exceeded safety and operational concerns and (7) allowed under the 2003 rule. For 34 hours in duration. Figure 8 shows Health impacts of eliminating or example, J.B. Hunt Transport said that that 50 percent of the recovery periods modifying the recovery provision. a sample of its drivers averaged 62 were longer than 58 hours, in contrast hours on duty per 8 days under the 2003 to 5 percent that were only 34 hours Impacts of Potentially Longer Weekly HOS rule, which indicates that the long. The data appear to confirm that, in Hours drivers are not using the restart fact, a majority of drivers are obtaining Some of the commenters paint a provision to work the maximum number two midnight to 6 a.m. sleep periods. picture of drivers working every of hours possible. Werner Enterprises, 2004 FARS data suggest that fatigue- additional hour allowed by the 34-hour Inc. also, said that there has been no related crashes, as a percent of all fatal recovery provision, and accumulating significant change in the number of truck crashes, have decreased under the dangerous levels of fatigue. As indicated hours worked by its drivers as a result 2003 rule. Similarly, carriers by the docket comments of motor of the 34-hour restart. FMCSA’s Field commenting on the 2005 NPRM carriers and industry associations, these Survey showed the average weekly (7- generally cite either stable or decreasing images have little to do with the real day) hours worked by CMV drivers is crash rates (see Section H-Crash Data). world. Information collected and 61.4 hours. FMCSA agrees with many commenters analyzed by FMCSA shows that most To reach the maximum driving or that the limited data available does not drivers are taking longer recovery driving and on-duty hours requires that provide a definitive picture of the periods than the minimum 34-hour nearly perfect logistics for picking up impact the 2003 rulemaking has had on recovery period that FMCSA is and delivering a load are routinely in fatigue-related CMV crashes. However, establishing under this rule. FMCSA place; in other words, total elimination the preliminary data reported and believes the average driver is not, and of waiting time to load, mechanical and reviewed to date does suggest that cannot realistically, drive and work the equipment problems, and traffic- and fatigue related crashes have decreased longer weekly hours, on a regular basis, weather-related delays. Additionally, as as a result of the 2003 rulemaking. as described by some of the explained in this rulemaking, FMCSA Economic Impact of the Rule commenters. and other independent survey data The 2005 FMCSA Field Survey (see collected since the 2003 rule was The safety and health effects of Section I.1) shows that between July adopted indicate that drivers are not, in modifying or eliminating the recovery 2004 and January 2005, 393 drivers used fact, maximizing their driving hours or provision need to be weighed against 1,411 recovery periods. The survey total on-duty time, nor do they routinely the significant economic costs that found that 95 percent of recovery take the minimum number of off-duty would be incurred by the transportation periods exceeded 34 hours in duration. hours. In view of these facts, drivers industry. As discussed in detail in the Figure 8 shows that 50 percent of the will not routinely accrue the maximum RIA accompanying this rule, increasing recovery periods were longer than 58 weekly driving and on-duty hours the restart period to 44 hours would hours, in contrast to 5 percent that were feared by some commenters. result in an extremely high cost relative only 34 hours long. The data appear to This is not surprising. As indicated to benefits. Specifically, the annual confirm that, in fact, a majority of above in section J.5, driving and on-duty costs to implement a 44-hour recovery drivers are obtaining two midnight to 6 hours under the 2003 rule would not be period were estimated at approximately a.m. sleep periods. expected to increase suddenly unless $600 million. The cost to eliminate the there had been an equally sharp spike 34-hour recovery provision in isolation, FIGURE 8.—RECOVERY PERIODS in demand for trucking services. or with no other HOS-related changes [Local & OTR] Although the U.S. economy is implemented, was even higher, with expanding, there was no unprecedented annual costs more than $1.5 billion from productivity losses to motor carriers, Restart period Instances Percent eruption of demand for transportation in (hours) 2004 and 2005 that might have while safety benefits were estimated at overwhelmed the normal, measured less than one-tenth the cost. In 34 ...... 66 ...... summary, the cost to modify the 35 to 58 ...... 635 45 growth of the motor carrier industry and >58 ...... 710 50 forced drivers to maximize their work recovery provision was estimated to be hours in order to handle a huge volume significant, which is due in part to its Total ...... 1411 100 of new cargo. The data FMCSA has extensive use by the industry, as discussed in detail throughout this Source: 2005 FMCSA Field Survey. collected bear this out. While some drivers may occasionally drive the rulemaking. In the 2005 NPRM, the Agency maximum hours allowed by the 34-hour As discussed further in this section, acknowledged that a driver using the restart rule, most will continue to work an analysis of survey data by Campbell 34-hour recovery period could work a about the same number of hours they and Belzer [Campbell, K.L., & Belzer, maximum of 77/88 driving hours or 84/ did before the 2003 rule. According to M.H. (2000), p.115] found that the 98 driving and other on-duty hours commenters, the great advantage of the average commercial truck driver drives depending upon which weekly rule the restart provision is not the increased approximately 22 percent of his or her motor carrier operated under (i.e., 60/7 work hours it allows, which are not weekly driving time during the or 70/8). It is highly unlikely that regularly used, but the scheduling midnight to 6:00 a.m. period. While the drivers could, in practice, continually flexibility it gives motor carriers and the economic impacts of restricting driving maximize their driving and on-duty added time at home it gives drivers. during the midnight to 6:00 a.m. period time and minimize their off-duty time. were not explicitly measured as part of Many of the larger carriers that Operational Data this rulemaking, such a restriction commented to the 2005 NPRM agreed As mentioned earlier, the 2005 would undoubtedly result in significant that in most instances drivers do not FMCSA Field Survey (see Section I.1) economic impacts to the motor carrier consistently have the opportunity, nor shows that between July 2004 and industry, given that 22 percent of are they taking it, to accumulate the January 2005, 393 drivers used 1,411 current driving time would have to be
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50023
shifted to the remaining 18 hours of the Combined Effects discussion, section wakefulness for about 24 hours or workday, or that period in which most J.11). longer. Partial sleep loss occurs when highway congestion already occurs. FMCSA believes the 34-hour recovery sleep is obtained within a 24-hour These impacts would come in the form period serves as an additional safety period but in an amount that is reduced of both reduced safety benefits as well benefit that affords a majority of drivers from the physiologically required as new operational costs to carriers. two nights of sleep recovery, which amount or habitual total. Sleep loss also Numerous comments submitted to the should sufficiently enable drivers to can accumulate over time into what is docket in response to the 2000 HOS eliminate or ‘‘zero out’’ any cumulative often referred to as ‘‘sleep debt.’’ Sleep NPRM spoke to this point. For instance, fatigue that may occur over several days. loss, whether total or partial, acute or comments submitted by the National While some research suggests that a 24- cumulative, results in significantly Private Truck Council, American hour period is sufficient to reduce degraded performance, alertness and Trucking Associations, Watkins- cumulative fatigue [Bonnet, M.H. mood’’ [Id.]. Shepard Trucking, the National (1994), p. 62], most research agrees that Under today’s rule, most drivers have Association of Small Trucking optimal recovery occurs when there are an adequate opportunity to limit the Companies, and many others, noted that two consecutive 8-hour sleep periods accumulation of fatigue. Ten hours off restrictions placed on nighttime driving from midnight to 6 a.m. [Dinges, D.F., et duty gives drivers enough time for 7–8 would force trucking companies to al. (1997), p. 276; Rosekind, M.R. et al. hours of sleep. In addition, adopting a place more of their trucks on public (1997), p. 7.3]. Under the 34-hour non-extendable 14-hour duty tour roadways during the already congested recovery period, 78 percent of the (reduced by one or more hours from the daytime hours. Additionally, some drivers will be able to obtain two pre-2003 rule) will also limit the carriers would have to purchase consecutive nights of sleep, and those accumulation of fatigue. The off-duty additional trucks that would be required whose schedules do not permit night and duty-tour provisions collectively to operate during the daytime period, in sleep will at least be provided with two help ensure that drivers can maintain a those instances where a single truck was 8-hour sleep periods and some schedule 24-hour cycle. Comments also support previously utilized by two drivers regularity. However, as stated by the notion that the restart helps drivers operating on separate day and night FMCSA’s 2000 NPRM expert panel, ‘‘If stay on a 24-hour circadian cycle. In schedules. As a result, all of these trucks the work shift ends late in the evening, addition, today’s rule moves drivers would be operating at a portion of the e.g., 11:30 p.m., it is conceivable that from an 18-to 21-hour driving time/off- day when traffic congestion is the worst, the driver could be in bed by midnight duty cycle, which is far closer to a 24- resulting in an increase in truck-related if there is an adequate place to sleep cycle than previous rules achieved, crashes and thereby offsetting any nearby. Under these circumstances the thereby reducing the severity of a potential safety benefits resulting from a total recovery time period could be as backward rotating schedule, resulting in reduction in fatigue-related truck short as 31 or 32 hours and still allow less driver fatigue. Further, the revised crashes from nighttime driving for two uninterrupted time periods sleeper-berth requirement provided by restrictions. Such a restriction would between midnight and 6:00 a.m.’’ this rulemaking also gives drivers the Additionally, nighttime drivers will also impose major operational costs to opportunity to obtain 7–8 hours sleep. be less fatigued on a daily and weekly those segments of the industry that use These provisions, together with the 34- basis, compared to the pre-2003 rule, nighttime runs to support daytime hour recovery period, are more than through the combined effects of the adequate to allow drivers to return to operations. For instance, a sizeable provisions of the rule being enacted baseline alertness levels. portion of the driving done during the today (see Combined Effects, section This provision protects a majority of nighttime period is performed by line- J.11). While the two consecutive 8-hour drivers because 78 percent of driving haul drivers of LTL companies, which sleep periods that some night drivers time occurs between 6 a.m. and haul freight between terminals during will utilize for sleep are not ideal, midnight [Campbell, K.L., & Belzer, the midnight to 6 a.m. period in today’s rule will limit the build-up of M.H. (2000), p. 115]. Specifically, the 10 preparation for local delivery services cumulative fatigue; hence, the two 8- hours off duty coupled with the the following day. hour sleep periods give drivers an reduced, non-extendable 14-hour duty Review of the Literature Regarding adequate opportunity to help minimize tour will provide drivers the Recovery and Fatigue such acute and cumulative fatigue, opportunity for sufficient recuperative regardless of their driving schedule. rest on a daily basis to drive and work FMCSA is convinced that the FMCSA has determined that, in the daily maximum limits allowed by combined impact of today’s rule, general, recovery time periods must take today’s rule. Therefore, the recovery including the 34-hour recovery period, into consideration the necessity for period serves as an added safety net to increases the safety to CMV drivers and overcoming cumulative fatigue caused protect drivers from instances when is not deleterious to their health. Other by sleep debt. [Dinges, D.F., et al. cumulative fatigue does occur over a 7- provisions of this rule restrict the total (1997), p. 267; Balkin, T., et al. (2000), or 8-day period. on-duty time to 14 hours that cannot be p. ES–8; Belenky, G., et al. (2003), p. 11; Research concerning specific recovery extended by breaks, require drivers to Van Dongen, H.P.A, et al. (2003), p. 125] periods is limited. Most sleep take 10 consecutive hours off duty Fatigue resulting from sleep loss is researchers agree the ideal recovery time before beginning a new duty period, and usually characterized as acute, resulting for cumulative sleep loss would be an eliminate the split sleeper-berth from a single insufficient sleep period, opportunity to obtain sleep during two provision, by requiring that drivers or cumulative, resulting from two or uninterrupted periods from midnight to utilize one sleeper-berth period of at more insufficient sleep periods 6 a.m. [Belenky, G., et al. (1998), p. 13; least 8 hours. These provisions limit [Rosekind, M.R., et al. (1997), p. 7.2]. Bonnet, M.H. (1994), p. 62]. duty time, while affording ample time Rosekind describes three types of sleep The 2003 rule treats daytime and for drivers to obtain the 7 to 8 hours of loss: ‘‘Sleep loss can occur either totally nighttime driving equally, both in terms sleep that the majority of the research or as a partial loss. Total sleep loss of hours permitted and required indicates is sufficient to restore a driver involves a completely missed sleep recovery time. While it is recognized to full alertness on a daily basis (see opportunity and continuous that daytime sleep obtained by night
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50024 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
drivers is not˚ equivalent in quality to the accumulated sleep debt from 5 days sample limited the ability to make night sleep [Akerstedt, T. (1997), p. 105] of work. reliable estimates of observed effects research concerning specific recovery IIHS and Elisa Braver cited Park et al. [Wylie, C.D. (1997), p. 27]. Given the requirements, particularly for night (2005), as a study that purportedly authors’ conclusion, the Agency has not drivers, is limited. Working/driving showed that 34-hour restart is an relied upon the Wylie study to evaluate during the night, especially midnight to insufficient period for recovery. The the adequacy of the 34-hour recovery 6 a.m., has the combined effect of Park study is an analysis of pre-existing period. affording poorer quality sleep (daytime crash and non-crash data representing As explained earlier, few studies sleep) and requiring the driver to work an estimated 16 million vehicle miles of address the effect of recovery periods and drive during the time when the travel. The study reported, in part, that between work periods spanning physiological drive for sleep is there is some evidence, although not multiple days, such as a workweek strongest. In preparation for the 2000 persuasive, that there may be risk [O’Neill, T.R., et al. (1999), p. 2; Wylie, NPRM, FHWA convened a panel of increases associated with significant off- C.D., et al. (1997), p. 27; Smiley, A., & experts to advise the Agency on science duty time, in some cases in the range of Heslegrave, R. (1997), p. 14]. After associated with various aspects of the 24–48 hours. The study suggests that reviewing the studies relevant to the 34- proposed hours of service regulation. ‘‘restart’’ programs should be hour recovery period, as cited in the With respect to night driving, the approached with caution. Two sets of 2003 rule and those submitted by Expert Panel, after reviewing the models were estimated with the data. commenters to the 2005 NPRM, the relevant literature, came to the Model 1 was developed to assess the Agency has determined that current conclusion that accident risk is effect of driving time which is divided scientific evidence is limited. Therefore, substantially higher during nighttime into 10, one-hour periods with the first changes in HOS regulations must, in hours, independent of the length of time hour serving as the baseline. The second addition to considering the relevant on the job, and this elevated risk cannot model retained driving time and added science and research, be accompanied be ignored. The expert panel also as covariates 43 driving schedules by sound regulatory evaluation that determined that driving between the manually derived and developed by encompasses all relevant issues, hours of midnight and 6:00 a.m. is cluster analysis. The most significant including public interest, cost, and associated with as much as a 4-fold or deficiency in the study was that there public safety. The Agency considered implementing more increase in fatigue-related crashes, were a number of HOS rule changes in a restart period of 44 hours. This would because our body clock is ‘‘set’’ to wake 2003 that make the data not applicable. give more drivers, specifically nighttime us up in the morning and to send us to First, the off-duty time has increased drivers, an opportunity to be off duty for sleep at night. The panel concluded that from 8 to 10 hours and the on-duty time went from 15 plus hours per day to only two nighttime periods between even when adequate sleep time is 14 hours per day. Both of these changes midnight and 6 a.m. However, it would available during the day, the time were intended to reduce any cumulative also encourage drivers to operate on a actually spent sleeping is less than at fatigue that might result. Second, the rotating shift, not to mention shifting night. Shift work and night work are study and particularly the models used more drivers to day time, thereby associated with acquisition of less sleep, could have been significantly improved increasing traffic during the day. A even when night work is permanent. if the study had undergone a peer forward-rotating schedule would result The panel surmised that this is caused review process. Lastly, the authors in a driving schedule that would cause by disrupting effects of circadian cycles concluded that ‘‘there is some evidence, a driver to begin working at a later time and that sleep obtained is not only although it is far from persuasive, that of day than the previously used weekly reduced in length, but also poorer in there may be risk increases associated schedule. Therefore, toward the end of quality. with significant off-duty time, in some each work week, the driver would begin The science supports the notion that cases in the range of 24–48 hours’’ work later and later each day, ultimately drivers should be provided recovery [Park, S–W., et al. (2005), p. 16]. The shifting the driving and on-duty time periods after a sustained period of daily Agency has examined the study, and into the nighttime hours. Consequently, work to compensate for any build-up of like its authors, has concluded that the the added recovery hours would have a cumulative fatigue or sleep deprivation findings are not persuasive that a negative impact on a driver’s circadian [Belenky, G., et al. (1998), p. 12]. There shorter recovery period presents greater cycle. is, however, no scientific basis for risk to CMV safety. The Agency attempted to determine concluding that every driver, or even Additionally, IIHS cited the Wylie whether the added hours of recovery, every nighttime driver, is sleep [Wylie, C.D., et al. (1997)] study as through the use of a 44-hour recovery deprived. As mentioned, FMCSA has stating that 36-hour recovery was an period, created a net benefit in reducing determined that the 34-hour recovery insufficient period to ‘‘zero out’’ any fatigue compared to the potential period gives the majority of drivers the cumulative fatigue. This study was also negative impact on circadian rhythm of opportunity to obtain two uninterrupted based on the pre-2003 rule—drivers establishing a rotating schedule. The nights of 8 hours of recovery sleep. operating under the new rule should be Agency has determined there is no However, other sleep researchers less susceptible to cumulative fatigue. conclusive scientific data to guide it in indicate that recovery to baseline The Wylie study was a small determining which factor (recovery time performance levels can be achieved demonstration study of a methodology vs. circadian disruption) is more with as little as 24 hours recovery time that could be used to evaluate drivers’ effective in alleviating fatigue. In sum, [Alluisi, E.A. (1972), p. 199; Feyer, recovery periods. Twenty-five drivers in in deciding to adopt a 34-hour recovery A.M., et al. (1997), pp. 541–553; O’Neill, small groups (4–5 drivers each) were period, the Agency considered that T.R., et al. (1999), p. 2]. Smiley and used to evaluate different recovery compliance with a 34-hour recovery Heslegrave [Smiley, A., & Heslegrave, R. periods (12, 36, and 48 hours) and period results in a CMV driver restarting (1997), p. 8], in their literature review driving time. None of the recovery work at approximately the same time of regarding 36-hour recovery, identified a periods examined were found to be of day as his or her prior shift. The 34-hour study that suggests one day off is sufficient length for driver recovery. The recovery period also avoids the shifting insufficient for night workers to pay off study concluded that the small subject of daytime to nighttime schedules,
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50025
which research indicates can disturb the 14-hour day, which is interrupted by a be spending less time at home as a circadian rhythm and decrease full day of rain (Tuesday). The result of the 34-hour recovery. It appears alertness. commenter explained the 34-hour that for some drivers the 34-hour recovery period allows the CMV driver recovery period may allow more time at Public Comments to resume work on Wednesday and be home and provide for greater In the 2005 NPRM, the 34-hour able to work in compliance with the stabilization of family life. The impact recovery period received support from regulations to accomplish the work of these factors is difficult to quantify more comment letters than any other required during that work week. The from a driver health perspective, but an provision (591 approved versus 109 Agency has decided the 34-hour improved quality of life may lead to disapproved). The commenters said that recovery gives motor carriers and improved health. Few research studies the 34-hour recovery period makes drivers the option of restorative rest have been conducted that address this scheduling much easier than working during the times work is not available particular issue. (See Combined with the old rolling weekly limits. or is interrupted. Given that the Effects—Section J.11, for further Comments also indicated that 34 hours recovery provision can be taken at any discussion.) off duty are long enough to allow time, it is a flexible safety tool that can As explained earlier, the 34-hour recovery (111 of 130 comment letters be used by drivers as an added recovery period provides the potential that addressed the issue). According to restorative safety measure. opportunity for drivers to increase their a 2004 survey, among 31 fleets that Health weekly driving and on-duty time. The responded, the 34-hour restart is the National Institute of Occupational most utilized feature of the 2003 rule. The 34-hour recovery provision has Safety and Health (NIOSH) reviewed the The survey, titled ‘‘A Survey of Private turned out to be one of the most popular relationship between long hours and Fleets on their Use of Three New provisions of the 2003 rule among CMV worker health. It generally concluded ‘‘Hours of Service Features’,’’ conducted drivers. Several carriers indicated they that long work hours are associated with by Stephen V. Burks of the University now see drivers proactively scheduling poorer health, increased injury rates, of Minnesota, found that ‘‘most widely extended off-duty recovery periods into more illnesses, or increased mortality. used among survey respondents is the their workweek and returning after However, the NIOSH review of the 34-hour Restart, which is employed on these extended periods with ‘‘positive literature on long work hours also average of 61 percent of the runs of attitudes and appearing rejuvenated,’’ documented a significant lack of data on firms in the sample’’ [Burks, S.V. (2004), which promotes improved driver health. p. 2]. Additionally, driver surveys have FMCSA examined the effect of the general health effects. NIOSH raised shown time to spend at home and with new rule on driver work hours by doubts about the strength of its own family was identified as a major priority comparing survey data obtained before conclusions, stating that ‘‘research [Belenky, G., et al. (1998), p. 41]. and after the 2003 rule was questions remain about the ways implemented. A detailed discussion of overtime and extended work shifts Public Safety and Operational Concerns those results along with confirming data influence health and safety.’’ NIOSH As mentioned earlier in this section, from multiple carriers can be found in did, however, examine three studies many comments to the 2000 NPRM Section E’’ Driver Health. These data that identified the relationship between suggested that by requiring all drivers to show that CMV drivers are not working long shifts, those typically worked by a take two midnight to 6 a.m. recovery longer hours as a result of the 2003 rule CMV driver, and health or performance. periods, FMCSA would be increasing than they did under the pre-2003 rule. The results are documented in Section the number of heavy vehicles operating In addition, the Field Survey conducted E—Driver Health. in daytime traffic. The commenters by FMCSA showed that many drivers Research indicates that psychological stated that this would create greater are taking recovery periods considerably factors do play a role in the health of hazards to public safety. While ideally longer than the 34-hour minimum. Fifty individuals, including CMV drivers. For all CMV drivers can benefit from percent of the drivers were found to example, CMV drivers generally want obtaining two nights of sleep, FMCSA have taken 58-plus hours of recovery the freedom to manage their workplace continues to believe, as stated in the time per week and 67 percent of drivers and schedule. Given the shortage of 2003 rule (68 FR 22477), that restricting took 44 hours recovery time per week, CMV drivers, the ready availability of nighttime driving by mandating a as explained in Section I.1. jobs, and the high level of reported midnight to 6 a.m. off-duty period for all One of the reasons that the 34-hour driver turnover, it is unlikely that any CMV drivers would have the recovery rule is so popular among one employer could require a driver unintended consequence of drivers is that it appears to provide for consistently to work the maximum substantially increasing the number of longer blocks of consecutive hours away hourly limits available in the 2003 rule heavy vehicles in daytime traffic, from work than the pre-2003 rule or today’s rule—unless a driver chose to creating greater hazards for the average provided ‘‘to rest, to be with family, do so. In other words, working long motorist simply because of the higher and to recover prior to the start of the hours is an individual choice. A driver density of vehicles. next work week. In a survey of its has the right to choose to work longer The Agency also took into membership, OOIDA asked ‘‘Do you get hours to earn greater pay as long as he consideration that not all motor carrier more time at home under the new HOS or she can operate a CMV safely. Survey operations work on a ‘‘fixed and regulation?’’ Twenty percent of OOIDA data presented and discussed earlier, recurring 7-day period,’’ instead having drivers responded ‘‘yes’’—that they from multiple sources, indicate that intense days of work followed by slack were getting more time at home as a contrary to the concerns expressed by times, and that other operations can be result of the 2003 rule. A slightly higher some commenters, drivers are, in fact, disrupted by weather. For example, one percent (21 percent) of long haul drivers not driving more under the 2003 rule commenter discussed how weather responded that they were getting more than they were under the pre-2003 rule. affects the logging transportation time at home compared to short-haul Instead, the 34-hour recovery period is industry. The commenter explained that drivers (18 percent). The survey being used in a positive way, i.e., more a CMV driver might begin the workweek question’s wording did not allow for an driver time with family and greater on Monday, fully rested and work a full examination of how many drivers may operational flexibility and productivity.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50026 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Two studies in the NIOSH review roadside law enforcement officials on economic costs and benefits that the found that compensation has a strong how to implement the 34-hour restart rule would impose on the trucking effect on the perceived impact of long provision, when drivers have exceeded industry and the public [49 U.S.C. working hours. Siu and Donald [Siu, the 60/70 hour rule. Regulatory officials, 31136(c)(2)(A) and 49 U.S.C. 31502(d)]. O.L., & Donald, I. (1995), p. 30] and van motor carriers and CMV drivers As a regulatory Agency, FMCSA must der Hulst and Geurts [van der Hulst, M., complained that the interpretive sift through general, and often & Geurts, S. (2001), p. 227] suggested guidance provided by FMCSA was not conflicting, scientific data and attempt that compensation may reduce the consistent with the wording of the to apply it ‘‘in the real world.’’ adverse effects of long work hours. The regulation. When considering previous studies Siu and Donald study [p. 48] reported After reviewing the comments and cited in the 2003 rule in support of the a relationship between perceived health considering all enforcement remedies 34-hour recovery period and subsequent status and overtime pay. Men from available to Federal and State regulatory studies cited in comments to the 2005 Hong Kong who received no payment agencies, FMCSA has decided that if a NPRM, the Agency determined that, in for overtime work had more health driver has exceeded the 60/70-hour rule, light of the scientific evidence, complaints than men who received the driver does not have to come into FMCSA’s best judgment is that 34 hours payment for overtime work hours. In compliance with the 60/70-rule before provides a minimum amount of time for addition, the van der Hulst and Geurts utilizing the 34-hour recovery period. a majority of drivers to recover from any study [p. 227] examined the relationship However, the driver could be subject to cumulative fatigue that might occur between reward and long working hours appropriate penalty provision as during any multi-day duty period. provided by 49 CFR Part 386 for in Dutch postal workers. This study also J. 9. Sleeper-Berth Use showed that if workers are violating the provisions of 49 CFR compensated, they are able to work 395.3(b). FMCSA is considering Under the 2003 rule, drivers are longer hours without negative additional enforcement remedies in its permitted to accumulate the minimum consequences to their psychological EOBR rulemaking for both motor off-duty period of ten consecutive hours health [Id., p. 237]. carriers and CMV drivers that violate four separate ways: (1) A minimum of Few studies have examined how the the provisions of 49 CFR 395.3(b). 10 consecutive hours off duty; (2) A number of hours worked per week, shift Questions also arose concerning the minimum of 10 consecutive hours in a work, shift length, the degree of control appropriate amount of time a driver sleeper berth; (3) By combining over one’s work schedule, compensation must be placed Out-Of-Service (OOS) consecutive hours in the sleeper berth for overtime, and other characteristics of prior to being allowed to drive again for and off-duty time that total 10 hours; or work schedules interact and relate to exceeding the 60/70-hour rule in 7/8 (4) By combining two separate sleeper health and safety [Caruso, C.C., et al. days. The length of an OOS period berth rest periods totaling at least 10 (2004), p. 30.] Van der Hulst, who also required to bring a driver back into hours, provided that neither period is conducted a review of research compliance is currently determined less than 2 hours (split sleeper berth literature on long work hours, based on the number of hours the driver exception). concluded ‘‘that the evidence regarding is in excess of the rule. The Agency did Although FMCSA has found that long work hours and poor health is change this practice with the drivers need 10 consecutive hours of inconclusive because many of the implementation of the 2003 final rule. off-duty time to obtain the necessary 7 studies reviewed did not control for In this rulemaking FMCSA has to 8 hours of restorative sleep per day, potential confounders. Due to the gaps decided the driver should be placed the split sleeper berth exception in the in the current evidence and the OOS for the minimum amount of time 2003 rule allows a driver to accumulate methodological shortcomings of the necessary to bring the driver into his or her sleep in two separate periods studies in the review, further research is compliance with the provisions of that totaled at least 10 hours. needed’’ [van der Hulst, M. (2003), p. § 395.3(b), or be allowed to take a 34- Splitting sleep into short periods is a 171]. hour recovery period, whichever is less. concern. One study, ‘‘The Effects of There is no conclusive research As explained earlier in this preamble, a Sleep Deprivation on Performance showing that long hours alone are 34-hour recovery period will allow a During Continuous Combat Operations’’ associated with poor health, especially driver ample opportunity to obtain [Belenky, G., et al. (1994), p. 129)], when taking into account individual sufficient rest, even if the driver has found that ‘‘Brief fragmented sleep has choice, compensation, and degree of exceeded the 60 or 70 hour limits. little recuperative value and is similar to control over one’s work schedule. Also, total sleep deprivation in its effects on given the results of FMCSA’s 2005 Conclusion performance.’’ While this study was survey of driver hours, it is unlikely that In adopting a 34-hour recovery conducted on soldiers attempting to the current HOS rules increase the period, FMCSA has taken into account sleep in busy, noisy command centers, overall number of hours a driver the weekly accumulation of driving and it may still be relevant in some cases actually works. In short, given current on-duty time allowed during each 7- when discussing sleeper berth rest, knowledge, there is no clear evidence and 8-day period, the adequacy of the depending upon the environment in that the work hours allowed by today’s 34-hour recovery, the cost/benefit ratio, which the vehicle is parked and the rule will have any impact on driver the overwhelming support of the 34- physical condition of the sleeper berth health. hour recovery by the transportation or truck-tractor cab. industry, including motor carriers and Sleeping in a sleeper berth has been Limits on the Use of the 34-Hour Restart drivers, the long-term effect on driver studied as it relates to truck fatalities. A Period health, and the overall safety aspects of study by the Insurance Institute for During the implementation of the retaining this provision. Highway Safety [Hertz, R.P. (1988), p. 7] 2003 final rule, several enforcement FMCSA is charged with creating found that splitting sleep into two issues were identified and subsequently minimum safety standards for CMV sleeper berth periods without having 8 addressed through an Agency policy drivers under the Motor Carrier Safety consecutive hours in the sleeper berth directive dated November 25, 2003. The Act of 1984 [49 U.S.C. 31136(a)]. The ‘‘increased the risk of fatality over policy memo provides guidance to Agency is also required to consider the twofold.’’ Hertz also found that split
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50027
sleeper berth use increased fatality risk consecutive hours off duty (either in a drivers get both less sleep and lower ‘‘in all analyses except those limited to sleeper berth or in combination with off- quality sleep when it is taken in two urban crashes and local pick-up and duty time). separate sleeper-berth or other rest delivery crashes.’’ [Id., p. 9] A total of 130 commenters expressed periods. Public Citizen cited a study In a 1996 safety study, the NTSB general approval of the split sleeper- suggesting drivers usually got no sleep found that the duration of the most berth provision. Of these, four were during logged sleeper-berth periods. recent sleep period in the 24 hours prior trucking associations (ATA, OOIDA, Public Citizen noted that a 1997 was the most important factor for Associated Petroleum Carriers, and OOIDA study showed that nearly 75 predicting a fatigue-related crash [Id., p. Corporate Transportation Coalition), 42 percent of drivers took their off-duty 51]. The NTSB also noted that the hours were carriers, 80 were drivers, and four time in a single block. The study of service regulations at the time (8 were private citizens. Commenters showed that those who split their hours off-duty) did ‘‘not provide the stated that the provision allowed drivers sleeper-berth breaks on average took two opportunity to obtain an adequate to take naps when needed, and to avoid 4-hour breaks. Public Citizen amount of sleep’’ and recommended traffic congestion. recommended that solo drivers should that the use of split sleeper berth time Maverick Transportation, C.R. take at least 10 consecutive hours off in be eliminated [Id.] England, OOIDA, and Werner stated a single block of time, regardless of FMCSA has determined that the that the split sleeper-berth exception is where the time was spent. available science and literature do not the only way a driver can take a needed The Minnesota Trucking Association support the continued use of the current nap without being penalized. Werner recommended that the split sleeper- split sleeper berth provision. Surveys noted that over 80 percent of its drivers berth option be changed to reduce the indicate that only a small percentage of use the sleeper berth on a regular basis. minimum time block to 1 hour, and to drivers split their sleeper berth time to C.R. England described a study of split allow up to three periods for the obtain the necessary off-duty time. An sleeping time which indicates that total calculation of the total split sleeper- OOIDA survey conducted in 2004 sleep time per 24 hours is the most berth time. indicates that their members use a split important determinant of performance, Minimum Necessary Length of Split- sleeper berth 13 percent of available and that sleep can be split into an Sleeper-berth Periods. The Agency workdays each month. A survey of anchor period of at least 6 hours sleep requested information on the minimum private motor carriers [Burks, S.V. and another period of 2 hours with a time in each of two split-sleeper-berth (2004), pp. 3–4] indicates that split combined effect roughly equivalent to periods necessary to provide restorative sleeper berth use in the private fleets is the performance and alertness that is sleep. Figure 9 provides the breakdown on average about twice as high as the obtained from a continuous 8 hour sleep of responses to FMCSA’s question on OOIDA number. However, Burks period. The commenters concluded that minimum sleeper-berth periods. pointed out that of the private firms that the sleeper berth, when used properly, use sleeper berths ‘‘half the sample did not reduce drivers’ ability to obtain FIGURE 9.—COMMENTERS: SUG- utilizes the [split] [s]leeper berth 2% of adequate restorative sleep. GESTED MINIMUM SLEEPER BERTH the time or less’’ [Id., p. 3]. Disapproval of the Split Sleeper-Berth PERIOD The split sleeper berth exception is Exception. Almost as many commenters also problematic from a driver health (a total of 112), however, expressed Minimum Carriers Drivers Other standpoint. There is a growing body of general disapproval of the split sleeper- time research demonstrating that sleep berth exception. These included AHAS, periods of 4 hours, or less, can result in Public Citizen, 18 carriers, 86 drivers, <2 hours 11 30 1 2–3 hours 3 11 a number of adverse physiologic the Georgia Department of Motor 3–4 hours 2 2 medical symptoms or conditions that Vehicle Safety, and four others. The 4–5 hours 5 7 1 result from having a specific disease, reasons for disapproval varied. Several 5–6 hours ...... 6 including reduced glucose tolerance, commenters noted that the rule was an 6–7 hours ...... 1 increased blood pressure, activation of invitation for cheating, while others 7–8 hours 1 4 1 (NTSB) the sympathetic nervous system, stated that split sleeper berth periods do reduced leptin levels, and increased not provide enough rest. Alertness Solutions reported research inflammatory markers [Alvarez, G.G., & Public Citizen strongly opposed the showing that obtaining 2 hours less Ayas, N.T. (2004), p. 59]. Consistent split sleeper-berth provision and stated sleep than needed (for an average adult with these studies, epidemiologic that the exception allowed solo drivers this equates to about 6 hours of sleep) research demonstrates that short sleep to divide their rest time any way they produces a reduction in performance duration is modestly associated with wanted, despite FMCSA’s repeated and alertness. The data showed that symptomatic diabetes, cardiovascular findings that drivers need 8 hours of obtaining a total of 8 hours of sleep per disease, and mortality [Id.]. Given the uninterrupted sleep. They noted that the 24-hour period is critical. However, uncertainty with regard to combining increase in minimum off-duty time in sleep can be split into an ‘‘anchor two sleep periods these studies suggest the current HOS rule from 8 to 10 hours period’’ of at least 6 hours of sleep and that drivers need one period of sleep was based on FMCSA’s assertion that a a period of 2 hours of sleep at another that is between 7 to 8 consecutive hours driver with only 8 hours of off-duty time time with a combined effect of daily in order to maintain a healthy generally obtained only 5 hours of sleep, performance and alertness that is lifestyle. and cited FMCSA’s statements that roughly equivalent to that obtained from studies point specifically to increased a continuous 8 hour sleep period. Comments crash risk after fewer than nine hours of Rosekind of Alertness Solutions Approval of the Split Sleeper-Berth off-duty time. They noted that FMCSA concluded that translating these Exception. The FMCSA asked has acknowledged that research from all scientific results into operational commenters to address the fundamental transportation modes suggested a need practice would suggest that an ‘‘anchor question of whether the Agency should for off-duty periods of 10 to 16 hours to sleep opportunity’’ of 6.5 hours and eliminate the split sleeper-berth ensure the needed block of sleep. They another sleep opportunity of 2 hours exception and require drivers to take 10 stated that studies are unanimous that would likely provide the minimum
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50028 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
number of sleep hours needed to safety, but provided no supporting data it had no evidence that the current rule maintain a performance level equivalent for the assertion. has had negative effects on fatigue or to one 8-hour sleep period. He said no The California Highway Patrol (CHP) health and did not support requiring a data indicate whether the order of the stated that the minimum sleeper-berth single 10-hour sleeper-berth period. two split sleep periods would have a period should be at least 5 hours; Frequency of Sleeper-Berth Use. In the significant effect. He also noted that a periods of less than 5 hours should NPRM, the Agency requested sleeper berth provides significant count against the 14-hour day. CHP also information about how often split flexibility and proximity that should be asked that ‘‘qualifying sleeper-berth sleeper-berth periods are used to obtain regarded when determining the role and period’’ be defined. the required 10 or more hours of off- opportunity for the use of split sleep. The NTSB essentially rejected the duty time. Sixty-five commenters Although there could obviously be a split sleeper-berth option, arguing that responded. Thirty commenters, variety of combinations that might be FMCSA should eliminate any provision including 7 carriers, 2 owner/operators, considered for split sleep, Rosekind that provides for a daily sleep period of and 21 drivers, said they only rarely or concluded that two factors are critical. less than 8 continuous hours. The never used the split sleeper berth First, at least one sleep period should current split exception allows for less option. Thirty-one commenters, provide sufficient opportunity for a than 8 hours of sleep in conditions that including 27 drivers, said they used it minimum of 6 hours of sleep. Second, are not optimal for sleeping, it said. often. the combined total sleep obtained in the Impact of Increasing Minimum Split Among the carriers, B.R. Williams split sleep periods should approximate Time for Longer Periods. FMCSA asked Trucking stated that less than 10 percent 8 hours. AHAS, however, criticized what the impact would be on driver of its drivers use the exception. The Rosekind for ignoring contradictory health, the safe operation of CMVs, and reason the drivers give is that it is too research that the split sleeper berth economic factors, if the Agency were to confusing. Tennessee Commercial periods do not provide sufficient rest retain the split-sleeper-berth provision, Warehouse discourages its contractors and performance restoration. but require that one of the two periods from using the exception, although be at least 7, 8, or 9 hours in length. about a quarter do. J.B. Hunt stated that Several carriers reported on the Four carriers, the California Highway a survey of randomly selected over-the- sleeper-berth patterns of their drivers. Patrol, and 25 drivers responded to this road driver logs showed that 14 percent Yellow Roadway reported that 70 question. Eight commenters (seven of the time drivers use the exception. percent of its team drivers split their drivers and a carrier) stated that a single Schneider stated that only 0.4 percent of sleeper-berth time into two 5-hour break of 7 hours would be sufficient and its drivers used the exception routinely. periods. C.R. England said its teams no additional sleeper-berth period International Paper cited research split 5 and 5 or 6 and 4; its solo drivers would be needed. Seven commenters presented at a Transportation Research usually split 6 and 4 or 7 and 3. (six drivers and McLane Company) Board conference in January 2005 Overnite reported that its teams split 5 supported 7 hours plus another break, indicating that 26 percent of drivers use and 5, explaining that this pattern not necessarily in the berth. Four the exception. means that a driver never drives more drivers and McLane also argued that OOIDA noted that the exception is the than 5 hours at a time. Brink Farms and everyone is different and a single rule is least used feature of the 2003 rule a driver also supported a 5-hour not appropriate. among respondents to its survey. About minimum. Schneider said it limits solo The California Highway Patrol stated 55 percent of drivers reported never drivers to 8 and 2 only and believes the that requiring 7, 8, or 9 hours as a using it, and 75 percent of drivers used foundation period for solo drivers minimum for one of two qualifying it from zero to four times in June 2004. should be 8 hours. Schneider provides sleeper-berth periods would allow a In contrast, Maverick stated that 70 its team drivers more flexibility. driver to rest only 1, 2, or 3 hours percent of its drivers use the exception. Some carriers suggested mandatory (during the second period) and then The Georgia Department of Motor split sleeper periods. Schneider drive for an extended period of time. Vehicle Safety stated that its inspections recommended that the total off-duty This might also lead to disruption of the and observations indicate that use of the time be 9 hours, with an 8 and 1 split, 24-hour cycle upon which the exception is very common. citing a study that advised strategic naps regulations are based. Brink Farms Health and Safety Impacts of of no more than 45 minutes. FedEx cited argued that, for teams, an 8 and 2 split Eliminating the Sleeper-Berth a study that showed that two periods would do more harm than good and Exception. Four carriers, ATA, 22 totaling 7.4 hours resulted in supported a 5 and 5 split for teams. It drivers, and OOIDA commented on the performance equal to that obtained from also supported allowing the second health and safety impacts of eliminating a single 8.2 hour sleep period. J.B. Hunt period to be out of the berth. the exception. Eighteen drivers stated also cited the same study to argue for an Yellow Roadway did not agree that 7 that eliminating the exception would anchor period of 6 hours, which could or more hours in the berth are the force drivers to drive when tired. be combined with another 2 hours of equivalent of 10 hours off duty. The 10- Although OOIDA noted that the split sleep and 2 hours off duty. hour period gives a driver a chance for sleeper berth exception is the least used Most trucking associations endorsed a sleep and other personal time. A split feature of the 2003 rule, it is 5 and 5 split. ATA stated that 5 and 5 with less than a 10-hour total would put ‘‘appreciated’’ by those who use it. They has worked for team drivers and the driver in a drive-sleep-drive-sleep include drivers who need to rest, but recommended continuation of the 2003 position that adds fatigue and otherwise face pressure not to take short rule. The Motor Freight Carriers diminishes ability. breaks that decrease their available on- Association (MFCA) also supported 5 McLane supported a combination of duty and driving time. It is the only and 5 splits, and stated that company sleeper-berth and off-duty time because flexibility in the rule available to drivers crash data indicate that this does not few people sleep for 10 hours. FedEx who absolutely need to rest. The sleeper result in an unsafe operating Ground said the single 10-hour period is berth also serves drivers whose runs are environment. MFCA stated that a rule rarely used; 2 and 8 and 3 and 7 are also of a certain length or whose pick-up or change that reduced team flexibility rarely used. Their drivers normally split drop-off times are arranged in a way that could have a negative impact on driver 5 and 5 or 6 and 4. FedEx stated that permits a continuous two-hour break.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50029
Team drivers also find the sleeper-berth However, another driver saw a later sleeper-berth period as part of a exception useful. positive effect in eliminating an split sleeper-berth calculation. Yellow Roadway stated that the opportunity for shippers, carriers, and Support for combining sleeper-berth exception gives drivers flexibility to receivers to use the exception to and off-duty time came from 141 divide driving time and take breaks pressure drivers to extend their work commenters, including ATA, Minnesota when needed and where they choose. day. One said it would not change Trucking Association, the National Reducing team drivers’ control of their anything, but would eliminate a lot of Association of Small Trucking work and rest opportunities could have logbook fines. Companies, 41 carriers (including UPS, a negative impact on driver health, Impact of Not Allowing a Single FedEx, J.B. Hunt, Con Way, and Werner) safety, and business operations. Sleeper-Berth Period to Extend the Duty and 94 drivers. Three drivers were Economic Impact of Eliminating Split Period. FMCSA asked commenters to opposed. Sleeper-Berth Exception. Five drivers provide information about how The California Highway Patrol and five carriers commented on this prohibiting the extension of the 14-hour recommended that a driver who issue. Schneider stated that only six tour of duty through the use of a single combines a last sleeper-berth period percent of teams use the exception with sleeper-berth period affects driver with 10 hours off duty not be penalized any regularity. However, elimination of health, safe operations, and economic for resting at home or be forced to sleep this option within Schneider’s teaming factors. in the truck. However, if sleeper berth operations would impact the Numerous commenters addressed this and off-duty time are combined, this organization by jeopardizing $250 issue. Nineteen drivers, two carriers, a same sleeper-berth period should not be million in business opportunities with consulting group, OOIDA, and the used in combination with a subsequent customers requesting team service. California Highway Patrol responded to sleeper-berth period. CHP the question about the health and safety Werner stated customer scheduling recommended definitions of ‘‘qualifying impacts. and delivery requirements are such that sleeper-berth period’’ and ‘‘subsequent The Georgia Department of Motor sleeper-berth period.’’ regular hours are impossible. In Vehicle Safety described the problem addition to the limited availability of The Georgia Department of Motor created by the current rule. An officer Vehicle Safety stated that a full 10-hour motels with truck parking, there is a who encounters a driver with a single significant cost to drivers staying in period of sleeper-berth time should not sleeper period in the current tour of be combinable with a shorter period of motels and the inconvenience factor of duty must either predict the driver’s maneuvering a large truck through time. future actions, or question the driver, ATA submitted an extensive urban or suburban areas to locate a and make a judgment call about the motel. If the sleeper berth exception argument in favor of amendments to the driver’s status. split sleeper-berth provisions. ATA used were not available, there would likely The California Highway Patrol be a further increase in the truck four hypothetical schedules to illustrate addressed the negative impact of its argument, with three of the parking problem, congestion, and driver extending a driver’s work day with only turnover. schedules in compliance with the 2003 one sleeper-berth period, stating that it rule, and one not in compliance. ATA McLane stated that elimination of the effectively circumvents the intent of the claimed its hypothetical schedules exception would virtually eliminate use regulation and changes the driver’s 24- demonstrated that, despite FMCSA’s of sleeper-berth by all but cross-country hour cycle. It would allow drivers to statement that drivers are free to take long-haul drivers. McLane’s operating operate CMVs long after the completion naps or other rest breaks, the rule is a costs would significantly increase, due of the intended 14-hour work period. strong disincentive to doing so if time to the need to hire additional drivers The Daecher Consulting Group also in the sleeper berth results in lost work and equipment, while the overall noted that allowing the extension would time. earnings for existing drivers would be permit a slippage or rotation of the duty ATA also argued that the rule creates reduced. day. uncertainty for logbook inspectors. Quality Transport stated that OOIDA described the requirement Whether an extended work period is eliminating the sleeper berth exception that both periods be in the sleeper berth, legal or illegal depends on the would largely defeat the purpose of even if the driver is at home, as intentions and subsequent actions of the team driving. If the teams cannot use the ‘‘absurd.’’ They stated that there is no driver, neither of which can be known sleeper-berth rule, then they have no justification for the requirement and are to the enforcement officer at the time of option but to show on-duty time for any not aware of any study that indicates a logbook check. time spent not driving. This would be that sleeping in a sleeper berth is better Based on its analysis, ATA a huge economic loss to companies than a bed. OOIDA recommended that recommended, and provided an using team operations, as it would the driver be able to replace the second extensive discussion of the benefits of, basically do away with the benefit of period with 10 hours off. This would detailed amendments to 49 CFR running as a team. The loss would affect allow the driver the flexibility to restart 395.1(g)(1)(iii) and 395.3(a)(2) and the income for teams, plus income for the the next day’s schedule without having addition of a new exception specifying company they are leased to or drive for. to relate back to the first sleeper period. the following: It would affect the current national UPS supported the OOIDA position. market by curbing deliverability of Combining Sleeper-Berth Periods A property-carrying driver is exempt from the requirements of § 395.3(a)(2), and may many products. With Off-Duty Periods To Calculate Off- extend the 14-hour limit in the event that the A driver also believed that the effect Duty Time. FMCSA asked whether the driver has one sleeper-berth period with a of eliminating the exception would be to rule should allow sleeper-berth periods minimum duration of 2 hours, provided that eliminate team operations. One driver to be combined with off-duty periods the driver does not exceed 14 cumulative said he would have to stop driving over- when calculating a continuous off-duty hours of work or 11 hours of driving, and that the-road. Three stated that it would period. The Agency also asked whether the on-duty time is followed by an off-duty affect drivers who use it to avoid traffic a sleeper-berth period that is part of a time of at least 10 consecutive hours. and shipper delays. One carrier simply period of 10 or more consecutive hours The American Bakers Association stated that it would decrease efficiency. off duty should be combinable with a stated the inability to combine off-duty
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50030 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
and sleeper-berth time ‘‘must have been sleeper berth time. The Agency will averaged only 5.5 hours. A study of an oversight,’’ arguing that it made no continue to allow drivers to use the soldier performance [Belenky, G.L., et sense for operators to be tying up sleeper berth to obtain their required al. (1987), p. 1–10] noted that ‘‘the vast equipment on the lot in the sleeper off-duty time; however, drivers using majority of adults required 6–8 hours of berth when they want to go home and this option will be required to obtain sleep each night to maintain adequate, go to bed. one primary sleep period of at least 8 normal levels of daytime arousal.’’ Some carriers supported the ATA consecutive hours. Unlike drivers who Belenky et al., further noted that a position. Others made their own have to commute to and from work and person getting ‘‘six to eight hours sleep recommendations for changes. UPS perform personal tasks after going off each night will maintain cognitive proposed permitting drivers to extend duty, sleeper-berth drivers do not need performance’’ [Id., p. 1–17]. the 14-hour on-duty window to account 10 consecutive hours off duty in order Research supports the benefits of for breaks of at least 2 hours taken in a to have an opportunity for 7–8 sleeping at night, rather than during the sleeper berth when they are combined consecutive hours of sleep. Because day, but the needs of the U.S. economy with 10 hours of off-duty time their bedroom travels with them, and the operational realities of the immediately following the shift. UPS sleeper-berth drivers can obtain motor carrier industry make it is also proposed that drivers be permitted adequate sleep in an 8-hour period. impossible for FMCSA to ensure that to extend the 14-hour on-duty window These drivers will also be required to drivers obtain all of their rest during to account for sleeper-berth periods of at take another separate two consecutive nighttime hours. Given this, and the least 2 hours when they are combined hours of off-duty time, sleeper berth results of earlier studies that suggest with a subsequent sleeper-berth period time, or a combination of both. These sleep obtained in a sleeper berth is not of any length, if it is immediately additional hours will allow time for as restorative as sleep obtained in a bed, followed by at least 10 hours of off-duty naps and other breaks, and will prevent today’s rule will require drivers using time. Both FedEx Ground and Werner drivers from operating on a 19-hour the sleeper berth exception to obtain at recommended strongly that drivers be schedule (8 hours in the sleeper berth least one primary sleep period of 8 able to finish their 10 hours at home if followed by 11 hours of driving) that consecutive hours in the sleeper berth. they have a previously qualifying would seriously compromise their This provision maintains some of the sleeper-berth period. J.B. Hunt circadian rhythm. flexibility provided by the 2003 rule, concurred and recommended that this For example, a driver who takes 9 and ensures that drivers have the be allowed for other sleeping consecutive hours in the sleeper berth opportunity for 7 to 8 consecutive hours accommodations as well. It noted that would later have to take at least 2 of uninterrupted sleep. an FMCSA enforcement bulletin consecutive hours of sleeper-berth or The economic impact of this allowed this, but many jurisdictions off-duty time or a combination thereof provision will be the greatest in the refused to implement the bulletin to meet the minimum requirements. long-haul sector of the industry; because it directly contradicted the Since the driver did not obtain a single however, the ‘‘Commercial Motor plain language of the regulation. period of 10 consecutive hours of off- Vehicle Driver Fatigue, Alertness, and duty or sleeper berth time, the driver is Countermeasures Survey’’ [Abrams, C., FMCSA Response required to make up the balance of his et al. (1997), p. 12] found that the Primary Sleep Period. Although the or her off-duty or sleeper berth time majority of drivers using the split comments to the docket are closely later in the duty period. sleeper berth exception already average divided over how to address the split These requirements will ensure that 6 to 7 hours in the sleeper berth. In sleeper berth exception, the majority of drivers using the sleeper berth to obtain addition, the 2005 FMCSA Field Survey studies and science clearly demonstrate the minimum off-duty time have at least data show that of the 2,928 sleeper berth that drivers need to have at least one one primary sleep period of a sufficient periods reviewed, 68 percent exceeded primary sleep period of 7 to 8 length to provide restorative benefits. 6 hours and 52.6 percent exceeded 8 consecutive hours. The second period will allow a driver to hours, so the overall impact on the A study of chronic sleep restriction have time for a nap or rest break or industry should be relatively small [Maislin, G., et al. (2001)] showed that provide an opportunity to attend to [FMCSA Field Survey Report (2005), p. it is possible for a person to avoid personal matters. The opportunity to 2]. physiological sleepiness or performance take a nap later in the day is an Rest Breaks. The requirement for an deficits on less than 7 hours of sleep; important benefit, especially since additional 2 consecutive hours of off- however, the subjects in the study were drivers taking advantage of the sleeper duty or sleeper-berth time for drivers obtaining their primary sleep period at berth provision may be operating on an using the sleeper berth provides a night and were supplementing their irregular/rotating schedule, getting out number of additional benefits. It ensures sleep with longer naps later in the day. of phase with their natural circadian that all drivers (those using a sleeper Maislin et al. found that subjects who rhythm. berth, and those not using a sleeper slept for 6.2 hours at night combined Overwhelmingly, the research berth) will have the same amount of with a nap of 1.2 hours had lower levels literature supports the need for most time to drive and work every week. It of sleepiness and higher levels of people to obtain 7 to 8 hours of sleep also provides the opportunity for a performance, compared to subjects who per day. A study of driver fatigue sleeper berth driver to eat meals, bathe, slept shorter periods without naps. [Wylie, C.D., et al. (1996), p. ES–10] exercise, and conduct other personal While 6 hours of sleep at night with a found that the average amount of activities. Most importantly, the 2 nap may be the minimum needed to ‘‘ideal’’ sleep time reported by consecutive hours provide the driver maintain an adequate performance participating drivers was 7.2 hours. The with the opportunity to nap, if and level, it is unrealistic to think that the NTSB [NTSB (1996), p. 26] found that when needed. Agency can regulate what time of day a drivers in non-fatigue related crashes Rest breaks, and especially naps, are driver goes off duty or sleeps in a had averaged 8 hours of sleep during an important tool in combating fatigue sleeper berth. their last sleep period prior to the crash and the FMCSA encourages their use. Consequently, today’s final rule versus drivers involved in fatigue- As noted by Wylie [Wylie, D. (1998), p. modifies provisions for the use of related crashes whose prior night sleep 13], ‘‘[n]aps in trips with judged
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50031
drowsiness appeared to result in using sleeper berths have a fourth calculation of the 14-hour duty recovery effect, compared to the option to obtain the equivalent of 10 ‘‘window.’’ This will ensure that drivers relatively high levels of drowsiness seen hours off duty by combining two using a sleeper berth to obtain their in the hour prior to napping.’’ Research separate periods of sleeper berth or off- minimum off-duty time are not on napping indicates that while it does duty time that total at least 10 hours. negatively impacted by having to take at not reduce accumulated fatigue, it does When calculating off-duty time for least one sleeper berth period of at least refresh a driver and improves drivers using sleeper berths under this 8 consecutive hours, which would performance in the near term. In another rule, only two separate periods may be normally count against their 14-hour study of military operations [Caldwell, used and both must add up to at least duty ‘‘window,’’ leaving the driver with J.A., et al. (1997), pp. 2–5] the subjects 10 hours. One period must be at least 8 only 6 hours of time to work and drive. performed better after napping consecutive hours of sleeper berth time. Any period of less than 8 consecutive compared to resting without sleep. In The second period must be at least 2, hours in the sleeper berth will count addition to working as a short-term but less than 10, consecutive hours of toward calculation of the 14-hour countermeasure to fatigue experienced sleeper berth time, off-duty time, or a ‘‘driving window.’’ during working hours, another study combination of both. In the earlier example, the driver [Garbarino, S., et al. (2004), p. 1300] For drivers using two separate periods would have reached the 12th hour of his found that napping ‘‘before night work of sleeper berth and off-duty time, the or her 14-hour duty ‘‘window’’ at 5 p.m. can be an effective countermeasure to calculation of the driver’s 11-hour when he or she went into the sleeper alertness [deterioration] and driving limit and 14-hour duty berth for 8 consecutive hours. Because performance deterioration.’’ ‘‘window’’ will begin from the end of the driver has 10 hours of off-duty time The Agency recognizes that drivers the first period used in the calculation. (2 hour break, combined with 8 who are able to get 7 to 8 hours of sleep This will provide a simplified method consecutive hours in the sleeper berth), per day may not require additional sleep for calculating a driver’s on-duty and the calculation of the 14-hour duty and it would be unreasonable to require driving time and address some of the ‘‘window’’ begins at the end of the 2- the driver to stay in the sleeper berth for enforcement concerns received in the hour break (noon). However, when the an additional two hours. For this reason, comments. driver starts driving at 1 a.m., he or she the FMCSA will permit drivers to For example, following 10 would only be at the 5th hour of his or accumulate the additional two hours as consecutive hours off-duty, a driver her 14-hour duty ‘‘window,’’ because sleeper berth time, off-duty time, or a begins driving at 5 a.m. At 10 a.m., the the 8 consecutive hours in the sleeper combination of both. Two hours are driver takes 2 consecutive hours off- berth are excluded from the calculation. long enough to permit time for a nap, as duty (1 hour of off-duty time followed The Agency believes that this will well as time to attend to personal by 1 hour of sleeper berth time). At simplify the calculation used by matters. Studies have found that naps noon, the driver drives for another 5 enforcement officers during roadside do not have to be long to improve hours. At 5 p.m., the driver goes into the inspections, as well as by drivers as they performance. A study of working at sleeper berth for 8 consecutive hours. At calculate their daily on-duty and driving night [Sallinen, M., et al. (1997), p. 25] 1 a.m. the driver begins driving again. limits. found that naps of less than one hour In this example, the calculation of the In the Agency’s best judgment based most influenced performance, and a driver’s on-duty and driving time begins on available data and comments, this survey of train engineers found that 20 at the end of the first off-duty/sleeper sleeper berth provision creates an minute napping was effective for berth period, or noon. Therefore, this optimal balance by providing drivers enhancing alertness [Moore-Ede, M., et driver has 5 hours of driving time with one 8-hour sleep period, combined al. (1996), p.10]. available at 1 a.m. At no time will a with an additional sleeper berth or off- Although this provision on the use of driver have a combination of more than duty period, while maintaining sleeper berths does reduce the total 11 hours of driving time on either side operational flexibility so as not to flexibility provided in the 2003 rule, it of a sleeper berth period or off-duty impose an unreasonable burden on provides motor carriers and drivers with period that is less than 10 hours in motor carrier productivity. some operational flexibility while length. J.10. Regulation of Short-Haul ensuring that drivers are afforded the The driver’s 14-hour duty ‘‘window’’ Operations opportunity of at least one 8-hour sleep is calculated differently from the way it period each 24 hours, with the was calculated under the 2003 rule. As Motor carriers whose operations additional benefit of providing the identified in a petition filed by ATA on require the driver to return to their option for a nap or break. November 3, 2003, and numerous work-reporting location every night and Enforcement. The prior split sleeper docket comments on this subject, are conducted solely within a 150 air- berth provision caused some confusion FMCSA will not count any sleeper berth mile radius from their terminals are in law enforcement and the motor period of at least 8 but less than 10 generally considered short-haul carrier industry. The question has been consecutive hours toward the 14-hour operations. Short-haul drivers perform a how to calculate split sleeper berth limit after coming on duty. The ATA variety of non-driving tasks during the time, and how split sleeper berth petition requested that any sleeper berth day, including receiving the day’s periods affect the calculation of the 14- period of at least two consecutive hours schedule, loading and unloading the hour duty ‘‘window.’’ be excluded from the calculation of the vehicle, making deliveries, getting in The calculation of the driver’s 11- 14-hour duty ‘‘window,’’ provided that and out of the vehicle numerous times, hour driving limit and 14-hour duty the driver took 10 consecutive hours off- lifting and carrying packages, and ‘‘window’’ will restart once a driver has duty either upon reaching his or her 14- engaging in customer relations. Because at least 10 hours of off-duty time, hour limit, or 11-hour driving limit. The of the nature of short-haul operations, whether it is (1) 10 consecutive hours of Agency’s response to that request, and smaller vehicles (i.e., less than 26,001 sleeper berth time; (2) 10 consecutive the comments provided to the docket, is pounds) tend to be favored for their hours of off-duty time; or (3) a to allow any sleeper berth period of at maneuverability, which makes them combination of 10 consecutive hours of least 8 but less than 10 consecutive ideal for pick up and delivery in a local, sleeper berth and off-duty time. Drivers hours to be excluded from the or urban setting.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50032 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
A review of the U.S. Census Bureau’s referenced earlier. However, the associations, and seven drivers Vehicle Inventory and Use Survey representation of short-haul vehicles recommended different rules for short- (VIUS), 2002, shows that trucks weighing less than 26,001 pounds in haul operations. weighing 26,000 pounds or less make large truck crashes is much lower than Associations up about half of all registered trucks and their share of the total truck population represent about a quarter of all truck and miles traveled. The regulatory The National Ready Mixed Concrete miles traveled. Trucks weighing 26,000 impact analysis (RIA) for the 2003 HOS Association (NRMCA), the National pounds or less accounted for only one- rule bore this out, and researchers Sand, Stone, and Gravel Association seventh of all trucks involved in non- estimated the costs of imposing that rule (NSSGA), the Colorado Ready Mixed fatal crashes, and only one-tenth of all on short-haul carriers would far exceed Concrete Association (CRMCA), and an trucks involved in fatal crashes, any safety benefits resulting from a independent supplier of ready-mixed according to data found in the Motor reduction in fatigue-related crashes. concrete recommended separate rules Carrier Management Information System Conversely, the net benefits of imposing for short-haul drivers that would (MCMIS) and the Fatality Analysis those HOS rules on long-haul carriers recognize they operate under different Reporting System (FARS). Relative to were quite positive, primarily due to a conditions having varied impacts on their share of registered trucks and reduction in fatigue-related crashes by driver safety, fatigue, and health. annual truck miles traveled, trucks long-haul drivers. NRMCA stated that the 2003 HOS rule weighing 26,000 pounds or less are Today’s HOS rule adopts two mainly addresses the fatigue problems underrepresented in fatal and non-fatal exemptions for short-haul drivers also of long-haul truckers while ignoring the truck-involved crashes. provided in the 2003 rule, though fact that short-haul drivers work within A study of the Impact of Local/Short neither significantly improves the a limited radius, do not spend the Haul Operations on Driver Fatigue by regulatory cost/benefit ratio of short- majority of their time driving, begin and Richard Hanowski and others suggested haul operations. The first is known as end their shifts at the same location, and ‘‘fatigue may not be the most critical the ‘‘100 air-mile exemption,’’ and sleep at home every night. A survey issue’’ in the safety of short-haul provides relief from a paperwork burden conducted by the NRMCA in 2000 operations [Hanowski, R. J., et al. for drivers who meet specific duty time indicates that drivers of ready-mixed (1998), p. 72]. Short-haul drivers who requirements (report to and leave from concrete trucks spend, on average, only were asked to describe the safety work within 12 consecutive hours) and 49 percent of their time driving. The problems they faced ranked fatigue fifth, operate in a 100 air-mile radius of their NRMCA, supported by the NSSGA and below problems as obscure as the design work reporting location [49 CFR the CRMCA, recommended extending of loading docks and freeway on- and 395.1(e)]. Because drivers operating the current 100 air-mile radius to 150 off-ramps. In explaining why short-haul within a limited radius commonly make miles, and offering drivers a 16-hour operations did not produce critical frequent stops, deliveries, and pick-ups duty window, with no driving allowed levels of fatigue, the drivers said that throughout the day, which would after 14 consecutive hours from the start ‘‘unlike long-haul drivers, [they] normally require many entries on their of the duty period. typically work during daylight hours, records of duty status (RODS), this Construction operations are mainly have work breaks that interrupt their provision exempts drivers from short-haul in nature, but other driving, end their shift at their home completing RODS, as long as the motor commenters argued that the base, and sleep in their own beds at carrier maintains a proper daily time characteristics of their particular night’’ [Id.]. Hanowski et al. concluded record. The Interstate Commerce industries also require special HOS that ‘‘[p]erhaps, when it comes to Commission adopted this provision, as rules. These other comments focused on fatigue, [local/short-haul] drivers are a 50-mile exemption, in 1952. drivers transporting farm products or more like workers of non-driving The second exemption gives drivers delivering fuel to farms during peak professions where fatigue may not result the flexibility to extend the 14-hour seasons; drivers performing seasonal log from their work, as in long-haul, but duty ‘‘window’’ by two hours once a hauling in remote areas; pipeline repair may be impacted by their personal lives week [49 CFR 395.1(o)]. The two extra truck drivers; propane delivery drivers (such as not getting enough sleep at hours can be used by the driver to meet who make night service calls and night)’’ [Id. p. v]. While FMCSA cannot peak demands, accommodate training, respond to emergencies; and drivers of control drivers’ off-duty behavior, the stage trucks for the next day’s deliveries, vehicles involved in environmental 2003 HOS rule and today’s final rule or complete required recordkeeping. remediation and emergency response. give local/short-haul drivers two more This final rule adopts both of these The American Bakers Association asked hours off duty than the regulations in exemptions; however, as discussed that short-haul operators be allowed to effect in the late 1990s, when the later, the ‘‘100 air-mile exemption’’ is retain the once-a-week 16-hour duty- Hanowski study was completed. If incorporated into the new regulatory period. Two contractors to the U.S. fatigue was not critical at that time, it is regime provided for short-haul drivers Postal Service opposed the current 14- even less likely to be a significant threat of small CMVs in today’s rule. Today’s hour provision, arguing that unless today. Compared to long-haul drivers, final rule makes no changes to the ‘‘16- split-shift time spent at home or in a local short-haul drivers have a better hour’’ provision found at 49 CFR designated sleeping area qualifies the opportunity to obtain the daily 395.1(o). same as a sleeper-berth, the rule will restorative rest needed to maintain hurt small companies. These companies Comments vigilance in an environment that would then have to hire more drivers to provides quality sleep. In response to the discussion of short- accommodate the additional off-duty Historically, the Federal Motor Carrier haul operations in the 2005 NPRM, the time required, which in turn would put Safety Regulations have recognized Agency received 18 comments more inexperienced drivers on the road. differences between long-haul and addressing the need for different HOS The U.S. Chamber of Commerce short-haul operations. FMCSA realizes rules for this class of operation. stated that the FMCSA’s 2003 RIA that short-haul operations are involved Specifically, five carriers, four trade demonstrated that short-haul operators in crashes, and sometimes even fatal associations or firms representing the were not expected to see any benefits crashes, as evidenced by the crash data construction industry, two other trade from the rule adopted that year, which
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50033
supports the need for separate handling 14-hour duty ‘‘window’’ by 2 hours the 17th hour of wakefulness, after of short-haul and long-haul operations. twice per week, but the driver must: (1) which performance capacity was The Chamber argued that short-haul Have 10 consecutive hours off-duty sufficiently impaired to be a safety operations should not be subject to a prior to the start of the workday; (2) not concern [Williamson, A.M., et al. rule that fails to produce a net benefit drive after the 14th consecutive hour (2000), p. 19]. for those operations. since coming on-duty on the days he or While the short-haul industry can she does not use the 2 additional hours experience long work days during peak Carriers provided by this provision; (3) not drive times of the year, it is the Agency’s best United Parcel Service (UPS) cited more than 11 hours after coming on judgment that longer workdays will not research showing that fatigue effects are duty; (4) not drive after having been on translate into longer driving times in the less likely in short-haul drivers because duty for 60 hours in a 7-day period, or short-haul environment where there is they work daylight hours, have work 70 hours in an 8-day period, including relatively little driving, but rather breaks, begin and end at their home the 34-hour recovery provision; (5) not several other job-related activities. As location, and sleep in their own bed at operate beyond a 150 air-mile radius noted earlier, short-haul drivers rarely, night. The research also found that from the location where he or she if ever, accumulate 11 hours of driving, drivers who work in short-haul reports to, and is released from, work; regardless of the workday length. operations have varied task and (6) return to his or her work FMCSA concludes that the rhythm of responsibilities compared to the reporting location at the end of each local operations will limit the use of this monotonous task of driving long-haul work day. In addition, these drivers will new provision in any case, but the routes, and this is also a factor in the not have to keep records of duty status. Agency wants to give this segment of lower level of fatigue. However, the employing motor carrier the motor carrier industry as much UPS noted that if short-haul driving is must maintain a time record for six flexibility as possible to structure their not a substantial cause of fatigue, strict months showing the time the driver operations efficiently, while still HOS regulations are less likely to have reports to, and is released from work, providing a safety regime to address beneficial safety effects. UPS concluded consistent with the time keeping deficiencies. that the HOS rule should be modified to requirements under the current 100 air- The research is limited on issues recognize the differences between long- mile radius exemption. To simplify related to the health of short-haul haul and short-haul operations. UPS compliance with this new short-haul drivers. However, one study specifically proposed that FMCSA permit an HOS provision, drivers to whom it addressed driver health issues and individual who drives less than 25 applies will not be able to use the short-haul drivers. This study identified hours per week and 5.5 hours per day, sleeper berth exception or the current the occupational stress that short-haul and whose driving is primarily local, to 100 air-mile radius short-haul drivers encounter on a daily basis. Orris extend the 14-hour duty-period by the exemption. et al. administered a questionnaire to amount of time taken in breaks and Short-haul drivers are unique to the 317 short-haul drivers who worked out other off-duty time, and to combine split motor carrier industry in that they do of distribution centers in New Jersey, periods of off-duty time for the purpose not drive for long periods of time. The Wisconsin, Texas, and California [Orris, of acquiring the ten hours of off-duty nature of short-haul operations P., et al. (1997)]. Each participant was time necessary to return to duty. UPS (repeated pickups and deliveries) and given a packet that included six self- also proposed that the 100 air-mile vehicles (too small for operations that administered questionnaires related to radius rule allow a driver to return to require long driving stints) make driving occupational stress. The results his or her work reporting location long hours logistically and economically indicated that short-haul drivers had a within 14 consecutive hours, instead of unfeasible and unnecessary. Hanowski significant elevation of stress-related the 12 hours currently specified. [Hanowski, R.J., et. al (1998), p.5] found symptoms over the general adult Other trucking companies also that only 50 percent of a short-haul population. Further analyses indicated expressed concern with the short-haul driver’s time is actually spent driving, that one reason for the stress was that provisions. One small carrier urged and that time was scattered throughout drivers believed that their workload was FMCSA to retain the exemption that the day. However, these operations do unreasonable, and that they were faced allows an additional 2 hours of duty experience occasional extended days with rigid deadlines. time once per week. Another supported during peak times of the year where the Another study [Hanowski, R. J., et al. the exemption and suggested a necessity to extend their work day by 2 (1998)] conducted focus groups with 82 traditional time clock formula for hours is needed. experienced short-haul drivers to tracing duty time by requiring the Due to the variety of tasks short-haul identify safety problems in the short- drivers to ‘‘punch in and out.’’ drivers conduct throughout the day, haul industry. The two top concerns traditional ‘‘time-on-task’’ models do most often mentioned by short-haul FMCSA Response not apply. However, through the drivers were the problems caused by The research and data reviewed by Agency’s literature search both drivers of light non-commercial vehicles the Agency demonstrate that fatigue has laboratory and field research studies and stress due to time pressure [Id., p. relatively little impact on short-haul were found that support the ability to 70]. As identified in the comments to trucking. The comments also strongly work a 16-hour shift without significant the docket, occupational stress due to support that conclusion. Because the degradation of performance. A rigid time pressure and not having benefits of HOS regulations for those laboratory study of sleep restriction and enough time in the day to get the job operations are quite disproportionate to sleep deprivation found the critical done was mentioned as a safety their costs, FMCSA has decided to limit to wakefulness when performance problem. create a new regulatory regime for a begins to lapse was statistically The short-haul provision in this final more specific subset of short-haul estimated to be about 16 hours [Van rule does not increase the maximum operations. Dongen, H.P.A, et al. (2003), p. 123]. In permissible weekly work hours (the 60 Under the rule adopted today, drivers a study of drivers in New Zealand, and 70-hour rules are still applicable to of CMVs that do not require a CDL to researchers found that drivers could short-haul drivers) or daily driving time operate will be allowed to extend their maintain their performance until about (the 11-hour driving limit per day)
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50034 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
allowed in today’s final rule. However, a recognized and logical break point. them ideal for transporting large loads the provision does provide short-haul Vehicles with a weight of less than point-to-point, but not for local delivery. operations greater flexibility in 26,001 pounds have long been The combination of more driving time scheduling, especially during periods of acknowledged by law enforcement, the and greater mass makes these vehicles peak demand. For 2 days per week, International Registration Plan (IRP) potentially more dangerous than smaller short-haul drivers will be allowed 2 requirements, truck manufacturers, and trucks. FMCSA has therefore concluded additional hours during which they can Congress as a distinct vehicle class. In that the new HOS regime should be drive, although their total maximum most cases, the size of a vehicle limited to operators of lighter truck (i.e., daily driving time remains the same. determines the class of driver’s license those not requiring the driver to hold a The Agency believes this will reduce needed to operate it. Only when a CDL). the occupational stress short-haul vehicle carries a placardable amount of When reviewing the activities of CMV drivers feel when trying to make too hazardous materials do the size and drivers, the Agency found that drivers of many deliveries in a limited time. weight of the vehicle not make a light vehicles spend less time driving FMCSA has concluded that this short- difference. The IRP is a commercial and more time completing other non- haul provision will not adversely affect vehicle registration system entered into driving tasks, such as those referenced the health of short-haul drivers. by the individual states of the United earlier. The economics of this concept Short-haul drivers do experience States (excluding Alaska and Hawaii), are fairly straightforward: The greater fatigue, however, and in a field study it the District of Columbia, and various the cargo capacity of the vehicle, the was found that these drivers take 1-to 2- provinces of Canada that allows one IRP greater the benefit of operating it longer hour naps to reduce any fatigue accrued member to process commercial vehicle distances and for longer hours. during the course of a normal work day. registrations and collect fees for other Conversely, the less cargo capacity, the The study showed that these naps are members. The IRP uses 26,000 pounds less economic sense it makes to operate taken while drivers wait for their as its weight threshold, demonstrating the vehicle over longer distances, or for vehicle to be loaded or unloaded or that States consider this weight a non- longer hours. Thus, drivers in during normal meal breaks [Balkin, T., arbitrary divide between vehicles likely operations that use lighter vehicles are et al. (2000), p. 4–63]. These naps are in to be operated in interstate commerce less likely to spend time driving. addition to the routine breaks these over long distances and those that Operationally, the lighter vehicles tend drivers utilize through the course of operate locally. The IRP ‘‘apportioned’’ to be smaller and more maneuverable, their day. FMCSA has concluded that license plate will also help alert law making them ideal for local pick up and the unique characteristics of their enforcement officers to vehicles that are delivery operations in localized settings. operations enable short-haul drivers to most probably over 26,000 pounds, thus The drivers spend most of their time in maintain the alertness and vigilance identifying drivers not eligible for this and out of the vehicle, serving their needed to drive up to the 16th hour after new regulatory regime. In addition, customers and doing ancillary duties, coming on duty twice a week, a regardless of license plate, law such as stocking shelves and checking conclusion supported by the fact that enforcement officers are trained under inventories. This analysis is supported by data in short-haul drivers are involved in fewer 49 CFR 383.91 to recognize vehicles the U.S. Census Bureau’s 2002 Vehicle crashes per vehicle miles traveled than under 26,001 pounds by their Inventory and Use Survey (VIUS) which long-haul drivers. appearance. The classification system Vehicles that require the driver to shows that about 90 percent of all trucks used by truck manufacturers and the have a CDL are defined as any ‘‘motor weighing 26,000 pounds or less operate National Highway Traffic Safety vehicle or combination of motor within a 150-mile radius. VIUS also Administration has long specified vehicles used in commerce to transport shows that trucks with a GVWR of less passengers or property if the motor 26,000 pounds as the upper limit for a than 26,001 pounds with a primary vehicle (a) Has a gross combination Class 6 truck [49 CFR 565.5, Table III]. range of operation within 150 miles weight rating of 11,794 kilograms or Congress itself recognized the limited comprise about 46 percent of all trucks more (26,001 pounds or more) inclusive operational role of lighter vehicles by operated in the United States. Only a of a towed unit(s) with a gross vehicle requiring a CDL only for drivers of Class small portion of these vehicles require weight rating of more than 4,536 7 and 8 trucks starting at 26,001 pounds the driver to possess a CDL. kilograms (10,000 pounds); or (b) Has a GVWR (and certain passenger and Trucks Involved in Fatal Accidents gross vehicle weight rating of 11,794 or hazmat vehicles). (TIFA) data from the years 1994 to 2002 more kilograms (26,001 pounds or Groups such as the NRMCA, NSSGA, (excluding 2001) show that about 12.7 more); or (c) Is designed to transport 16 and the CRMCA represent short-haul percent of all CMVs involved in fatigue- or more passengers, including the motor carriers, but virtually all of their related crashes weighed less than 26,001 driver; or (d) Is of any size and is used operations involve CMVs that weigh pounds. Additionally, TIFA data in the transportation of hazardous more than 26,000 pounds. FMCSA has indicate that CMVs weighing less than materials as defined in this section’’ [49 decided not to extend the new regime to 26,001 pounds and engaged in trips of CFR 383.5]. Drivers of vehicles all short-haul carriers, but only those 150 miles or less account for only 6.8 transporting placardable quantities of using smaller (i.e. under 26,001 lbs) percent of all large trucks involved in hazardous materials will not be able to vehicles. Many short-haul operators use fatigue-related fatal crashes between use this new rule because they are van or tank trailers indistinguishable 1994 and 2002. Conversely, these required to have a CDL, regardless of the from those employed in long-haul vehicles represent 52 percent of all large weight of the vehicle. However, the new trucking, for example, to re-supply trucks registered in 2002, according to regulatory regime is applicable to supermarkets or gas stations. While the U.S. Census Bureau’s Vehicle drivers who possess a CDL, but drive a ready-mixed concrete trucks are not Inventory and Use Survey. vehicle that does not require a CDL to used in long-haul operations, they do A study of Short-Haul Trucks and operate. require a CDL to operate. Vehicles that Driver Fatigue by Dawn Massie and her By limiting the applicability of this require a CDL are likely to be driven colleagues found that short-haul trucks short-haul rule to operators of vehicles more than smaller vehicles that do not, (which they defined as Class 3–6 not requiring a CDL, the Agency is using simply because their capacity makes straight trucks, i.e. 10,001 to 26,001
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50035
pounds) have a very low fatal- on the ‘‘combined or net effects’’ of the advocates nor industry supported involvement rate compared to other various regulatory provisions in the replacing the 2003 provisions with a trucks [Massie, D.L., et al. (1997), pp. 2003 rule on driver health, the safe new paradigm in the 2005 rule. A 20–21]. As FMCSA pointed out in the operation of CMVs, and economic significant body of research supports 2000 HOS NRPM, the Massie study factors. The Agency also asked about retaining the major provisions of the concluded that ‘‘[l]ocal single-unit ‘‘mutual interactions’’ of the various rule, modified by the changes discussed straight trucks had an average of 0.0022 provisions. Consequently, commenters earlier. fatigue-related fatal involvements per discussed the combined effects and Comments 1,000 registered trucks. The comparable interactions of the provisions on health figure for long-haul tractor-trailers was and safety. In addition, they discussed Health. Different perspectives were 0.0781, approximately 35 times higher. both how health and safety are related provided by commenters regarding the On a per-mile basis, long-haul trucks to each other separately and when health risks of the 2003 rule, though all were almost 20 times more likely to be considered with various provisions. were described as cumulative, versus involved in a fatigue-related crash.’’ [65 Combined effects for purposes of this interactive. ATA stated that potential FR 25540, at 25546]. discussion are distinguished as follows: driver exposure to diesel exhaust There are some possible reasons for (1) A cumulative effect refers to the net emissions have decreased substantially these lower fatigue-related crash rates. impacts of various provisions; and (2) over the last several years and such Drivers in short-haul and local interactions refer to how changes to one decreases will likely continue. In operations spend relatively little time or more provisions impact one or more addition, these potential DE hazards are actually driving the vehicle. The drivers other provisions. now within levels established by EPA in the study by Hanowski [Hanowski, and OSHA. ATA also stated that the R.J., et al. (2000), p. 77] reported an Comments 2003 rule provides a sufficient sleep average shift time of 10.89 hours but Paradigm Shift Needed? Circadian opportunity to mitigate the potentially only averaged 92 miles of driving per Technologies stated that the complexity adverse health outcomes from sleep shift. The drivers primarily worked 5 of the issues requires consideration of a debt. days per week. In fact, of the 462 shifts new, flexible paradigm. A summary of Others disagreed with this examined by Hanowski, there were only their comments follows: The 2003 rule assessment, based on substantive and two instances where a driver worked on focuses on effects of the number of procedural issues. Regarding their a Saturday and both of those shifts were hours allocated to the existing substantive concerns, Public Citizen less than 8 hours long. Hanowski found provisions after beginning a work week, requested that FMCSA address diesel that about 61 percent of drivers’ time but does not acknowledge that alertness, emission-related health risks by was spent completing tasks other than safe performance, and health of a driver significantly decreasing both daily and driving—35 percent on loading/ depend far more on how sleep-deprived weekly driving hours. NIOSH unloading and 26 percent on other a driver is than how many hours he or commented that there are potential assignments (vehicle inspections, she has been on duty or driving. long-term health effects associated with merchandising, etc.). Continuous wakefulness (which can be repeated periods of extended duty, In addition to reduced driving time, longer than duty-tour time), sleep length especially given that the 2003 reports suggest that light to moderate and quality, and sleep obtained over the regulations permit up to 84 duty hours physical activity during the workday prior week are highly relevant to fatigue. per 7 days, or double the duty hours of lessens a driver’s physiological fatigue. According to Circadian Technologies, the average U.S. worker. They also For example, Mackie and Miller stated the 2003 rule may unintentionally noted that long-term exposure to that ‘‘light work stress did not lead to require drivers to rest when sleep is extended work hours and driving in any cumulative fatigue’’ and there were difficult to obtain, compress their sleep particular may have health ‘‘[n]o significant differences in when it is most needed, and discourage consequences, including raised risks of subjective fatigue between drivers who them from interrupting their duty time myocardial infarction and back injury. engaged in light versus moderate cargo to take brief naps. This may result in Alertness Solutions agreed that driver loading’’ [Mackie, R.R., & Miller, J.C. high levels of chronic and acute sleep health factors related to fatigue, such as (1978), p. X]. Hanowski found that deprivation. The complex interaction total and partial sleep loss, extended drivers classified as not fatigued spent between sleep science and trucking wakefulness, and circadian disruption, over an hour more time loading and operations defies a one-size-fits-all rule have been associated with degraded unloading the vehicle. The explanation, that is understandable by drivers and physiological and health outcomes. he and his colleagues concluded, ‘‘is enforceable by regulators. However, Alertness Solutions pointed out that the studies generally have that the physical loading/unloading FMCSA Response helps drivers avoid fatigue’’ [Hanowski, shown that total sleep loss or sleep R.J., et al. (2000), p.112]. In drafting this final rule, the Agency restriction to 4 hours for 6 consecutive For all of these reasons, in the balanced the potential safety and health nights is required to trigger these Agency’s best judgment, a new HOS impacts, and costs, while considering associations. regime for a specific subset of short-haul compliance and enforcement issues. In Of the several points AHAS made on operations is warranted. However, the 2000 NPRM, FMCSA attempted to health impacts, two are summarized as FMCSA will closely monitor fatigue tailor the rule to specific industry follows: first, the rule does not address data, particularly fatigue-related crash sectors and their unique operating the health impact of potentially data for this group of carrier operations, environments to avoid a blanket increasing duty tours by 40 percent and and will look at further fatigue-related approach. This tailored approach, driving hours by 30 percent, or allowing research on short-haul operations. however, was firmly rejected by a drivers to alternate between 11 hours of substantial majority of industry as driving and 10 hours of off-duty time; J.11. Combined Effects unduly complex. Circadian and second, sleep debt from long or Commenters provided a variety of Technologies was the sole commenter irregular shifts is strongly associated responses to the Agency’s NPRM suggesting a paradigm shift was needed, with major changes in metabolic and request to provide studies or other data and neither the public interest endocrine function.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50036 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
AHAS maintained that there was not exacerbates that risk, compared to the successive nights of sleep are needed for an independent review of health effects pre-2003 rule. recovery, he contradicts this in his by FMCSA prior to issuing the 2003 From a process perspective, in comment submitted to the docket via rule. Also, they stated that the Agency preparing the final rule FMCSA Alertness Solutions by arguing that two cited but failed to apply health study extensively researched both health and 8-hour periods are adequate. findings previously cited in its 2000 fatigue studies through consultation On the other hand, numerous carriers NPRM and 2003 final rule. with an inter-agency group of Federal raised the point that over the 2003–2004 safety and health experts. First, the year crash frequency declined, resulting FMCSA Response Agency reviewed numerous studies, in a marked safety improvement. The It appears that chronic exposure to DE which included those findings National Private Truck Council (NPTC) may cause cancer. The exposure/dose previously cited in its 2000 NPRM and was one of many industry required, however, is currently 2003 final rule. Second, as discussed in representatives which acknowledged unknown, due to the extreme difficulty detail in section D, we tasked nationally that, while it is hard to definitively link in measuring and modeling exposure. known health and fatigue experts these safety improvements to the hours- For instance, EPA has noted that there associated with the National Academies’ of-service rules, the rule was in many is great ‘‘uncertainty regarding whether Transportation Research Board (TRB) cases the ‘‘only variable’’ that changed the health hazards identified from with conducting a thorough literature over that year. This data, according to previous studies using emissions from review of studies relevant to this these commenters, refutes arguments older engines can be applied to present- rulemaking. Specifically, this review made by others about the negative day environmental emissions and included research findings that impact of the 2003 rule. Several related exposures, as some physical and discussed in a scientific, experimental, commenters, such as FedEx Ground, chemical characteristics of the qualitative, and quantitative way the noted that such safety improvements emissions from certain sources have relationship between the hours a person were notable in light of an overall changed over time. Available data are works and drives, the structure of the increase in vehicle miles traveled. The not sufficient to provide definitive work schedule (on-duty/off-duty cycles, Motor Freight Carriers Association answers to this question because time-on-task, especially time in stated that the cumulative effect of the changes in DE composition over time continuous driving, sleep time, etc.), various provisions resulted in positive cannot be confidently quantified, and and the impact on the health and fatigue safety benefits. The National Industrial the relationship between the DE of a commercial motor vehicle driver. Transportation League (NITL) stated components and the mode(s) of action As a result of the questions raised in that the provisions in the 2003 rule for DE toxicity is unclear’’ [Ris, C. the NPRM, commenters cited over 200 combined to significantly ameliorate (2003), p. 35]. EPA’s combined actions studies to the HOS docket concerning chronic fatigue. The American Moving of tightening the standards for DE and health and fatigue. Of these, the TRB and Storage Association (AMSA) cited fuel standards lead to a projection of team utilized the screening criteria from data they collected to support the safety dramatically lower DE through 2030. the original research stage and selected benefits of the new rule, which stem Based on these projections, the health key studies to review and summarize for from a more natural circadian routine effects linked to DE should be reduced this health and safety evaluation. and additional rest time. over time. Fatigue: Interactions/Offset. Several Comments The Agency has two responses commenters raised concerns about how regarding the health impacts of longer Fatigue: Cumulative effects. Several the various provisions interacted or hours permissible under the new commenters raised concerns about the offset each other. Some disagreed with regulations. First, based on research perceived negative cumulative effects of how the various provisions were conducted by FMCSA, including the 2003 rule. Also, based on interviews allocated quantitatively (e.g., hours of literature reviews performed by the of long distance drivers in two States, driving time) and argued that their National Academies (see process the Insurance Institute for Highway interaction resulted in reduced safety. discussion in next paragraph), there is a Safety (IIHS) found that drivers are For instance, AHAS stated that even lack of knowledge on, and great deal of driving more hours and that fatigued assuming the benefits of increasing off- uncertainty about, whether the potential driving is at least as common as it was duty time by two hours under the 2003 long hours alone adversely affect driver previously. IIHS, Public Citizen, and rule, the dramatic increase in weekly health. Second, even if there is a AHAS voiced concern about the driving hours permitted by the 34-hour potential for impacts from longer hours potential for increased fatigue based on recovery period ensures that drivers will for drivers, despite the uncertainties of the increase in driving of both daily and be more, not less fatigued and be more detection and modeling described weekly hours. IIHS also emphasized exposed to risk. Similarly, Public above, based on FMCSA’s driver survey, that the impact is due to the fact that up Citizen noted that even assuming data from Campbell and Belzer (2000), to 42 percent of drivers in one interview positive benefits of the decreased tour of and data submitted by carriers, said they drove 10 or more hours a day duty provision under the 2003 rule, the including Schneider National and and used the recovery provision. AHAS increased driving allowed may FedEx, there is no evidence that drivers criticized Alertness Solutions’ paper negatively offset such benefits. They have drastically increased their hours of submitted to the docket as an attempt to also said that crash risk may increase as driving or work. Therefore, there is no cast doubt on relevant studies while a result. The AFL–CIO maintains that evidence drivers will be subject to ignoring a significant amount of key the cumulative fatiguing effects of an deleterious health effects [under 49 literature supplied both by AHAS and extra hour of driving each day and the U.S.C. 31136(a)(4)] resulting from their FMCSA showing that the rule’s 34-hour recovery provision negate the exposure to DE based on changes to the provisions in combination lead to positive aspects of establishing a 24- rule published today. In conclusion, increased fatigue, lower performance, hour clock. regarding DE exposure and health and a higher risk of crashes. AHAS Many commenters supported the impacts, FMCSA believes that while DE further asserted that while Rosekind of safety benefits resulting from the probably entails some risk to drivers, Alertness Solutions agrees with FMCSA interactions of the provisions. For today’s HOS rule neither causes nor in his earlier literature that two example, ATA supported the Agency’s
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50037
conclusion that it could permit a 1-hour characterized by commenters as off-duty period starts during a time of increase in driving time from 10 to 11 beneficial, though some concerns were day when it is difficult from a circadian hours because it had mandated an raised. The two main issues were: First, standpoint to sleep. Public Citizen overall reduced tour of duty. Also, the composition of the 24-hour cycle noted that, based on FHWA’s 1996 while the length of duty tour needs to through the combination of the 10-hour study, the strongest and most consistent be limited based on research concerning off-duty period with the 14-hour driving factor influencing driver fatigue and continuous wakefulness, little is known window; and, second, the impact of alertness was time of day; drowsiness about the impacts of driving time. backward rotating schedules. First, was markedly greater during night According to C.R. England, the according to ATA, the 14 consecutive driving than during daytime driving. interaction of the current provisions hour on-duty limit, coupled with 10- They also noted that while the Agency provides good balance by allowing hours off-duty requirement, is a has suggested that the 14-hour duty additional driving time (11 hours) with synergistic safety feature of the new rule tour/10-hour off-duty provisions more rest opportunity (10 hours) and a resulting in a consistent 24-hour work- combine to establish a 24-hour 34-hour recovery period to recover from rest cycle. Tennessee Commercial schedule, the one hour reduction in any cumulative fatigue that may occur. Warehouse noted that for long-haul duty tour is not relevant to the number They also pointed out that the 10-hour drivers, the 14 consecutive hour shift, of driving hours because drivers will off-duty provision eliminates daily coupled with the 11 hours of driving, utilize the maximum driving hours to fatigue while the two 8-hour sleep has allowed them to maintain their enhance their wages and meet periods in the 34-hour recovery income level and establish a 24-hour deadlines. On the other hand, drivers provision provide an adequate cycle; consequently, drivers take their will tend to minimize clocking on-duty opportunity for full recovery. Schneider off-duty break about the same time hours, because they do not typically get National Inc. agreed that the 10-hour every day. Second, according to paid on that basis. To address these off-duty provision eliminates daily Circadian Technologies, by extending perceived shortcomings, Public Citizen fatigue, while the 34-hour recovery both the number of hours of off-duty suggested that drivers on long shifts be provision eliminates cumulative fatigue time required per day (from 8 to 10), required to use the remaining on-duty on a weekly basis. They also noted that and the number of hours of driving hours available after they finish driving the 10-hour off-duty period supports allowed (from 10 to 11), the new rule or add on the remaining hours to their both the 11 hours of driving and 34- extends the minimum day-night cycle off-duty period. This would ensure that hour recovery provisions. Fresenius from 18 hours to 21 hours, assuming drivers remain on a true 24-hour Medical Care stated that under the 2003 drivers drive the maximum allowable schedule. rules, the driver usually has adequate (and have no on-duty not-driving time). time to commute and attend to personal This reduces the likelihood of drivers Fatigue: Breaks. According to ATA, matters, while still obtaining 8 falling into backward rotating schedules the benefit of having a work limit within consecutive hours of sleep. FedEx that can impact health and fatigue. a duty period is that it creates other time Freight argued, regarding the 11th While such schedules are still within which breaks can be taken; such (added) hour of driving provided by the permissible under the rule being breaks can have a beneficial effect on 2003 rule, that ‘‘statistically’’ no crashes adopted today, the added off-duty hours fatigue. Other commenters, including happened after the 10th hour of driving; help reduce the severity of the rotation. Circadian Technologies and several therefore, no offsetting adjustments in ATA’s comment on this topic typified drivers, argued that, despite the positive other provisions are needed. Based on other associations, suggesting that even benefits of attempting to achieve a 24- International Paper’s experience with if a driver maximizes driving time with hour cycle, the 14-hour on-duty cycle the rule, the majority of drivers do not little additional duty time and takes the has the negative effect of discouraging have the opportunity to drive a full 11 minimum 10 hours off-duty, this 21–22 rest breaks, which may include hours, given the impact of the maximum hour cycle comes closer to a 24-hour beneficial naps. ‘‘on-duty’’ of 14 hours, and any reversal circadian cycle than the 18-to 19-hour Fatigue: Quality of Life Impacts. of this would not achieve the desired cycle possible under the pre-2003 rule. FMCSA asked whether drivers were increase in safety. Among those raising concerns about obtaining more rest under the 2003 rule Fatigue: 24-hour Cycle. The the 24-hour cycle, Circadian and whether the quality of their lives interactions resulting in a movement Technologies maintained that a 24-hour had improved. The results are shown towards a 24-hour clock were clock does not help a driver whose first below in Figure 10. FIGURE 10.—COMMENTS ON REST AND QUALITY OF LIFE UNDER 2003 RULE
Carriers Drivers Other*
More Rest: Yes ...... 29 114 5 No ...... 4 46 2 Quality of life: Better ...... 18 70 2 No Change ...... 1 16 1 Worse ...... 3 34 1 * Includes comments from trucking associations.
Commenters mentioned that the rule’s owner-operators who stated that they do duty-tour ‘‘clock.’’ Drivers also thought off-duty time provided the opportunity not get more rest, some criticized the 14- that off-duty/sleeper-berth time was too not only for sleep, but also for relaxation consecutive-hour provision because long, and waiting for the time to end and personal tasks. Of the drivers and naps and rest periods do not stop the was very tiring. Other drivers said that
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50038 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
the rule caused them to waste more time Today’s rule can be summarized in could be on a rotating schedule, or off and to drive in worse conditions. six points: (1) Adopts 11 hours of daily a natural circadian rhythm. The commenters who said the quality driving time as the maximum allowed Third, the Agency concluded that an of their lives had improved under the following a 10-hour off-duty period; (2) 11-hour driving time provision rule credited the reduced or regulated adopts a 14-hour duty tour ‘‘driving combined with a 14-hour non- workday that allowed them to have window;’’ (3) eliminates the split extendable driving window provide a more time at home and for leisure sleeper berth exception traditionally greater opportunity for daily sleep activities. They also mentioned an allowed by requiring 8 hours of compared to the pre-2003 rule, which improved relationship with carriers, consecutive anchor sleep and an allowed for a 15-hour extendable shippers, and receivers because the additional two hours of off-duty or driving window with only 8 hours off companies recognize that the rule limits sleeper-berth time; (4) requires a 10- duty. The available research and crash the time a driver can be on duty. Those hour off-duty period; (5) allows a 34- data do not clearly indicate whether the who reported no change or a worse hour recovery provision; and (6) 11th hour of driving, combined with quality of life cited the 14-hour rule and provides that short-haul drivers of other provisions of the 2003 rule, poses the requirement for a 10-hour off-duty vehicles not requiring a CDL who a significant safety risk to drivers. Since period when away from home. operate within a 150-mile radius of their industry and Agency data show that the Two commenters thought their normal work reporting location may 11th hour is not fully utilized, any quality of life was better in some ways drive 11 hours within a 16-hour work safety risk to drivers is lower than the and worse in others because of the rule. shift 2 days in any period of 7 possible worst case scenarios, which One commenter noted that there was consecutive days, while, among other assume full use of all allowable driving confusion about the rule’s provisions, provisions (further described in Section hours, would suggest. In sum, it is the e.g., some drivers think they are J.10 on short-haul operations) requiring Agency’s best judgment that the potential safety benefits to eliminating required to sleep for 10 hours. Two compliance with the same provisions the additional one hour of driving are carriers had surveyed their drivers. applicable to other drivers (described in not great enough to justify the high cost Landstar Systems found that 73 percent this paragraph above) for the other 5 of such a change. As noted above, the of the drivers thought their personal days. 10-hour off-duty period ensures that all lives had not changed and 44 percent The Agency’s seven fatigue-related drivers, including those utilizing a said they were home less often under rationales for the rule being adopted sleeper berth, have an opportunity to the rule. J.B. Hunt found that 38 percent today, based on extensive research into obtain an uninterrupted block of 8 of the drivers saw no effect on their these provisions and how they are consecutive hours so that fatigue is personal lives and only 15.8 percent related, follow. eliminated, or significantly reduced, on First, compared to pre-2003, the thought their personal lives had a daily basis. Adopting a 10-hour off- Agency is adopting a shorter and stricter improved under the rule. duty period is supported by NTSB’s Fatigue: Regulatory Impact Analysis. duty tour ‘‘window’’ to prevent drivers 1996 report finding that the most critical Public Citizen noted that FMCSA failed from drastically extending their day factors in predicting fatigue were the to demonstrate how the extra off-duty through the use of breaks. Adopting this duration of the most recent sleep period time enhances a driver’s ability to drive provision is justified because prior to the crash, length of time since an additional hour. Public Citizen also continuous daily wakefulness is among last sleep period, sleep over the stated that while the Agency claimed the strongest predictors of fatigue, and preceding 24 hours, and split-sleep the rule produced substantial net safety the Agency’s best judgment indicates it patterns. The Agency recognizes that benefits, the RIA did not take time-on- outweighs driving time as a predictor of drivers, beyond sleep, have other needs task into account. In addition, the fatigue. Therefore, FMCSA is requiring to attend to, including commuting, notion that time-on-task effects are zero this provision to reduce driver fatigue performing errands, and addressing is implausible. If driver fatigue rises by ensuring that the provision extending other personal and family matters. The with additional consecutive driving the work day is eliminated. extra 2 hours beyond those needed for hours and drivers are fatigued after 8 Second, the Agency modified the sleep ensures a driver can complete hours, they will be more tired after 11 2003 sleeper berth provision to ensure such tasks. The interaction between compared to 9 or 10 hours; if they are all drivers have the daily opportunity to these provisions enables the vast fatigued after working 60–70 hours in 7 obtain 8 hours of consecutive rest and majority of drivers to work and drive to or 8 days, they will be even more so a total of 10 hours off-duty. Specifically, the maximum permissible limits per day after working 84–98 hours in the same the split sleeper berth provision has (even if they chose not to do so), periods. been eliminated and each driver using without developing a cumulative sleep a sleeper berth must obtain a primary FMCSA Response debt. period of 8 consecutive hours of off- Fourth, the Agency considers the 34- Cumulative Effects, Interactions/ duty time in the berth. Such drivers hour recovery provision to be a safety offsets, Breaks, Quality of Life, and RIA. must also take an additional 2-hour off- net for the other provisions in the The Agency requested and received duty period that is in or outside of the exceptional case where a driver has not comments about both cumulative and sleeper berth, either consecutively with, obtained sufficient rest, despite 10 interaction impacts on fatigue, has or separately from, the primary 8-hour hours off duty (including for sleeper collected new data, and has thoroughly period. The 10-hour off-duty period will berth drivers) combined with a 14-hour reviewed the scientific evidence. enable drivers to combat daily fatigue, non-extendable driving window. Given FMCSA’s best judgment is that the rule provide opportunities to attend to that the Agency has reduced the driving finalized today provides the best personal matters, and obtain rest, window requirement by 1 or more possible regulation considering both the including naps. The ability for the hours, the negative effects of longer cumulative and interaction impacts on driver to take a nap later in the day is weekly driving hours has been fatigue. Our response to both types of an important benefit, especially addressed on a daily basis. The Agency effects are discussed together later in considering that drivers taking acknowledges that the recovery this section. advantage of the sleeper berth exception provision allows a driver to drive
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50039
additional weekly hours, but we believe non-extendable (14-hour) driving related physical activity. Both factors the 34-hour period affords sufficient window. lead to less accumulation of driving- time for 2 nights of 8-hour sleep for the Fifth, the Agency concluded that for related fatigue compared to long-haul vast majority of drivers and an 18-hour drivers who take their 10-hour off-duty drivers. In addition, the regularity of intervening period of wakefulness that period in tandem with the 14-hour typical short-haul drivers’ schedules in combination allow for weekly driving window (i.e., one after the differs from other drivers in that they recovery from any sleep debt other), these provisions collectively will sleep at home each night, have 5-day accumulated by a driver over multiple help keep them on a 24-hour cycle, schedules with limited weekend work, days. In addition, night drivers will thereby mitigating or eliminating the and usually are provided at least a 48- accumulate less fatigue on a daily or deleterious effects of the circadian de- hour recovery period over the weekend, weekly basis compared to the pre-2003 synchronization on driver sleep and consistently providing the opportunity rule through the combined effects of the alertness. There was near consensus for two 8-hour nights of sleep. provisions discussed in this section. For among commenters that the combined Based on the scientific literature night drivers, the two 8-hour sleep effects of these provisions reduce analyzed by FMCSA, and when periods give drivers an adequate fatigue, leading to positive safety considered with the combined effect of opportunity to help minimize acute and benefits. The Agency believes that the other provisions enacted by this rule, cumulative fatigue, regardless of their 2003 rule’s movement toward a 24-hour the Agency concludes that this driving schedule. However, worst-case cycle has helped to regularize drivers’ provision will not lead to negative scenarios presented by commenters (and schedules and thereby minimize fatigue. health or safety impacts. FMCSA FMCSA in the NPRM) regarding total FMCSA acknowledges that neither the believes this 16-hour provision is hours operators may drive under the 2003 rule nor today’s rule eliminates the justified under the continuous 2003 rule are not realistic nor supported possibility that drivers will utilize wakefulness literature discussed earlier by operational and safety data (see backward rotating schedules by which indicates that performance rationale seven below for detailed combining driving and off-duty time, declines and crash rates increase discussion). Another major benefit to while minimizing other on-duty not- beyond 16 hours of work. Although we adopting a recovery period is that it driving time (e.g., long-haul driver on have adopted a 14-hour driving window allows drivers to begin their work day two of a trip that requires no provision discussed above for other schedule at approximately the same additional loading). The change from an categories of drivers, we believe this 16- time each day as their last shift; hence, 18- to 21-hour cycle between the pre- hour provision is justified because (1) this will avoid shifting of daytime to 2003 and 2005 rule reduces the limiting the availability of this provision nighttime schedules that research shows likelihood and severity of drivers falling to two days per week will not negatively can disrupt the circadian rhythm by into backward rotating schedules that impact short-haul driver safety; (2) the promoting fatigue and potentially higher induce fatigue. enhanced opportunity for daily and crash risk. Also, because recovery can Sixth, the Agency is creating a new weekly recovery in this unique industry be taken at any time, it can be used regulatory regime for drivers of small, segment creates a reduced fatigue risk, when needed most by drivers to short-haul CMVs in today’s rule that especially since these short-haul maximize safety. allows them to drive within a 16-hour provisions, when combined with the The Agency considered adopting a 44- window twice a week. This industry other provisions of the 2005 rule, do not hour recovery period. The Agency has segment experiences less driving-related create a net increase in driving or duty concluded, however, there is no fatigue and poses a lower crash risk hours over multiple days; and (3) the conclusive scientific data available at compared to the long-haul trucking FMCSA Field Survey found that these this time to guide us in determining operations also covered by this rule. drivers take 1–2 hour naps to reduce which factor (recovery vs. circadian Today’s rule does not increase the any daily fatigue that may occur. disruption) is more predictive in maximum number of work hours (60- Since these drivers are typically on a alleviating fatigue. Hence, considering a and 70-hour rules are still applicable to fixed schedule, the Agency does not longer recovery period illustrates the short-haul drivers) or daily driving time believe that the provision allowing two profound complexity concerning this (11-hour driving limit per day) allowed 16-hour duty tours each week will be issue. small, short-haul CMVs. This provision used frequently, especially due to the The Agency has weighed the concerns is expected to be utilized intermittently disruption caused by the forward- with night driving and the benefits of and to provide flexibility to meet rotation of the schedule. The Agency night sleep; however, the fatigue risks of seasonal and peak demands without has found few studies discussing related restricting night driving are outweighed leading to longer driving or significantly health impacts; however, based on the by two counterproductive longer duty-tour times. Therefore, due 4 hours of additional duty tour per week consequences: safety problems from to the unique attributes of the short-haul and the unique schedule and recovery increasing daytime traffic, and the sector described below (and detailed in periods typical to this sector, the significant economic impact on the short-haul section, J.10) and given Agency concludes there will be no industry. For example, a 44-hour that the limited number of added hours deleterious impacts from this provision. recovery period would cause the severe do not create a net increase in driving Seventh, the agency concluded that traffic-related and economic impacts or duty hours over multiple days, this the worst-case driver fatigue and health described above (see Section J.8). After provision will not adversely impact scenarios suggested by commenters reviewing the combined effects of all the drivers’ health or safety. regarding the 2003 rule’s operational provisions compared to the pre-2003 Short-haul drivers have an impact are not realistic. Most drivers are rule, the Agency is adopting a 34-hour opportunity for daily and weekly fatigue taking longer recovery periods than the recovery provision because it acts as a recoveries that typically exceed those of minimum FMCSA is establishing under flexible, weekly safety net that will other trucking sectors. Short-haul this rule, indicating that drivers value benefit the vast majority of drivers who operators drive less than 40 percent of their rest and personal time and do not fail to obtain daily rest with two extra their total duty tour, and their driving always seek to maximize driving time. hours (10 hours) of daily off-duty time tasks are broken up by frequent Further, the average driver is not able to, (including sleeper-berth users), and a deliveries and light to moderate work- and realistically cannot, drive and work
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50040 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
the longer weekly hours by utilizing the hours while significantly curtailing off-duty rest, take 24 hours off, and recovery provision on a regular basis, as much needed weekly rest. begin work at the same time, thereby described by some commenters. Interactions/offset. The Owner following the circadian rhythm. Another reason to doubt the worst-case Operator Independent Drivers Others took issue with the Agency’s scenarios advanced by certain Association (OOIDA) stated that if there effort to move towards a 24-hour cycle. commenters is that there is no clear data is any negative impact of the use of the For example, Public Citizen challenged suggesting that fatigue-related crash 11th hour, it is more than compensated FMCSA’s statement regarding our effort risks have risen under the 2003 rule. In for by the aggregate benefits of a 24-hour at moving toward a 24-hour work cycle, fact, FARS data show some decrease in clock and an additional 2 hours daily providing drivers with sufficient time such crashes. Moreover, numerous rest per day. Furthermore, FMCSA off to obtain 8 hours sleep, while drivers reported that the 2003 rule’s off- should not narrowly analyze whether preserving flexibility for carriers in duty time provided the opportunity not the 1 or more hour reduction in on-duty meeting schedule demands. They only for sleep, but also for relaxation time offsets the increase in 1 hour of asserted that no studies cited by the and personal tasks. Consequently, their driving time. Instead, the Agency Agency suggest safety and driver health quality of life has been enhanced by the should compare all of the benefits of the will be improved by ‘‘moving toward’’ 2003 rule. Furthermore, even for drivers rule with any effects of the occasional requiring a 24-hour work cycle or that maximizing their driving time (11 hours use of the 11th hour of driving. a backward-rotating 21-hour schedule is of driving followed by 10 hours off Some parties discussed the health and any improvement over a backward- duty) the resulting 21-hour cycle is safety aspects of individual provisions. rotating 18-hour schedule. NIOSH concluded that the current data closer to the ideal 24-hour cycle than FMCSA Response the previous 18-hour ‘‘day’’ (10 hours of are not adequate to characterize any The following response addresses driving followed by 8 hours off duty). In acute health or safety consequences health and safety comments pertaining sum, comments and data by drivers and associated with the 14 hours of daily to interactions/offsets and the 24-hour industry representatives do not duty and 11 hours of driving under the cycle. In the 2005 NPRM, FMCSA asked substantiate the worst-case scenarios 2003 rule. In addition, it is not feasible for information on combined effects of advanced by commenters. to conduct an epidemiological investigation of short-term effects for the the provisions (driving time, duty time, In conclusion, the Agency believes 2003 rule. and recovery) on ‘‘driver health, the safe that the combined cumulative and Citing a portion of our NPRM, AHAS operation of CMVs, and economic interaction effects of the provisions stated that the Agency’s effort to analyze factors.’’ In the 2005 NPRM and in discussed above will result in less the combined effects of health and today’s rule, FMCSA treated health and fatigue for drivers and thereby greater safety issues that are ‘‘inextricably safety impacts independently pursuant safety for the drivers and the public linked’’ [70 FR 3343] ignores the court’s to the court’s request. Specifically, in compared to past hours-of-service request to treat health separately from the 2005 NPRM, in addition to asking requirements. fatigue and safety. how health and safety may be related, Comments 24-hour cycle. Several commenters we devote four sections and five supported the rule’s move toward a 24- separate questions to specific health Health and Safety. Several hour circadian sleep cycle to benefit concerns [70 FR 3344–3346]. AHAS commenters believe that the 2003 rule drivers’ safety and health. For instance, asserts that we do not treat health and has beneficial impacts for both the the National Industrial Transportation safety separately. The Court notes that health and safety of drivers. Regarding League (NITL) maintained that by while FMCSA must separately address health, a commenter cited a potential combining a 14-hour workday with the driver health from safety, this does not decrease in sick days. Carriers report 10-hour off-duty requirement, the HOS ‘‘suggest that the two factors are that drivers seem to be getting more rule moves drivers toward a 24-hour unrelated: Healthy drivers presumably sleep due to having two extra hours off- cycle that approximates the body’s cause fewer crashes and drivers who duty, giving them more time to relax natural circadian rhythm. The benefits have fewer crashes suffer fewer and rest, which is facilitated by the of the 24-hour cycle include reduced injuries.’’ AHAS seems to oversimplify establishment of a more routine stress and protection against other the combined effects of these provisions schedule. The routine sleep schedule deleterious health impacts from that the court acknowledged. leads to better quality of sleep. The abnormal sleep patterns. NITL also Based on the studies, data, and Distribution and LTL Carriers suggested that while a 21-hour day is comments, FMCSA believes those Association cited net benefits from unlikely because of the non-driving drivers who take 10 hours off-duty in having more time for rest, errands, and tasks, such as breaks and inspections, tandem with the 14-hour driving social matters, resulting in general that drivers must perform, it is superior window are more likely to maintain driver satisfaction, which ordinarily to an 18-hour day. OOIDA noted that their 24-hour cycle compared to drivers leads to a healthy driver. J.G. MacLellan the adoption of both the 14 consecutive utilizing the pre-2003 rule, thereby Concrete suggested that the health and on-duty hours and 10 consecutive off- increasing the probability that drivers safety of drivers is not impacted by the duty hours provisions has been helpful using today’s rule are alert. The rule we extra driving hours provided by the to some drivers in achieving a 24-hour are adopting today does not eliminate 2003 rule because most of their drivers schedule. OOIDA also noted that a 24- the possibility that drivers could utilize work on-site and are not utilizing such hour schedule is beneficial to a driver’s backward rotating schedules by driving hours. overall safety and health on all combining driving and off-duty time; Others characterized the cumulative performance measures. International however, the new rule is an health and safety impacts as negative. Paper noted the importance of the improvement for drivers’ circadian Specifically, Public Citizen made the circadian rhythms on a driver’s health, rhythm over the 18-hour ‘‘day’’ possible point that the recovery provision physical condition, and alertness. They under the pre-2003 rule. Specifically, adversely affects driver health and argued that such rhythms provide a today’s rule moves drivers from an 18- safety in two ways: It dramatically strong rationale for the 34-hour recovery to 21-hour driving time/off-duty cycle, increases both weekly driving and duty because a driver can take 10 hours of which is far closer to a 24-hour cycle
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50041
than the pre-2003 rule achieved, and because the D.C. Circuit vacated the ANPRM asked for comments and reduces the severity of a backward- 2003 rule, and the statute re-instating it information, both on technical questions rotating schedule. In addition, the provides that the rule shall expire no relating to EOBRs and about the combined effects of the various later than September 30, 2005. Under potential costs and benefits of such provisions, including adding 2 hours of Section 7(f) of the Surface devices. The Agency is actively daily off-duty time, utilizing a 14-hour Transportation Extension Act of 2004, collecting and analyzing data on the non-extendable driving window, and Part V, the 2003 rule is automatically costs and benefits of EOBR use to removing the split sleeper berth replaced when today’s rule becomes industry. Beyond cost issues, provision, allow for more rest to drivers effective. The Agency cannot retain, or developing rules or technical than was possible under the pre-2003 require compliance with, the 2003 rule specifications for EOBR devices is a rule. The Agency also concludes that for an interim period while motor highly complex endeavor. In addition, the health impacts between the 11 and carriers, drivers, and the enforcement such technology issues must be 10 hours of driving are inconsequential. community prepare to deal with the evaluated in the context of developing As noted above, FMCSA is adopting new requirements adopted today. and implementing effective new the duty-tour and off-duty provisions FMCSA recognizes that neither compliance and enforcement policies. first enacted in the 2003 rule. In the rule enforcement agencies nor the motor In short, the complexity of the technical adopted today, the Agency further carrier industry will be able to and policy issues involved in EOBRs bolsters CMV driver health and safety implement the new regulations warrants a separate rulemaking effort. by a new provision that eliminates the immediately upon the notice effective Therefore, comments on EOBRs are not use of the split sleeper berth time to date. Some States require legislative addressed in this rulemaking. However, ensure that all drivers have the action to conform their HOS statutes to the EOBR rulemaking will consider opportunity to obtain eight hours of this rule, though others adopt FMCSA’s alternative means to effect HOS consecutive sleep on a daily basis. safety regulations by reference. All compliance through that technology. While fatigue should be eliminated for States, however, will have to revise their FMCSA has provided copies of the most drivers on a daily basis, the enforcement manuals, re-program their EOBR-related public comments to the recovery provision is adopted as a computers, and retrain roadside ongoing EOBR rulemaking docket flexible safety net that will protect most enforcement personnel. Motor carriers (FMCSA–2004–18940). Any additional drivers when fatigue is not eliminated face a similar challenge to revise their comments on EOBRs should be on a daily basis. Moreover, despite internal compliance procedures and re- addressed to that docket. potential risks from DE, today’s rule train large numbers of drivers, neither causes or exacerbates those dispatchers, and other staff. Therefore, J.14. Other Provisions risks; therefore, the rule has no prior to the effective date of today’s final Exemption for Utility Service Vehicle deleterious effects on CMV driver rule, the Agency will issue a policy Drivers health. Based on the combined effects statement announcing its expectations Complete exemption from the HOS and interactions of provisions of today’s for compliance and enforcement during rule for operators of utility service rule, in the agency’s best judgment, the first several months after it takes vehicles (USVs) was suggested in a today’s rule enhances the health and effect. comment from The Edison Electric safety of CMV drivers. J.13. Electronic On-Board Recording Institute (EEI). Twenty-five other J.12. Effective and Implementation Devices commenters, including utility Dates Approximately 170 comments were companies, workers, and associations, Only one commenter, the Commercial submitted addressing EOBRs. Of these, supported EEI’s arguments. These Vehicle Safety Alliance (CVSA), 124 commenters expressed general comments noted that Congressional addressed the issue of when the opposition to the required use of committees have recognized a need for proposed HOS rule should become EOBRs, while 46 commenters favored special treatment of the utility industry effective. CVSA asked FMCSA to their use. Of the 122 drivers who in the HOS rules, and stated that a provide enough time for enforcement discussed EOBRs, 34 of them (28 number of State and local regulatory agencies and industry to make the percent) were in favor of a rule requiring and emergency response agencies appropriate changes required by any their use. Seven trucking and other support an exemption. Commenters change in the HOS rules. It stated that industry associations lined up against stated that, unlike other CMVs, USVs the 8-month implementation period an EOBR requirement, while two safety are driven only a fraction of the total allowed for the 2003 HOS rules was advocacy groups strongly supported time the vehicles are in use, so there is barely enough time. such a requirement. less potential for fatigue-related crashes. They typically are driven locally for a FMCSA Response FMCSA Response few hours a day or less, have low Today’s final rule is effective on FMCSA has published an ANPRM (69 mileage, do not transport freight, and October 1, 2005. The HOS rule adopted FR 53386, September 1, 2004) are used as mobile tools. These on April 28, 2003, became effective 30 requesting information about factors the commenters argued that the special days after publication, but drivers and Agency should consider in developing safety responsibilities and operating motor carriers were required to continue performance specifications for EOBRs. characteristics of the utility industry complying with the previous regulations As the Agency said in the preamble to had not been considered in the until January 4, 2004. That interval gave that document, ‘‘FMCSA is attempting rulemaking. They asserted that FMCSA industry and enforcement officials a to evaluate the suitability of EOBRs to had presented no evidence that substantial amount of time to revise demonstrate compliance with the including USVs in the rule would their HOS training materials, re-train enforcement of the hours-of-service improve highway safety. Nor, they said, personnel and, in some cases, reprogram regulations, which in turn will have would an exemption for USVs impinge computer equipment. major implications for the welfare of on the Agency’s goals of improving FMCSA cannot use a similar drivers and the safe operation of safety for the commercial driving implementation procedure for this rule commercial motor vehicles.’’ The industry. The American Gas Association
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50042 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
argued that in the past FMCSA had concrete by means of a chute on the (g) and (h) relating to HOS in the State failed to adequately consider utility front of the truck. NRMCA stated that of Alaska. Those sections have been industry arguments for exemption. front-discharge mixer drivers are an revised to clarify the text in a manner The Edison Electric Institute argued anomaly with respect to the current consistent with current Agency policy that crash rates were lower for USVs definition of driving time. Operators of and interpretation. than for CMVs in general, for CMVs rear-discharge mixers have to exit the operating within 100 air-miles of their truck to dispense concrete from the rear, J.15. Legal Issues point of origin, and for all large trucks. thus the time spent dispensing concrete Procedural Issues EEI said that FMCSA had not shown is classified as on-duty, not driving. A Seven commenters, including two that USVs operating during key element of the front-discharge labor unions, three trade associations, ‘‘emergencies’’ have a detrimental effect design is that the driver can remain in and two advocacy groups, expressed on safety. Seven commenters supported the driver’s seat to operate the mixer disapproval of the approach FMCSA those comments. Three were utility controls. During this time on the job had taken in the NPRM. The companies whose own experience site, the driver is at the controls of the Transportation Trades Department of showed a low or negligible number of CMV, meaning that this time must be the AFL–CIO asserted that the NPRM accidents caused by employee fatigue. classified as on-duty, driving, but the did little more than challenge outside The Commercial Vehicle Safety driver is in fact not actually driving. To Alliance opposed a broad exemption for groups to demonstrate that some other rectify this claimed misclassification of rule or combination of provisions would USVs. CVSA argued that emergency driving time, NRMCA recommended situations were generally already be less harmful than the vacated rule. that FMCSA alter the definition of The International Brotherhood of addressed by other rules, and driving time to be ‘‘all time spent at the concluded, based on MCMIS data ‘‘that Teamsters (IBT) argued that the controls of the CMV in operation on language of the NPRM indicated that the utility industry’s safety record is no public roadways’’ to more accurately better than the rest of the trucking FMCSA had no intention of complying capture ‘‘on-duty, driving’’ time versus with the Court of Appeal’s mandate to industry that is subject to the hours-of- ‘‘on-duty, not driving’’ time. service rules. In fact, one could argue revise the HOS rule, and was instead that based on this data the utility FMCSA Response seeking to shift the burden of proof to industry is overrepresented in fatalities Because this issue was not raised for the opponents of the rule. IBT asserted compared to other segments of the comment in the NPRM, the Agency that the NPRM invited opponents, by industry.’’ lacks the information to evaluate the submitting additional scientific information, to demonstrate that the FMCSA Response implications of the NRMCA proposal. In this rulemaking, FMCSA will take no rule did not adequately comply with the FMCSA previously addressed action on this issue. statutory requirements. Instead, to exemption requests from utility FMCSA may consider these topics for comply with the court’s decision companies, and has considered the future rulemaking as appropriate. FMCSA should have reexamined the issue again in this rulemaking. The scientific data already in the docket and Agency continues to believe that Outside Jurisdiction of Agency addressed directly the documented existing exemptions applicable to USVs Several topics addressed by health effects of chronic sleep provide a proper balance between commenters are not within the statutory deprivation, such as increased operational needs and public safety. The authority of FMCSA. The Agency has no sensitivity to insulin, and increased risk regulations at 49 CFR 390.23 already jurisdiction over any shippers and of heart disease, hypertension, and provide an HOS exemption for USVs receivers, except to enforce certain obesity. In particular, FMCSA should operating in local or regional hazardous materials regulations adopted not have published the NPRM before the emergencies. Some commenters noted from its sister DOT Agency, the Pipeline literature review being conducted by the that the types of ‘‘emergencies’’ cited by and Hazardous Materials Safety Transportation Research Board was the utilities (e.g., downed power lines) Administration, formerly the Research completed and incorporated into the occur frequently. The Agency believes and Special Programs Administration. rulemaking. USV operators should, therefore, be able FMCSA also has no authority to regulate The National Association of to adjust the work schedules of their a driver’s pay or other compensation. Wholesalers and Distributors argued employees to ensure that drivers who The Agency has acknowledged potential that the content of the NPRM failed to have not reached their maximum limits problems involving shortages of truck shed any light on the thinking of under Part 395 are available when parking space, and has worked with FMCSA, and that this was a misuse of needed to handle these recurrent other agencies and organizations to the regulatory process. The American ‘‘emergencies.’’ As for the relative safety address the issue. However, FMCSA has Bakers Association also strongly of utility operations, compiled crash no authority over any public or private objected to the regulatory approach data for this group of drivers is not property used for parking. Because followed in the NPRM, which it extensive enough to be conclusive. FMCSA does have jurisdiction over a characterized as an attempt to thrust CMV driver, the Agency may prohibit or onto the regulated community the Outside Scope of Rulemaking limit the driver from parking the vehicle Agency’s responsibility to justify the Some comments to the docket in certain situations, but the Agency regulatory initiative through extensive discussed a variety of topics outside the cannot require anyone to allow parking. and detailed scientific and technical scope of this rulemaking. For example, data. the National Ready Mixed Concrete Alaska HOS Two advocacy groups, Public Citizen Association (NRMCA) sought a change Although not mentioned by and Advocates for Highway and Auto in the Part 395 definition of ‘‘driving commenters to this docket, FMCSA is Safety (AHAS), strongly disapproved of time.’’ It stated that about 23 percent of aware that technical amendments the approach followed in the NPRM on the truck fleet in the ready-mixed (which do not require advance public a number of grounds. First, according to concrete industry is composed of front- notice and comment) are needed to Public Citizen, the Agency did not ‘‘go discharge mixers, which dispense correct inconsistencies in 49 CFR 395.1 back to the drawing board’’ and draft a
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50043
new rule incorporating some of the best and rulemaking program to determine the industry as we considered our aspects of the 2003 rule, such as the whether that rule could be reconciled regulatory options. We specifically shortened daily on-duty period, nor did with the Public Citizen decision. Most of asked in our guidance for commenters it include safeguards from the old rule, the critical comments summarized to provide information on the current such as the weekly driving hour limits. above simply overlooked the fact that type of operations, including ‘‘(a) According to AHAS, ‘‘[t]he notice FMCSA did not have enough time in whether your primary operations are neither provides any indication of what, one year sequentially to complete its short-haul (i.e., operations limited to if any, changes to the [April 2003] HOS research on a wide variety of issues, 150 miles or less, with drivers typically regulations the Agency is considering, prepare and publish an NPRM, accept spending the night at home) or long nor how it plans to resolve the issues and analyze comments, make necessary haul.’’ raised in the Court’s opinion.’’ Because changes to the regulatory proposal, FMCSA has always allowed the the notice did not narrow the possible submit the draft for intragovernmental docketing of information submitted after issues or focus public comment on review, and publish a final rule. Instead, the comment period closes. The NPRM specific actions under consideration, the Agency opted for a parallel process; said that ‘‘[c]omments received after the AHAS argued, the notice ‘‘is equivalent the public was asked to comment on comment closing date will be included to an advance notice of proposed changes to the 2003 rule that might be in the docket and we will consider late rulemaking, but does not rise to the needed to comply with the court’s comments to the extent practicable. level of a NPRM within the meaning of decision, while the research and FMCSA may, however, issue a final rule the Administrative Procedures [sic] Act analysis on driver health and other at any time after the close of the (APA).’’ issues identified by the court went comment period.’’ The Agency accepted Commenters also requested FMCSA to forward simultaneously. There is no and read many comments filed after the leave the record open so that useful principle of administrative law that closing date (March 10, 2005), and data, such as the 2004 NHTSA crash requires an Agency to forswear the posted additional material to the docket data, could be provided. The Truckload search for additional information in an as it became available. Carriers Association (TCA) said that the NPRM; on the contrary, agencies always short comment period had diminished seek new information from commenters. Driver Health its ability to provide evidence, and that This parallel procedure is fully Both Public Citizen and AHAS argued keeping the docket open was essential. consistent with the requirements of the that the NPRM sought to create a AHAS and Public Citizen asked that the Administrative Procedure Act. The misleading and improper focus on the Agency provide time for the public to provisions of the 2003 rule that FMCSA vacated 2003 rule and the issue of examine and comment on the literature has adopted in this rule were, of course, whether that rule should be changed. review being conducted by the proposed in detail in the NPRM. To the Public Citizen found it unacceptable for Transportation Research Board (TRB) of extent revisions have been made, they FMCSA to frame the discussion the National Academy of Sciences. are in response to issues raised in the regarding driver health as if the 2003 NPRM. For example, the discussion of FMCSA Response final rule was an acceptable baseline sleeper berths included the statement against which modifications should be Rulemaking as complex as this action that ‘‘FMCSA will consider a variety of judged. AHAS similarly argued that the would normally require several years to possible changes to the sleeper-berth proposal continued to promote the complete. The entire process had to be provisions, including but not limited to: compressed into one year, because that * * * (2) allowing one continuous invalidated April 2003 HOS final rule, was the time provided by Sec. 7 (f) of sleeper-berth period of less than 10 notwithstanding its wholesale rejection the Surface Transportation Extension hours, such as 8 hours, to substitute for by the Court of Appeals. Act of 2004, Part V. The Agency alluded the otherwise minimum 10 hours’’ [70 Both argued that the NPRM also to this dilemma in the NPRM and FR 3349]. After examining a variety of incorrectly sought to narrow the scope explained its effort to reconcile the alternatives, the Agency adopted that of the Agency’s responsibility to requirements of notice and comment very option. The NPRM also discussed safeguard driver health (Public Citizen) rulemaking with the realities of an the unique operational conditions or tried to avoid distinguishing between expanding, time-consuming research affecting local or short-haul drivers and safety effects and health effects, as the program needed to address the issues concluded that, ‘‘[s]ince local short-haul Court of Appeals had required (AHAS). raised by the court. ‘‘In order to allow drivers typically work daytime hours, They both accused FMCSA of seeking to effective public participation in the they are much more likely to maintain address only injuries or health process before the statutory deadline, regular schedules that are less intense conditions directly related to the HOS FMCSA is publishing this NPRM than many long-haul drivers. Short-haul regulations and operation of a CMV, not concurrently with its ongoing research drivers are significantly less likely to be other workplace injuries or health and analysis of the issues raised by the working 13 or more hours or to have conditions suffered by drivers. AHAS court. To facilitate discussion, the irregular circadian patterns. Also, local argued that the NPRM’s focus should Agency is putting forward the 2003 rule short-haul drivers typically sleep at have been broader than driver injuries as the ‘‘proposal’’ on which public home every night in their own beds. resulting from crashes or adverse health comments are sought. This NPRM, Thus local short-haul drivers are much impacts attributable to the act of however, asks the public to comment on more likely to be getting the daily driving. In AHAS’s view, the issue of what changes to that rule, if any, are restorative sleep necessary to maintain fatigue, alertness, and safe driving was necessary to respond to the concerns vigilance’’ [70 FR 3351]. The Agency’s factually and legally distinct from the raised by the court, and to provide data new regulatory regime for drivers of issue of the health, physical condition, or studies that would support changes short-haul vehicles that do not require and well-being of truck drivers, but to, or continued use of, the 2003 rule’’ a CDL is strongly foreshadowed by these throughout the NPRM driver health, safe [70 FR 3339]. passages. operation, and economics were treated As the quotation marks around In the NPRM instructions we were as inextricably linked factors whose ‘‘proposal’’ indicate, the 2003 rule was particularly interested in how various effects could not be separated and dealt merely the starting point of a research provisions impacted different sectors of with individually.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50044 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Finally, both Public Citizen and calculation either of the benefits or the K. Rulemaking Analyses and Notices AHAS argued that the NPRM failed to cost of such a regulation. This is K.1. Executive Order 12866 (Regulatory provide any scientific support for the discussed more fully in section E.2, Planning and Review) and DOT crucial elements of the Agency’s dealing with exposure to diesel exhaust. Regulatory Policies and Procedures proposal. Public Citizen stated that the proposal ‘‘flies in the face’’ of scientific Docketing Issues Overview evidence. AHAS asserted that the NPRM Public Citizen stated that ‘‘FMCSA The FMCSA received numerous contained ‘‘not a scintilla of data and has haphazardly provided only abstracts comments regarding the economic scientific evidence’’ that FMCSA had in the docket for a number of studies impacts of the 2003 rule with regard to produced and applied any information daily driving time, daily on-duty and with which to assess and compare the that the Agency cites in this rulemaking notice, citing copyright protection off-duty periods, the recovery period, health effects of the pre-2003 HOS rule and combined economic effects. Today’s and the health effects of the April 2003 concerns. This is a completely preamble has discussed these comments HOS regulation. No scientific illegitimate claim. FMCSA may not base separately as part of its individual information had been placed in the any rulemaking on materials not made discussions of those issues. As such, rulemaking record showing that drivers publicly available and open to public comments concerning the economic obtained more sleep under the new rule scrutiny and comment. To do so would impacts of individual provisions will than under the old rule; or that they be a violation of the transparency not be addressed in detail here. were more alert and had less fatigue; or requirements of the Administrative However, several comments were that the new regulation had discernible Procedures [sic] Act (APA). * * * received regarding other cost impacts of safety benefits. AHAS asserted that FMCSA may not rely for its decision on the 2003 rule, as well as limitations of FMCSA could not satisfy its statutory any study for which it has provided responsibility to consider existing the models used in the 2003 regulatory only an abstract.’’ In a supplemental impact analysis (RIA). See the RIA scientific literature by asserting, as it comment, Public Citizen identified 23 did in the NPRM, that ‘‘[t]he document in the docket for more details. studies provided only in abstracts; five Several commenters stated that they implications of these studies are not of these had been available in full in the would incur additional employee always clear.’’ AHAS concluded that the docket of the 2003 rule. The group training costs if further changes were NPRM did not satisfy either FMCSA’s asserted that the 2003 docket made made to the HOS rules. Some also legal burden or its statutory obligation, arguing that the Agency had not available many copyrighted documents, commented that they would incur demonstrated in the NPRM ‘‘any and added that this docket apparently software reprogramming and update intention to actively engage in a had been modified to substitute an costs due to their use of electronic rulemaking action that directly abstract for a paper that was originally logbook software. The FMCSA confronts the application of existing part of the docket. AHAS also objected recognizes that today’s rule will result research on worker health and physical to the posting of abstracts, rather than in new costs to motor carriers to train condition to appropriate amendment of complete copies, of some studies. their drivers and other employees. As such, the RIA prepared for today’s rule the current HOS regulation. Moreover, FMCSA Response the Agency has failed to address its legal estimated employee training costs to motor carriers and drivers as part of its and statutory duty to ensure that the FMCSA placed abstracts of the estimate of the total costs. Details regulations it promulgates does [sic] not copyrighted reports in the docket well have a deleterious impact on truck regarding these costs are included in the before the close of the comment period. RIA summary that follows this driver health, physical condition, and The abstracts identified the research well being.’’ discussion, as well as in the separate under review by the Agency, RIA, entitled ‘‘Regulatory Impact FMCSA Response summarized the conclusions of the Analysis and Small Business Analysis The alleged deficiencies in the authors, and supplied publication for 2005 Hours of Service Regulatory Agency’s approach to driver health are details. As FMCSA noted in Options,’’ contained in the docket. answered by the discussion of that issue correspondence responding to AHAS’ Regarding software costs, not enough elsewhere in this preamble. FMCSA did concern over the abstracted reports, the information was available on overall use not treat the 2003 rule as the baseline full versions of the reports were readily of electronic logbook software to for analyzing driver health, as charged available in the Library of Congress, the explicitly estimate such costs to the by Public Citizen. The Agency National Library of Medicine in industry. However, such costs are essentially used the pre-2003 Bethesda, and other sources such as indirectly estimated in this rulemaking regulations as the baseline. In any event, university libraries. AHAS therefore as part of estimating the dollar cost of the effect on driver health of the HOS could have obtained copies to review record of duty status (RODS) paperwork changes made in the 2003 rule proved when those abstracts were docketed. burden to industry from today’s rule. to be inconsequential. As for AHAS’s FMCSA is not aware of any APA The Agency’s paperwork burden charge that FMCSA improperly linked requirement that the Agency produce document, entitled ‘‘Supporting health, safety and economic the complete text of copyrighted studies Statement for Driver Hours of Service considerations, rather than dealing with which are otherwise reasonably Regulation,’’ is contained in the docket. them individually, the Agency is obtainable from other sources. Advocates for Highway and Auto required by statute to consider the costs Safety (AHAS) commented to the 2005 Nonetheless, FMCSA has created a of any regulations it believes necessary, NPRM docket that ‘‘the Agency failed to reading room where the copyrighted including those to protect driver health account for the increased risk of crashes [49 U.S.C. 31136(c)(2) and 31502(d)]. materials referred to in the NPRM may as time-on-task commensurately Although the Agency ultimately be examined [Department of increases in its final benefit-cost determined that no such regulations Transportation, Nassif Building, 400 analysis’ and Public Citizen commented were needed, the health data examined Seventh St., SW., Room 403, Plaza that FMCSA’s RIA made ‘‘no attempt to proved too uncertain to allow a reliable Level, Washington, DC]. take time-on-task into account.’’ In
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50045
developing its RIA for today’s rule, the on-duty count after 34 hours of rule as a baseline for the analysis. Agency updated the sleep-performance consecutive off-duty time. Compared to the current analysis, using model used to estimate the safety • Option 2 (today’s rule), allows 11 the pre-2003 baseline would have meant impacts of the 2003 rule. To incorporate hours of driving in a tour of duty, that the values for costs and benefits of the potential effects on safety in the restricts the splitting of off-duty time in each option would have changed, but most comprehensive way, the Agency sleeper berths to ensure that there is one their relative rankings would have used a commercially-available computer period of at least 8 hours and counts the remained intact, since the values for program called the ‘‘FAST/SAFTE’’ shorter part of a split period against the costs and benefits would have changed Model. This program is designed to take 14-hour tour-of-duty clock; and allows by the same amount under each option workers’’ schedules and predict their drivers to re-start their 60- or 70-hour (as represented by the difference level of performance at each point in on-duty count after 34 hours of between the pre-2003 rule and the 2003 time. These performance levels were consecutive off-duty time. rule). • then used to estimate changes in crash Option 3 does not allow more than Using the pre-2003 rule as a baseline, risks for those time periods when the 10 hours of driving or the splitting of however, may have affected the choice simulated operations schedules showed off-duty periods, and requires 58 hours of options in one respect. For instance, off before restarting. if, using the pre-2003 baseline, the 2003 that the truck drivers were at the wheel • (and thus vulnerable to crashing). The Finally, Option 4 is a variant on rule had negative net benefits that were FAST/SAFTE Model is able to predict Option 3 that allows operators to restart larger than the positive net benefits seen 7 changes in drivers’ levels of the ⁄8-day clock by taking a 44-hour off- under Option 2 using the 2003 baseline, performance caused by varying degrees duty period. It is intended to test then the net benefits of Option 2 relative of sleep deficits over recent days and whether the costs of a much longer to the pre-2003 rule would be negative, weeks. In addition, it accounts for a restart or recovery period can be and adopting the pre-2003 rule would driver’s circadian rhythms, and predicts mitigated while keeping some of the maximize net benefits. Fortunately, the the degree to which performance is presumed fatigue-reducing benefits of a Agency has already substantially degraded by driving at certain times of longer break. evaluated the marginal economic It should be noted here that Options day or in certain parts of a daily cycle. impacts of the 2003 rule (a copy of 2 through 4 include the new short-haul The disruptive effects of rapid changes which is contained in the docket), so the regulatory regime, so there are no cost in circadian rhythms are also taken into evaluation for today’s rule could be differences among the Options with considered in some respects the second consideration. However, according to regard to short-haul operational our research, all currently-available, phase of a two-phase evaluation of the changes. economic effects between the pre-2003 peer-reviewed sleep-performance Baseline for the analysis. According models, including the FAST/SAFTE rule and today’s rule. to Office of Management and Budget According to the 2003 RIA, the 2003 Model, are limited in their ability to (OMB) guidance in OMB Circular A–4, rule resulted in net benefits totaling $1.1 take time-on-task (TOT) effects the benefits and costs of each regulatory billion annually, relative to the pre-2003 explicitly into account. The Agency alternative must be measured against a rule. Since the adoption of the 2003 corrected for this limitation by adding baseline. The OMB guidance to Federal rule, however, the analysis of HOS an independent TOT multiplier to the agencies states that the baseline ‘‘should regulations has advanced in a number of results of the FAST/SAFTE model. be the best assessment of the way the important ways that could have affected Despite the limitations of the available world would look absent the proposed the regulatory impact analysis of the data, as was noted earlier in this action.’’ [Office of Management and 2003 rule. In other words, had the preamble, FMCSA addressed TOT Budget, Circular A–4, 2003]. In most agency fully updated the 2003 RIA effects in its modeling and did so by cases this would be the current using the latest available data and basing its TOT multiplier on data from operating or existing regulatory analytical methodology, it is probable the Trucks Involved in Fatal Accidents environment, and the impacts of all that the net benefits would be different. (TIFA) database [Campbell, K.L. (2005), regulatory alternatives must be For instance, the agency has included a p. 8], which examined the number of measured against this baseline. FMCSA substantial revision to the model to trucks involved in fatigue-related fatal first consulted with OMB to ensure that allow for TOT effects, and has explicitly crashes by driving hour. the baseline chosen for this RIA, the accounted for shifting circadian Options Considered current operating environment, was the rhythms resulting from a driver’s most appropriate starting point for the schedule changes. After reviewing almost 1,800 written RIA. In discussions with OMB, it was The agency concludes, however, that comments submitted in response to the decided that the current operating the net benefits of the 2003 rule relative 2005 NPRM, current safety research, environment prior to today’s rule was to the pre-2003 rule would remain and recently compiled industry the most appropriate baseline for this highly positive. This conclusion is operations data, FMCSA identified four analysis for several reasons. Industry is based on several factors. First, the regulatory options for detailed economic currently operating under the 2003 rule available data on risk since the 2003 benefit-cost analysis. and the RIA must provide an estimate rule was put in place indicates a lower • Option 1 is to readopt provisions of of the marginal or incremental economic crash risk, as the agency concluded in the 2003 rule, which allow up to 11 impacts of potential Federal regulatory the 2003 analysis. Although these data hours of driving within a consecutive changes for use by decision makers. are not comprehensive, many motor 14-hour tour of duty; minimum Please note, however, that the relative carriers have reported lower crash and consecutive 10 hours daily off-duty ranking of the options described and injury rates under the 2003 rule, and period, or alternatively allowing each analyzed in the RIA would not be preliminary FARS data indicates that 10-hour off-duty period to be split into affected by the choice of a baseline. For fatigue-related fatal truck crashes have two periods of at least 2 hours each, example, although we believe that the declined, both in number and as a provided a sleeper berth is used and 2003 rule is the most appropriate percentage of all fatal CMV crashes. certain other requirements are met; and baseline for this analysis, it may also Second, the RIA includes many drivers to re-start their 60- or 70-hour have been of interest to use the pre-2003 analyses that are relevant for comparing
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50046 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
the 2003 and pre-2003 rules. In the RIA, important differences between the pre- here, as there would be no incremental Option 3 contains many of the 2003 and the 2003 rule, namely a 10 cost or benefit changes relative to the provisions in the pre-2003 rule, most versus 11-hour daily driving limit, and baseline, or 2003 rule; however, if notably, 10 hours of daily driving and concluded it was cost-beneficial to readers wish to examine the specific no restart provision. In addition, the allow the 11th hour of driving. costs and benefits of Option 1 relative agency ‘‘stress tested’’ the allowance of For additional details the reader is to the pre-2003 rule, they may refer to the 11th hour of driving in the referred to the stand-alone 2003 and the 2003 RIA in the docket. Following sensitivity analysis described below. In 2005 RIAs contained in the docket. this summary of net impacts are Presented below is a summary of the that analysis, even assuming a greatly net economic impacts of the alternative individual discussions of the costs and increased fatigue crash risk of driving in regulatory options considered (Options benefits associated with these the 11th hour and other assumptions 2, 3 and 4), with the effects broken out Alternative Options. favoring the restriction of the 11th hour by those impacting the long-haul (LH) Discussion of Net Effects of driving, Option 2 is still the most sector and those impacting the short- cost-beneficial option. In other words, haul (SH) sector. The costs of Option 1 Figure 11 includes estimates of the the agency very thoroughly analyzed the (commonly referred to as the ‘‘Status net effects of the alternative options incremental impact of one of the most Quo’’ option) are not discussed in detail considered for this rulemaking. FIGURE 11.—NET IMPACTS BY OPTION
Net Incremental Annual Costs, Benefits, and Net Costs of the Options Relative to Option 1 (Millions of 2004 dollars, rounded to nearest $10 million)
Option 2 Option 3 Option 4
Total Annual—LH ...... 30 2,140 1,390 Incremental Cost—SH ...... ·280 ·280 ·280 Total Crash Reduction—LH ...... 20 120 120 Benefits—SH ...... 0 0 0 Net Annual Costs ...... ·270 1,740 990 Note: LH = Long Haul; SH = Short Haul.
The analyses and figures presented Figure 11, are due to the nature of LH hour variant from $256 million to $782 below in detail under the Costs and versus SH operations. Specifically, the million, making Option 2 with 10 hours Benefits sections of this discussion 11th hour of daily driving, the recovery driving even less cost effective relative indicate that Option 2 would provide provision, and the split sleeper-berth to Option 2. More than tripling the net savings relative to the baseline, or provision are used almost exclusively value for each statistical life saved (from 2003 rule, while the other two by long-haul and regional operations, $3 million to $10 million) improved the regulatory alternatives considered here and as such, the costs of today’s rule are relative cost effectiveness of Option 2 yield net annual costs. concentrated in the LH sector. with 10 hours driving, but it was still Total net benefits of Option 2, as Meanwhile, the majority of benefits of neither cost beneficial on its own (with listed in Figure 11, are estimated at today’s rule accrue to SH operators by net costs of $170 million) nor cost roughly $270 million annually. This way of the new regulatory regime, effective relative to Option 2. Also, total is comprised of $10 million in net which grants substantial paperwork raising the relative risk of a fatigue- costs to the long-haul (LH) sector (i.e., savings and incremental productivity related crash in the 11th hour of driving $30 million in LH costs minus $20 benefits to large portions of the SH by 1.4 times the value used in time-on- million in LH safety benefits), offset by sector. task (TOT) multiplier in the RIA did not Sensitivity Analysis for a 10-hour $280 million in annual net benefits to make Option 2 with 10 hours driving Driving Limit. In addition to examining the short-haul (SH) sector. cost effective relative to Option 2 ($232 Total net costs of Option 3 are options 2, 3, and 4 relative to Option 1, in net costs versus $270 in net benefits estimated at approximately $1,740 a variant of Option 2 was considered. respectively), nor did substantially million annually. This total is This variant combined the other features comprised of $2,020 million in net costs of Option 2 with the 10-hour driving raising the baseline level of fatigue in to the LH sector (i.e., $2,140 million in limit included in Options 3 and 4. This truck-related crashes (i.e., $189 million LH costs minus $120 million in LH option was found to be considerably in net costs for Option 2 with 10 hours safety benefits), offset by $280 million less cost-effective than the basic version driving relative to $287 million in net in annual net benefits to the SH sector. of Option 2, as shown in the first row benefits for Option 2). Each change Total net costs of Option 4 are of Figure 12. Whereas Option 2 has net improved the showing of the 10-hour estimated at approximately $990 million benefits of $270 million per year, the 10- variant, but still left it with net costs annually. This total is comprised of hour variant has net benefits of negative rather than net benefits. Only in a very $1,270 million in net costs to the LH $256 million per year (i.e., it has net unlikely scenario that combines all sector (i.e., $1,390 million in LH costs costs). The conclusion that imposing a three of the assumptions favorable to the minus $120 million in LH safety 10-hour driving limit was not cost- 10-hour limit does the 10-hour variant benefits), offset by $280 million in effective was tested by reexamining show any net benefits. Even in this annual cost savings or net benefits to the costs and benefits under a series of scenario, though, its net benefits are far SH sector. sensitivity assumptions, which are below that of Option 2 without the 10- The differential economic impacts shown in the other rows of Figure 12. hour restriction, indicating that it is incurred by the LH and SH sectors of Doubling the assumed use of the 11th implausible that eliminating the 11th the motor carrier industry, as seen in hour increased the net costs of the 10- hour would be cost-effective.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50047
FIGURE 12.—SENSITIVITY ANALYSES OF THE NET BENEFITS OF A 10-HOUR DRIVING LIMIT [Millions of 2004$ per year]
Net Benefits of Net Benefits of Option 2 w/10 Option 2 hrs
Basic Assumptions ...... 270 ·256 Twice as Much Use of 11th Hour ...... 270 ·782 Higher Value of Statistical Life (VSL) ...... 291 ·170 Higher TOT Impact ...... 270 ·232 Higher Baseline Fatigue ...... 287 ·189 Higher VSL, TOT Impact, and Baseline Fatigue ...... 326 60
What follows is a detailed discussion within each option will affect carrier operations, we have limited our analysis of the marginal costs and benefits of the operations in complex and interacting to the predominant parts of the alternative regulatory options relative to ways. It also recognizes that these industry. the baseline. effects will depend strongly on the Industry Segments Analyzed Costs of the Alternative Options carriers’ baseline operating patterns, which vary widely across this diverse This section presents the results of the The trucking industry is made up of industry. To produce a realistic cost analysis and includes estimates of distinct segments with different measurement of each option’s impacts, the required changes in the commercial operating characteristics. As a driver population as a result of impacts we divided the industry into broad consequence, HOS rules and changes in to long-haul operations. segments, collected information on HOS rules will have different impacts operations within these segments, and on different segments. Figure 13 Assessing Costs then created a model of carrier illustrates the division of the industry The analysis of costs presented here operations as they are affected by HOS into its major segments. recognizes that the different provisions rules. Because of the very wide array of FIGURE 13.—DIVISION OF INDUSTRY INTO MAJOR SEGMENTS
Random Regular Long-Haul and Regional Random Truckload (TL) Regular TL Private Carriage Less-Than-Truckload (LTL)
Short-Haul and Local
The first major division within the be treated differently in the simulation to that set of origins and destinations. industry is between long-haul and model that is our principal analytical Service like this can be planned for regional—what one can call over-the- tool. efficiency, and the planning can address road (OTR) trucking—and short-haul/ In random service, a company’s trucks driver-retention issues; regular drivers local. The great preponderance of short- do not follow any fixed pattern. tend to spend familiar weekends at haul/local operations resemble Following restarts at home, drivers pick home. ‘‘normal’’ employment, quite different up outbound loads near their home Private carriage is regular; loads move from the working environment of the terminal and begin a road tour. from a fixed set of origins—the firm’s over-the-road driver. In short-haul/local Thereafter, the company’s sales force factories and warehouses—to a fixed set operations, drivers work fairly regular does its best to find loads for the of destinations—its own warehouses or schedules, return to their homes each random drivers and keep them moving stores or the warehouses and stores of night, and have the familiar weekends profitably until they complete their road its customers. Part of regular truck-load off. Because much of their on-duty time tours and come home. Most road tours (TL) operation is outsourced private is for activities other than driving, they will last from one to three weeks. carriage—so-called dedicated service. In rarely, if ever, approach 11 hours of The defining characteristic of regular this kind of service, the TL firm’s driving in a day. They do not use service is that it operates on predictable drivers will operate in the same way as sleeper berths, and the restart provisions schedules; both managers and drivers a private carrier’s drivers—they are are not relevant to workers with regular know, with a high degree of certainty, doing the same kind of work. Other weekends off. As such, impacts what they are going to be doing over a kinds of regular TL service are similar associated with potential changes to projected time period. Regular service to dedicated service but with different daily driving time, as well as the sleeper entails regularly repeating patterns. contractual arrangements; the service is berth and restart provisions, are These may be fixed patterns where limited to a known set of origins and restricted to drivers and carriers trucks follow the same series of origin- destinations and can be planned for operating in the regional and long-haul destination pairs in the same sequence efficiency and for driver retention. segments. over the same time cycle. This could Many TL firms, especially the larger For analytical purposes, the major also be service from one or a few fixed ones, have both random and regular division in long-haul and regional origin points to a limited set of operations. trucking is between random and regular destinations in which loads are not Less-than-truckload (LTL) firms have operations. The difference is critical moved over the same routes in a fixed two parts to their operations. They have because the two kinds of operation must sequence, but the operation is confined local pick-up and delivery service in
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50048 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
which freight is taken out from a hours-of-service (HOS) regulations. The more regular weekends off, and less terminal to its ultimate destination and model simulates how a CMV operator time spent waiting for loads. The LTL freight is picked up and brought into a would behave, starting from his or her portion of the industry is also modeled terminal for movement over the road to home terminal and making various in this way; though almost all over-the- another terminal where local service stops to pick up and deliver shipments road LTL runs are overnight rather than will take it to its destination. The over- over a pre-defined duration. For further during the day, the regularity of the the-road service among an LTL details on this model, the reader is schedules makes it reasonable to treat company’s terminals is highly regular. referred to the stand-alone 2005 RIA in them like other regular drivers. Trucks make overnight runs between the docket. pairs of terminals. Most drivers will be We controlled for the prevalence of Team operations were treated home again by the next morning; in splitting sleeper berth periods by separately for all of these segments some cases they will sleep out one night running cases in which the drivers because of the special way in which the and return the next night. Drivers are either took advantage of their ability to options interact with their schedules. home for weekends. It is a highly split, or did not use that option even if Team operations should be very little planned operation. it appeared to be beneficial.3 affected by the 34-hour restart, but Finally, in each of the OTR segments, A year’s worth of driving was could be substantially affected by there is a difference between solo and simulated for each case, varying the restrictions on the use of split sleeper team-driving operations. For long- intensity of effort and the typical length berth periods, and by the elimination of distance operations with high time of haul for each option. The average the ability to use the 11th hour as a sensitivity, pairs of drivers can number of hours per day of driving is buffer when the drivers aim at an substantially increase a truck’s range per the productivity measure used to average of 10 hours of driving per day. calendar day. The tradeoff is that team compare the outputs from option to In addition, team operations will tend drivers cannot, on average, work as option. There are some random toward regularity and high utilization. much as a solo driver. components to the analysis, which As a result, team operations were more result in some uncertainty in the easily modeled off-line, concentrating Analytical Approach to Estimating Costs comparisons among options, but the by Industry Segment on the effects of sleeper berth rules on effect of this uncertainty is minimized driver alertness under a limited number As noted above, for-hire TL once several runs are combined. operations are divided into ‘‘random’’ Regular, for-hire TL operations are of scenarios. and ‘‘regular’’ segments. The impacts of modeled in essentially the same way as Measured Productivity Impacts of different HOS rule options on the private carriage. The same basic Options random group were measured using a simulation model is used, but with simulation model. The Agency different assumptions about patterns of Figure 14 shows the average developed an Excel macro-driven operation. Its distinguishing features are percentage change in driving hours spreadsheet model to simulate a CMV more regular work schedules (in terms between Option 1 (status quo), Option 2 driver operating in compliance with of repeating starting and ending times), (today’s rule), Option 3, and Option 4. FIGURE 14.—ESTIMATED LOSS IN PRODUCTIVITY BY OPTION AND CASE
Relative reduction in driving hour (percent) Option 2 Option 3 Option 4 compared to compared to compared to option 1 option 1 option 1
Run characteristics
For-hire, Random...... *COM041*Using Split Sleeper SR ...... 1.1 24.9 10.3 Berths. LR ...... 5.9 26.2 19.4 LH ...... ·3.1 17.9 9.6 No Split Sleeper Berths ...... SR ...... 0 24.1 9.3 LR ...... 0 21.4 14.2 LH ...... 0 20.4 12.5 Regular Routes (Private TL, LTL, Reg- Full Weekend Off ...... Weekly Route ... 0 16.1 5 ular For-Hire). Daily Route ...... 0 ·2.0 ·1 Six-Day Work Week ...... Weekly Route ... 0 29.2 19 Daily Route ...... 0 8.9 10 Team Drivers* ...... Using Split Sleeper Berths 0 5.0 5.0 No Split Sleeper Berths 0 5.0 5.0 * These impact estimates were based on simplified scenarios rather than model runs. Note: SR = Short Regional; LR = Long Regional; LH = Long Haul.
The impacts of Options 2, 3, and 4, readily apparent, however. The impacts for both short-regional (SR) and long- relative to Option 1, varied widely tended to be greater for drivers assumed regional (LR) drivers. This effect is across the runs. Some patterns were to take advantage of split sleeper berths, expected, given that Option 1 allows
3 No use of the restricted split sleeper berth purposes of improving productivity. To the extent convenience, with productivity consequences that provision was assumed under Option 2 for the it is used, it can be expected to be used for would be difficult to assess.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50049
drivers to enter their sleeper berths if of a regularly scheduled off-duty period Weighting of the Individual Runs they need to wait several hours before means that a short restart can be very Because the impacts of the options in a load can be picked up or delivered. advantageous, especially for the hard- the individual runs vary so widely, it Because under Option 1 the use of the working drivers that were modeled. The was important to find the weighted sleeper berth extends the 14-hour exceptions to this trend can be average impacts across the runs, rather driving window, there are explained by the reduced value of the than relying on unweighted averages or circumstances in which the drivers can restart in particular cases. The regular simply presenting the range. The be more productive, or can accept more weekly and daily routes (which weighting procedure was based, in the advantageous loads. This use of the generally have a full weekend off), and first instance, on estimates of the sleeper berth is more important if there team drivers (who share duty hours fraction of total vehicles miles traveled are more waiting periods and less each day) do not need to restart because (VMT) accounted for by each driving, which tends to be characteristic their cumulative 8-day on-duty totals do operational pattern. For example, teams of operations with shorter lengths of not reach 70 hours. Finally, it should be account for about 9 percent of total LH haul. Thus, it is not surprising that the noted that the one case of a negative VMT, and LTL over-the-road operations relative impact of not having the split measured impact of Options 3 and 4 is account for another 5 percent. The break available is absent for the long- the result of the random elements in the remaining VMT are split about equally haul (LH) cases (and the positive effect simulation procedure, and would not be between for-hire and private fleets. We of eliminating the split break for LH expected to persist if these runs were found that about 60 percent of for-hire drivers can be attributed to random repeated a large number of times. TL VMT can be considered random as elements in the simulation procedure). opposed to regular, and that within the Looking at the last two rows of Figure Overall, the loss of the split break random component long regional and 14, or those operations involving team appeared to be of minor importance for long haul operations are of greater drivers, we see that in all cases, the the productivity of solo drivers. This magnitude than shorter operations. We observation is likely due to the fact that, team drivers were expected to lose 5% also found that somewhat more than while the opportunity to initiate a split of their productivity as a result of half of for-hire operations, and break provides flexibility, the rules for adopting either Option 3 or 4. This somewhat less than half of private fleet using this feature imparts rigidity to a results from the loss of the 11th hour of operations, are intensive enough to driver’s schedule for subsequent tours of driving. This impact could occur press the HOS limits and should duty. For team drivers, we concluded despite the fact that teams are not therefore be affected by changes in those that there was no necessary reason for expected to use more than 10 hours per limits. a productivity impact from eliminating day per driver on average. Without the In addition to representing the typical split break periods because two drivers possibility of driving into the 11th hour, patterns in the industry, however, it was alternating 10-hour driving periods can the only way to average 10 hours of important that the modeling reproduce drive as much as two drivers alternating driving per day is for each member of the usage of the important features of 5-hour driving periods. the team to drive exactly 10 hours per the HOS rules that differ between the The relative productivity loss caused day. Because rest stops are found only options. To ensure that the weighting by Option 3 is substantially greater than at discrete points along the highway, resulted in an accurate reflection of the that for Options 2 and 4 in almost all though, it will generally be impractical use of these features (and realistically cases. This pattern comes from the fact to stop exactly at 10 hours—meaning measured the impacts of the options), that the important difference between that drivers will generally have to stop the weights reflected, in part, data such these options is the length of the restart before 10 hours have elapsed in order to as that shown in Figure 15 (see stand- period. For the random drivers, the lack avoid violating the 10-hour limit. alone 2005 RIA for details). FIGURE 15.—USE OF THE 11TH DRIVING HOUR [Use of the 11th hour by run]
Percentage of tours with more than 10 hours of driving in option 1 (percent)
Run characteristics
Random Truckload ...... Using Split Sleeper Berths ...... Short Regional ...... 0 Long Regional ...... 10 Long Haul ...... 21 No Split Sleeper Berths ...... Short Regional ...... 0 Long Regional ...... 11 Long Haul ...... 28 Regular Service (Regular TL, Private Carriage, Full Weekend Off ...... Weekly Route ...... 31 LTL). Daily Route ...... 55 Six-Day Work Week ...... Weekly Route ...... 29 Daily Route ...... 34 Team Drivers ...... Using Split Sleeper Berths 50 No Split Sleeper Berths 50 Source: Results of ICF Modeling.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50050 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Weighted Productivity Impacts of the over 7.1 percent. Option 4 was found to Labor (Driver) Costs Options have an impact between Options 1 and A significant portion of the cost The weights used in the modeling are 3, at 4.6 percent. resulting from changes in productivity shown in the middle column of Figure The cost impact of these changes in was estimated to be driver-related labor 16 under ‘‘Weight.’’ This table also productivity was calculated by adapting cost changes. That is, changes in the shows each operational type’s the same methodology that was applied HOS options were first translated to contribution to the nationwide weighted for the 2003 RIA for the 2003 rule, changes in drivers’ labor productivities impact, which is calculated by updated to 2004 dollars (see the stand- that were then used to calculate changes multiplying the relative impacts in alone RIA for details). Using that in the number of drivers needed. Figure 14 by the weights in Figure 16. methodology, two main types of costs Changes in the number of drivers were The sums of these weighted were considered: Labor (or driver) costs then translated into labor cost changes contributions are also shown at the and non-driver costs. Each is explained using an estimated ‘‘wage vs. hours bottom of Figure 16. Option 2 was found in more detail below. worked’’ functional relationship for to reduce average driver productivity by truck drivers. Details of the regression only 0.042 percent, while Option 3 model used for this are explained in the reduced average driver productivity Appendix of the stand-alone RIA. FIGURE 16.—WEIGHTED LOSSES IN PRODUCTIVITY
Weighted changes in LH productivity by option and case Option 2 Option 3 Option 4 Weight impact impact impact (percent) (percent) (percent) (percent)
Run characteristics
For-hire, random ...... Using split sleeper berths ...... SR ...... 0.5 0.01 0.14 0.06 LR ...... 1.2 0.07 0.32 0.24 LH ...... 1.2 ·0.03 0.21 0.11 No split sleeper berths ...... SR ...... 2.4 0.00 0.57 0.22 LR ...... 4.9 0.00 1.05 0.70 LH ...... 4.4 0.00 0.89 0.55 Regular routes (private TL, LTL, reg- Full weekend off ...... Weekly ...... 6.9 0.00 1.11 0.32 ular for-hire). Daily ...... 7.9 0.00 ·0.15 ·0.06 Six-day work week ...... Weekly ...... 5.9 0.00 1.73 1.15 Daily ...... 8.9 0.00 0.79 0.88 Team drivers ...... Using split sleeper berths 4.5 0.00 0.23 0.23 No split sleeper berths 4.5 0.00 0.23 0.23 Unaffected (due to less-intense schedules) ...... 45.1 0.00 0.00 0.00
Total ...... 100.0 0.042 7.12 4.61 Note: SR = Short Regional; LR = Long Regional; LH = Long Haul.
Non-Driver Costs percent decrease in productivity by the other non-driver cost components Another part of the direct cost effects weighted average productivity losses discussed above. Using the total re- of the HOS options were related to the associated with Options 2, 3 and 4 and training costs provided by the non-driver changes necessary as a result outlined in Figure 16, we see the commenters, we estimated a cost per of the changes in the number of drivers. following results. driver based on the number of drivers Several categories of non-driver costs The productivity impact of for these companies. These ‘‘unit costs’’ were estimated as follows: implementing Option 2, which was varied between $75 and $150 per driver. • Non-Driver Labor estimated to result in a productivity loss The wide range is due to the variability • Trucks to industry of 0.042 percent, yields $13 in the level of detail provided by • Parking million per year in direct productivity different companies. In particular, some • Insurance costs (i.e., 0.042 multiplied by $298 companies did not make it clear • Maintenance million). As shown in Figure 16, Option • whether the costs they estimated were Recruitment 3 was estimated to reduce industry only for driver re-training or if they Analysis performed originally for the productivity by 7.12 percent. The result included other non-driver staff re- 2003 RIA and reviewed again for this is total annual costs to industry of $2.12 training as well. For details about these rulemaking revealed that a 1 percent billion (or 7.12 multiplied by $298 re-training costs, the reader is referred to change in labor productivity translated million). The productivity cost of to approximately $275 million (in 2000 the docket, with particular reference to implementing Option 4 was estimated at comments submitted by McLane dollars) or $298 million (in 2004 approximately $1.374 billion (or 4.61 dollars).4 Multiplying the costs per 1 Company, Inc., Williams Trucking, multiplied by $298 million). Brink Farms, and CR England. 4 The factor for scaling costs from year 2000 Retraining Costs The lower end of the cost range was dollars (as used in the 2003 RIA) to year 2004 Because several commenters to the reported by C.R. England, and it dollars (for this document) is 1.0824, based on the appeared to have estimated only driver ratio of GDP deflator values for these two years from 2005 NPRM provided data on the Bureau of Economic Analysis National Income and potential costs to re-train drivers and re-training costs. The Agency decided Product Accounts (NIPA) tables. other personnel, we added this to the that this may be too low if training for
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50051
both drivers and supporting staff were some carriers would want to train their Total Costs necessary. As a result, we assumed $100 entire driver workforce, depending on per driver as a reasonable point estimate how many drivers do, or might, use the As seen in Figure 16, implementation for the re-training costs. We assumed sleeper berth provision. For this reason, of Option 2 (today’s rule) entails total these costs to be in 2004 dollars. we assumed constant costs for driver annual costs of $34 million, which is Using a 7 percent discount rate, 10 retraining. As such, retraining costs for composed of $13 million in direct years as the amortization period, and Option 2 could be considered productivity losses and $21 million in three million total truck drivers (Bureau conservative, in that they may be an driver training costs. of Labor Statistics, Current Population overestimate of true retraining costs. Implementation of Option 3 would Survey), we calculated the annualized Also, it must be noted that while we entail total annual costs of $2.142 re-training costs to be $21 million in expect motor carriers to incur any billion, or $2.121 billion in direct 2004 dollars. While retraining costs may driver/employee retraining costs productivity losses and $21 million in in fact vary somewhat by Alternative associated with today’s rule within the driver training costs. Option, the RIA for today’s rule has first year of the rule’s implementation, taken these costs as constant, for a we have spread these costs out over a Implementation of Option 4 would simple analysis. For instance, while it 10-year period and discounted them entail total annual costs of $1.395 might be the case that certain carriers back to present year values for reporting billion, or $1.374 billion in direct would only retrain their LH drivers who purposes (i.e., so as to present total cost productivity losses and $21 million in currently use the sleeper-berth figures as a single ‘‘average annual cost’’ driver training costs. provision, it may also be the case that estimate). FIGURE 17.—TOTAL ANNUAL COSTS BY OPTION
Incremental Annual Costs of the Options for LH Operations Relative to Option 1 Option 2 Option 3 Option 4
Change in LH Productivity ...... 0.042% 7.12% 4.61% Change in Annual Costs Due to Productivity Impact (millions of 2004$) ...... $13 $2,121 $1,374 Incremental Annualized Retraining Cost (millions of 2004$) ...... $21 $21 $21
Total Annual Incremental Cost ...... $34 $2,142 $1,395 Source: ICF analysis.
Other Costs need for 107,000 additional long-haul operations as a result of the new short- drivers (or 7.12 percent of 1.5 million). haul regulatory regime implemented in As discussed earlier in this preamble, If Option 4 were to be implemented, it today’s rule. These benefits accrue by FMCSA conducted an extensive would result in a need for 69,000 way of relief from the RODS completion literature review examining the additional long-haul drivers (or 4.61 burden for many drivers within this potential health effects of changes in the percent of 1.5 million). These estimates segment, as well as slight productivity hours of service rules to commercial would be reduced somewhat if the effect benefits from use of a second 16-hour drivers. However, following this review, of productivity changes on mode choice day. the Agency concluded that neither the (i.e., if freight were to shift to rail as a current data nor the peer-reviewed result) were taken into account; thus, Safety Impacts research findings published to date were they can be assumed to represent upper FMCSA estimated the benefits of the sufficient to allow the Agency to bounds on the required increase in HOS alternatives to long-haul quantify and monetize any marginal drivers. operations using a multi-step process to acute health impacts to commercial relate changes in HOS rules to changes drivers from today’s rule. As a result, Benefits in crashes. Conceptually, FMCSA took such impacts were not incorporated into Two types of benefits were estimated the following steps for each alternative: the cost and benefits estimates as a result of today’s rule. These include (1) Constructed a set of sample developed for the RIA accompanying safety benefits to long-haul operations working and driving schedules of today’s rule. and non-safety benefits to short-haul different intensities and degrees of Increases in Long-Haul Drivers Needed operations as a result of changes in the regularity; maximum daily driving time (i.e., under (2) Used the results of the modeling We are assuming that, because the Options 3 and 4), the recovery provision performed for the cost analysis to same total ton-miles of freight will need (i.e., under Options 3 and 4), and the determine the percentage of drivers to be transported under all three split sleeper berth exemption (i.e., following each sample schedule, and options, the reductions in productivity under Options 2, 3, and 4). Recall from determined the shifts in these can be translated directly into the discussion in the costs section that percentages caused by different HOS percentage increases in the number of short-haul drivers were determined to alternatives; drivers. Thus, Option 2 (today’s rule) be largely unaffected by the changes in (3) Translated the amount of on-duty would require an additional 0.042 these provisions, given that they rarely, time in each schedule into expected percent of 1.5 million long-haul drivers. if ever, use these provisions in their amounts of sleep, using a function based The result is that the industry will need day-to-day operations. As such, any on Effects of Sleep Schedules on to hire about 600 additional drivers as safety impacts to short-haul operations Commercial Motor Vehicle Driver a result of changes implemented as part were determined to be minimal. The Performance (Walter Reed Army of today’s final rule. If Option 3 were to second type of benefits estimated were Institute of Research) [Balkin, T., et al. be implemented, it would result in a non-safety benefits to short-haul (2000)];
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50052 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
(4) Used the FAST/SAFTE Sleep are expected to result from a underestimate the risk of driving in the Performance Model to estimate the combination of increased rest at the end 11th hour. In addition, the agency effects of different sleep and driving of a work week (or similar multiday further tests the robustness of our schedules on a measure of alertness; period), and shorter maximum driving conclusions by performing a sensitivity (5) Translated changes in alertness periods. These effects can be complex analysis which assumes an even larger into relative changes in crash risk, based and subtle, and can interact with each TOT effect in the 11th hour, which is on a driving simulator, and adjusted other and the range of schedules in the described in more detail earlier in this certain estimates upward through use of industry under different options. To section of the preamble, as well as in the a time-on-task multiplier for those crash incorporate these potential effects on stand-alone RIA contained in the risks associated with longer driving safety in the most comprehensive way, docket. schedules; we ran the on/off-duty schedules In order to use the FAST/SAFTE (6) Calibrated the results of the resulting from the simulation modeling model to process the outputs of the simulated crash risk modeling to the through a commercially available operational model, we needed to real world using independent estimates computer program called FAST/SAFTE. determine how much sleep the drivers of the total numbers and percentages of This program is designed to take were getting and when that sleep would crashes attributable to fatigue; and workers’ schedules and predict their occur during given off-duty periods. We (7) Translated the estimated changes level of performance at each point in estimated quantities of sleep for drivers in fatigue-related crashes into dollar time. These performance levels were using data from the Walter Reed field values for avoided crashes using then used to estimate changes in crash study, which provided actual sleep existing estimates of the damages from risks for those time periods when the amount and hours worked for drivers in fatal, injury, and property-damage only operational simulation showed that the that study. The total sleep hours were crashes. truck drivers were at the wheel (and plotted against total on-duty hours for Safety Benefits thus vulnerable to crashing). FAST/ each 24-hour period, revealing a general SAFTE, which was calibrated using the The quantified and monetized safety negative relationship between daily results of the Walter Reed laboratory benefits of the options are derived from hours worked and total daily sleep study of truck drivers, is able to predict their effects on truck crashes in the amount. A cubic regression function changes in drivers’ levels of long-haul sector. Changes in work and was then fitted to the data, which was performance caused by varying degrees sleep schedules of long-haul drivers due then used to predict sleep given of sleep deficits over recent days and to the HOS alternatives can be modeled numbers of hours on duty. weeks. In addition, it accounts for a translated into relative changes in Assumptions were also made that driver’s circadian rhythm, and predicts modeled fatigue-related crashes, and drivers avoid sleeping in very short off- the degree to which performance is can be calibrated to correspond to duty periods, try to consolidate their degraded by driving at certain times of independent estimates of numbers of sleep toward the end of their daily off- day or certain parts of a daily cycle. The fatigue-related crashes. The damages duty periods, but awaken at least a half disruptive effects of rapid changes in from fatigue-related crashes can be hour before starting to drive (to avoid circadian rhythm are also taken into projected for each of the alternatives. the effects of sleep inertia). consideration. The model yields output Changes in Crash Damages Due to in terms of psychomotor vigilance test Crash Risk Results by Operational Case Schedule Changes (PVT) scores, which were found in The results of the crash risk modeling As discussed earlier in this preamble, previous work to be related to changes are presented in Figure 18, after scaling analysis of TIFA data over an 11-year in driving performance. the results to yield an average fatigue- period reveals that fatigue-related Because of research that points to related value of 7 percent in Option 1. crashes are a significant problem in significant time-on-task (TOT) effects, This scaling was performed to long-haul operations. This fact can be and empirical evidence that fatigue- incorporate the beneficial effects of the attributed in part to the relatively heavy related crashes rise as a percentage of 2003 rule on fatigue-related crashes, as work schedules of long-haul drivers, but total crashes after long hours of driving, estimated in the RIA for that rule. also to the fact that long-haul operations we have added an independent TOT Overall, the impacts are relatively small, are much more likely to subject drivers multiplier to the results of the FAST/ as might be expected for options that are to irregular and rotating schedules. In SAFTE model. This multiplier is to making marginal changes to the 2003 this analysis, FMCSA estimated that all TIFA data [Campbell, K.L. (2005), rule. Some patterns are visible: in of the alternative regulatory options Figure 7, p. 8]. While the TIFA data do almost every case, Options 2, 3, and 4 considered here (Options 2, 3, and 4) have limitations, as discussed earlier in show lower crash risks than Option 1. would reduce crashes relative to the this preamble, based on our knowledge In most cases, the crash risk reductions current rules with full compliance. they represent the only recently- were greater for six-day schedules than However, there are differences in the published data available for considering for five-day schedules. relative effectiveness of these three such effects. The Campbell data, relative Options 3 and 4 have generally greater alternative options, which differ in to the other studies, also show a reductions in risks (shown as negative terms of their allowance for improved relatively high increase in risk in the numbers) than Option 2, as is expected rest during the workweek. 11th hour of driving, although all of the due to the greater stringency of those Reductions in crash risks under all studies acknowledge a large degree of options. Impacts on team drivers, which three alternative options are expected to uncertainty. In the face of this were modeled as being the same for result from longer and more uncertainty, the agency felt it prudent to Options 3 and 4, were greater for drivers consolidated periods of rest; and under use a study that shows a higher risk, in who split their rest periods under Options 3 and 4, additional reductions order to ensure that the model does not Option 1 than for those who did not.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50053
FIGURE 18.—DETAILED CRASH RISK ESTIMATES
Relative change in crash risk (percent) Option 2 Option 3 Option 4 compared to compared to compared to option 1 option 1 option 1
Run characteristics
For-hire, random ...... Using split sleeper berths ...... SR ...... ·7.4 ·6.3 ·2.4 LR ...... 1.4 ·5.6 ·7.5 LH ...... 2.0 ·7.2 ·7.6 No split sleeper berths ...... SR ...... 0 1.1 5.0 LR ...... 0 ·6.9 ·8.9 LH ...... 0 ·9.3 ·9.6 Regular routes (private TL, LTL, reg- Full weekend off ...... Weekly ...... 0 0.2 ·0.4 ular for-hire). Daily ...... 0 ·0.7 ·0.3 Six-day work week ...... Weekly ...... 0 ·0.7 ·1.2 Daily ...... 0 ·0.9 ·0.5 Team drivers 5 ...... Using split sleeper berths ·5.7 ·6.4 ·6.4 No split sleeper berths ·0 ·0.7 ·0.7 Weighted average impacts (raw) ...... ·0.3 ·1.4 ·1.4 Weighted average impacts (scaled) ...... ·0.1 ·0.6 ·0.6
Weighting the crash risk results in the 58 percent to $34.6 billion yields because some already engage in same manner as the productivity results, approximately $20.1 billion in crash operations that do not require a logbook. we found the overall reductions in crash damages for which the long-haul Figure 19 outlines the types of short- risk associated with Options 2, 3 and 4 segment is responsible. haul drivers of vehicles below 26,001 to be relatively small compared to the Applying the estimated reductions in pound GVWR that would potentially be baseline. For instance, under Option 2, crash risk due to Option 2 (i.e., 0.1 affected by today’s rule and explains the weighted reduction in crash risk percent) to the $20 billion in crash which of these cases stands to accrue across all regional and long-haul damages involving the long-haul benefits as a result of paperwork operational types was equal to 0.1 savings. Additionally, Figure 19 segment yields a total safety benefit percent. For Options 3 and 4, the presents the dollar estimates of these from Option 2 (today’s rule) of roughly weighted reduction in crash risk across savings. Specifically, as the Figure $20 million per year (or 0.1 multiplied all operational types equaled shows, analysis of the rule, especially of by $20.1 billion). The risk reduction approximately 0.6 percent. the change in the logbook exemption, attributable to Options 3 and 4 is equal requires consideration of three different Value of the Crash Risk Changes to $120 million per year, or the crash cases for operations under the current The above percentage changes in risk reduction for Options 3 and 4 (0.6 rule: crash risk were valued by multiplying percent) multiplied by $20.1 billion. • Driving inside the 100-mile range them by an estimate of the total annual Time Savings and Productivity Benefits and choosing not to keep a log; damage associated with long-haul and to Certain Short-Haul Drivers • Driving inside the 100-mile range regional truck crashes. A recent analysis and choosing to keep a log; and of total large truck crash damages Recall that today’s rule effectively • Driving in the 100–150 mile range, estimated the average annual cost at $32 provides relief from the previously where logs currently are required. billion in year 2000 dollars, or about defined filing requirements for Safety effects of the second 16-hour $34.6 billion in year 2004 dollars. particular segments of the short-haul exemption are not reported in the Figure Research was conducted for this 2005 sector. This involves certain commercial or discussed further in this paper RIA to separate the percentage of total drivers operating vehicles with a gross because, as noted in the safety impacts crash-related damages that were caused vehicle weight rating (GVWR) of less discussion of today’s rule, they were by the long-haul segment of the than 26,001 pounds, who return to their estimated to be minimal. Based on industry. Results revealed that the long- primary duty station each day and analysis conducted in the 2003 RIA, it haul segment was involved in whose range of operations is within a was estimated that the reduction in approximately 58 percent of the total 150 air-mile radius. Not all drivers safety benefits caused by these safety damages associated with large truck- meeting these criteria would be effects would be well below $10 million related crashes. Therefore, applying this provided relief as a result of today’s rule per year.
5 These impact estimates were based on simplified scenarios rather than model runs.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50054 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
FIGURE 19.—TYPES OF POTENTIALLY AFFECTED SHORT-HAUL DRIVERS [Annual savings in millions, rounded to the nearest $10 million]
Total annual Case 1 Case 2 Case 3 savings ($ millions)
Description ...... Now operating within 100-mile Now operating within 100-mile Now operating in 100 to 150 range and not keeping logs. range and keeping logs. mile range. Must keep logs Duty tours ≤12 hours. Duty tours up to 14 hours. and observe 14-hour limit. Logbook effects ...... No effect: Already exempt Relieved from log require- Relieved from log require- $140 from log requirement. ment. Case-2 benefit: $100. ment. Case-3 benefit: $40. Case-1 benefit: $0. Logbook exemption ...... May use 14-hour tour now, if Already choosing logbook and Already have 14-hour tour ..... 0 they keep log. Log cost is 14-hour tour. Benefit: $0. $2.00/day. Tour >12 hours of little value to this group. Benefit: Minimal. Second 16-hour day ...... Case-1 trucks would not use Analysis is an extension of analysis of second 16-hour day 140 the 16-hour day because that was done for the 2003 RIA. This approach did not distin- they already choose not to guish between cases 2 and 3 use the 14-hour tour. Sav- ings: $0.
280
Overview of Short-Haul Impact Analysis 10,000- to 26,000-pound trucks are extend a tour even a fraction of an hour In the 2003 RIA, the Agency estimated assigned to all operating ranges. This beyond the 12-hour limit would have the savings from a second 16-hour day number is converted to truck-days for already found (i.e., under the 2003 rule) (i.e., under the ‘‘ATA Option’’). We have our purpose in a series of steps that it would be worthwhile to keep a used that figure as the basis for our discussed in the stand-alone 2005 RIA. log to secure that increase in current estimate, adjusting for inflation The result of the various steps and productivity. We based this conclusion and the number of affected drivers. Both adjustments is 1.68 million truck-years on the fact that keeping a log for a day for the second 16-hour day and the on the basis of actual use of 10,000– imposes a cost of only about $2, logbook exemption, we had to estimate 26,000 pound GVWR trucks within 150 whereas the increased productivity of a the number of truck-days that would be miles. This figure is the basis of our driver able to work another 15 minutes affected. benefit estimates for both the logbook has a value of that same small A truck-day is the relevant unit, exemption and second 16-hour day. magnitude. Cases in which drivers because the magnitude of effects of both For the logbook savings, truck-years would choose to extend their tours of logbook and 16-hour exemptions are converted to truck-days (driver-days) duty as a result of today’s rule would be depends on the number of days on with two factors. First, we assume the limited to those few cases in which very which they are used. In effect, a truck- average driver works 48 weeks a year, short extensions were desired. day is the same as a driver-day. This is allowing for vacations, holidays, and Furthermore, the added savings from based on the premise that, on any given sick days. Second, on the basis of an these cases can be shown to be quite day, each truck in use has one driver. analysis of survey data on daily and small. Thus, we concluded that the This is virtually always the case in over- weekly hours of work for a sample of savings from drivers in Case 1 would be the-road trucking (except for teams); it short-haul drivers, we use 5.5 days minimal and have left these savings out is also the case for short-haul worked per week for the average short- of the analysis. operations. One could imagine cases in haul driver. The next steps in the Time Savings Benefits for Each Case which two different construction benefit calculation for the logbook workers drive the same truck on the exemption involve the two types of For Case 2 operations, we have to same day or one worker uses two drivers known as ‘‘Case 2’’ drivers estimate the number of trucks operating different trucks, but we expect such (those operating within a 100-mile inside 100 miles and choosing to keep cases to be rare and likely to cancel each radius but using logs) and ‘‘Case 3’’ logs. For this purpose, we rely on the other out. drivers (those operating in the 100–150 FMCSA field survey. In the survey, 10.4 air-mile radius who were previously percent of short-haul drivers reported Details of Analysis required to keep logs). Under Case 2, we tours of duty longer than 12 hours. We For estimating truck-days, the starting have estimated 1.61 million truck years assume these drivers were keeping logs; point is the Vehicle Inventory and Use and for Case 3, we have estimated thus, we estimate that 10.4 percent of 0- Survey (VIUS) from the 2002 Economic 73,000 truck years, which results in the to 100-mile drivers (1.61 million, after Census. Table 4 of the VIUS survey total of 1.68 million truck years rounding) are using logbooks. With this provides the number of 10,000- to mentioned previously. factor, and our assumptions of 48 weeks 26,000-pound trucks (10–26 trucks) in For Case 1 drivers, or those who per year and 5.5 days per week, we each of the reported operating ranges. currently do not keep logs and stay arrive at 44,215,000 truck-days for Each truck in the survey is assigned to within the 12-hour limit, there is a which a logbook would not have to be an operating range on the basis of chance that some would choose to keep completed as a result of today’s rule. We respondents’ statements about the range logs in order to be able to extend their convert this to dollars using the in which the truck runs the most miles. tours beyond 12 hours. We have found, following estimates (originally The table shows that 2.24 million however, that any driver with a need to developed for the 2003 rule): 9.5
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50055
minutes to do the log, $12.62/hour for million. This total represents the time is an annual savings stream of $143.3 the driver’s wage, and an inflation savings associated with today’s rule, million, which we have rounded to adjustment for 2004 dollars. The result which will exempt Case 2 operations $140 million. is a stream of annual savings of $95.6 (trucks/drivers operating within a 100 million, which we have rounded to air-mile radius and keeping logs) and Total Short-Haul Time Savings and $100 million. Case 3 operations (trucks/drivers Productivity Benefits For Case 3, the same procedure is operating between 100–150 air-mile Combining the time savings benefit to followed with one exception. All Case- radius and keeping logs) from the certain short-haul operations with the 3 trucks (73,000) are now keeping logs, logbook requirement. so there is no need to adjust for those Benefits from the use of the first 16- productivity benefits obtained from use not keeping logs, as was done above hour day were originally estimated in of the second 16-hour day yields total with Class 2 drivers. The result is the RIA for the 2003 rule, and were annual benefits of $280 million. Given 19,340,000 driver-days for which a found to equal approximately $470 that the new, short-haul regulatory logbook would not have to be million annually. A calculation using regime was included as part of Options completed. Monetizing this benefit the same methodology showed that the 2, 3 and 4, the short-haul operations using the above wage rate and time savings from a second 16-hour day in benefits estimates are the same under all savings figure, the result is an annual each week would be about one-quarter the options. stream of savings of $41.9 million, as great. Thus, for 1.5 million short-haul which we have rounded to $40 million. drivers, annual savings are estimated at Total Safety and Non-Safety Benefits Summing the benefits from Case 2 $118 million (in year 2000 dollars). Figure 20 lists total benefits and Case 3 operations yields total Updated to year 2004 dollars (to adjust associated with the alternative options. annual time savings benefits of $140 for inflation over this period), the result
Under Option 2 (today’s rule), total profit organizations, and small way the results are presented in the RIA annual safety and non-safety benefits governmental entities with populations summary and lends itself to this type of equal $300 million (in 2004 dollars). under 50,000. Most of these small breakdown for reasons discussed in the Under Options 3 and 4, total annual entities operate as motor carriers of RIA. Specifically, the 11th hour of daily safety and non-safety benefits equal property in interstate or intrastate driving, the recovery provision, and the $400 million (again, in 2004 dollars). commerce. split sleeper-berth provision are used K.2. Regulatory Flexibility Act This discussion summarizes the small almost exclusively by long-haul and business impact analysis performed for regional operations. However, the In compliance with the Regulatory today’s rule. The small business impact majority of cost-saving benefits from Flexibility Act (5 U.S.C. 601–612), analysis is broken out by impacts to today’s rule accrues to SH operators FMCSA has evaluated the effects of this long-haul (LH) operations versus short- because the new regulatory regime proposed rule on small entities, haul (SH) operations, and focuses on the positively impacts large portions of the including small businesses, small non- LH sector. This is consistent with the SH sector. Additionally, such a break-
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.001 50056 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
out is consistent with how results were Carriers typically exceed this threshold The small business impact analysis presented in the RIA to the 2003 rule. when they operate more than 145 conducted here used two industry- 8 specific data sources in developing the Focus on Long-Haul Operations tractors. The largest two categories encompass those long-haul carriers that firm-level data inputs to the general pro The small business impact analysis do not qualify as small entities under forma model. Annual TTS Blue Book considers firm impacts on long-haul the SBA criteria. The specific size financial data was used as the basis for truckload carriers in seven size categories enumerated above are determining the impact of the change in categories, which are shown below with intended to reflect natural groupings or hours of service regulations on a variety estimates of the number of independent breakpoints in terms of firm behaviors of firm sizes. However, the Blue Book firms falling into each: 67 data only includes firms with revenues • 1 tractor (32,800 firms) and economies of scale. • greater than $3 million per year 2–9 tractors (9,800 firms) For representative carriers in each (approximately 20 tractors). For firm • 10–19 tractors (3,500 firms) size category, the study estimated the • sizes less than this, data from the Risk 20–50 tractors (3,500 firms) financial impact of each alternative • 51–145 tractors (1,800 firms) Management Association (RMA) were regulatory option in terms of the change • 146–550 tractors (600 firms) used for firms with $0 to $1 million • 550+ tractors (150 firms) in net income (in 2004 dollars) to the (assumed to represent firms with 2–9 Carriers in the first five of these carrier,9 as well as a change in their tractors) and $1 to $3 million (assumed categories generally qualify as small profits as a fraction of operating to represent firms with 10–19 tractors). entities under criteria established by the revenues. These estimates were The remainder of this summary is Small Business Administration (SBA) developed based on a pro forma divided into three sections. The first (i.e., annual revenue of less than $21.5 financial model of firms of different provides an overview of the results of million) for all North American sizes confronted by changes in the impact analysis; the second Industrial Classification System productivity, wages, and prices. Figure organizes the results by regulatory (NAICS) codes falling under the truck 21 summarizes the baseline profitability option; and the third organizes the transportation sub-sector (NAICS 484). of carriers in the various size categories. results by different size categories.
6 Impacts on the private fleets are not expected to 7 See Chapter 3 and Appendix A of the RIA for approximately $145,000 per tractor across all firm be significant. In the case of private fleets, firm the 2003 Rule (contained in the docket) for more sizes. impacts generally will be relatively small because details on these estimates. 9 Representative carriers for the four largest size trucking comprises only a small portion of firm 8 Based on analysis of data from the TTS Blue categories were selected on the basis of having the activities. Furthermore, the options have only Book. This implies total revenue (i.e., from trucking median value in the category for profitability (as measured by the ratio of net income to total slight, and positive, effects on SH costs. plus other value-added services) averaging revenue).
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.002 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50057
Summary of Results net income in the short term for some every size category (with the exception The impacts to carriers of the three industry size categories. Results for being a very small improvement for the HOS alternative regulatory options are Option 3 are found in Figure 23. 2–9 category) as shown in Figure 22, compared relative to a baseline, which Profitability as a share of revenue is although these adverse impacts are very consists of the current operating projected to decrease between 1.35 and small in magnitude across the entire environment (the 2003 rule). As such, 2.56 percent across most size classes. range of small firms. Figures 23 and 24 all three alternative policy options The biggest impact of 2.56 percent is felt show the impacts for different size result in reduced profits on most by the 20–50 size class before prices categories for Options 3 and 4, carriers, given that their provisions are adjust. respectively. Both options result in Option 4 (with a 4.61 drop in more restrictive than under the 2003 lower net incomes than for Option 2 productivity) shows impacts that are in- rule. However, the severity of the (and consequently, lower than in the between the two extremes. Results for baseline) in all size categories. impacts is directly related to the Option 4 are found in Figure 24. magnitude of the drop in labor Profitability as a share of revenue is Figures 22 through 24 show the productivities considered for the three projected to decrease between 0.89 and impacts on each size category for two options. For instance, the financial 1.58 percent across most size classes. alternatives over the baseline. ‘‘Without impacts under Option 2 (today’s rule) The results in terms of profit impacts Revenue Increase’’ implies carriers bear are the least adverse, compared with relative to revenues under Option 2 the increased costs due to the rule those estimated under the other seem to suggest very small impacts for change without being able to pass the alternative options (3 and 4). For firms across the wide range of size cost increases through to their additional perspective, however, carrier categories examined, including both customers through trucking rate hikes profitability under the options is also large and small entities. The threshold (i.e., zero pass-through). This scenario shown under the state-of-the-world that for impacts considered to be of would be true in the very short run. In existed before the 2003 rules came into moderate size is generally taken to be the longer run, however, carriers are effect. This state is referred to as the one percent of revenues, and the average expected to be able to increase their ‘‘Pre-2003 Situation.’’ Comparing the impacts of Option 2 (today’s rule) fall rates in line with industry-wide impacts of the new options to this far below that magnitude. It should also increases in costs. This scenario is situation may be more realistic in some be noted that even though Option 2 cases since it is unclear if all carriers modeled as ‘‘With Revenue Increase’’ would result in slightly lower which assumes that carriers are able to have had enough time to adjust to the profitability than Option 1, carriers 2003 HOS rule. increase their rates, under the would generally earn higher net assumption of constant market demand, With regard to the specific impacts of revenues than they were under the pre- each Alternative Option, Option 2 (with in order to completely offset the 2003 rules, only a short time ago. industry-wide average cost increase a 0.042 percent drop in labor Variability in impacts within each estimated for the rule options (i.e., productivity industry-wide, as size category, however, means larger complete pass-through). These two described in the RIA summary, and a impacts for some small entities are 0.1 percent drop for the for-hire sector, possible. The carriers that are currently extremes of the pass-through which was analyzed in detail) shows the taking advantage of the split break assumption were modeled in order to least severe adverse impacts. As seen in periods to an above-average degree, for provide a range for the level of impacts Figure 22, profitability as a share of example, will tend to lose more under associated with the new options and to revenue is projected to decrease by a the options that do not permit its use. distinguish between short- and long- tenth of one percent or less, relative to Even for these relatively few carriers, term impacts. In addition to showing Option 1 (2003 rule). These very minor however, the average impacts are likely impacts on net income, the figures impacts should be reduced slightly as to be well below 1 percent. indicate the drop in profit as a prices adjust. percentage of operating revenue for each Option 3 (with a 7.12 percent drop in Results by Option alternative relative to Option 1. Those labor productivity) has the most severe Option 2 adversely impacts the net relative changes are shown above each impacts on carriers, and could eliminate income earned by carriers in almost bar in all three Figures.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50058 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.003 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50059
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.004 50060 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Differential Impacts on Small Carriers: categories with lower rates of profit in adjust to the 2003 rule may therefore Results by Size Categories the baseline are naturally somewhat experience an improvement in their more vulnerable to a similar change in This section describes impacts on situations. productivity. carriers for the smaller size categories. Note that the ‘‘net income’’ measured The discussion is divided into four Owner Operators with One Tractor by this study for owner/operators is parts: one for owner operators; one for The smallest size category, one slightly different in meaning than that firms with 2–9 tractors; one for firms tractor, is examined in order to evaluate for firms in other size categories due to with 10–19 tractors and the last for the impacts on individual owner/operators. treatment of wages. For owner/ larger size categories. As expected, the Figure 25 shows the change in net operators, net income is the same as percentage changes in net income income for these owner/operators under take-home pay (analogous to wages). indicate that the impacts are less in the each option. These impacts are The owner/operator ‘‘takes home’’ any longer run when carriers can increase presented relative to Option 1. The pre- residual after paying all other expenses. their revenue by passing the industry- 2003 situation is shown as well. In contrast, the net income of larger wide cost increases on to their Owner/operators with one tractor firms subtracts out wages along with customers. would earn virtually the same under other expenses. Due to this difference, Impacts on the profitability of certain Option 2 as Option 1, and less under the the net income calculated for owner/ firm sizes appear to be greater than the other two options. Net income is operators is not directly comparable to impacts on others. This pattern is actually higher under Option 2 than in that calculated for other firm sizes, and closely tied to the differences in the pre-2003 situation. Owner-operators it tends to be higher when stated as a baseline profitability levels: those size that had not had sufficient time to percent of revenue.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.005 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50061
Firms With 2–9 Tractors hire additional drivers in order to insignificant degree under Option 2, maintain their current business under most likely due to slight changes in Firms operating between 2 and 9 all three options. Firms in the 2–9 driver wages. They would be adversely tractors, like others toward the smaller tractor category, however, do not have impacted under Options 3 and 4 relative end of the size distribution, may have enough current business to justify hiring to Option 1, because of their inability to less flexibility to respond to a change in another full-time driver. They would, meet existing orders and the loss of the the hours of service rules. Whereas optimally, hire a fraction of a driver in corresponding revenues. Near-term larger firms can hire or lay off drivers in response to the new options. Assuming impacts (‘‘without revenue increase’’— order to optimize their operations this is not possible, these firms must i.e., before prices for trucking services relative to any of the options, firms with instead sacrifice some of their business, adjust to the cost increases) are higher 2–9 tractors are too small to do this in 11 at least in the near term. than the long-run impacts (‘‘with optimal fashion, at least in the near As shown in Figure 26, carriers in this revenue increase’’). term.10 As discussed above, firms must size category are expected to gain to an
10 To a lesser extent this also is true for firms in impacts are similar to (but smaller than) those of 11 In the longer term, firms should be able to the 10–19 tractor size category. Firms with 10–19 firms in larger size categories. adjust their operations to a greater extent in order tractors have enough flexibility, however, that their to fill capacity, so the impacts on these firms should tend to diminish over time.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.006 50062 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Firms With 10–19 Tractors size category. Again, as shown in Figure income for this size category under 27, there is almost no impact under Options 3 and 4 appears to be greater Impacts for the 10–19 tractor size Option 2. Due to their lower baseline than the 2–9 size category. category differ somewhat from the 2–9 profitability, the percentage drop in net
Other Size Categories (20–50 Tractors, categories. These impacts appear less than under Option 1 (except carriers in 51–145 Tractors, 146–550 Tractors, severe if carriers are assumed to have an the 51–145 size category, where they are 550+ Tractors) opportunity to increase their rates to virtually the same), many are likely to Figures 28 through 31 summarize the offset the higher costs of the new rules. be better off than they were under the expected change in profitability for Moreover, though the carriers are pre-2003 rules. firms in the remaining four size generally less well off under Option 2 BILLING CODE 4910–EX–P
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.007 ER25AU05.008 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50063
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.009 ER25AU05.010 50064 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
BILLING CODE 4910–EX–C etc.), adverse financial impacts are on small entities and certifies that this Conclusions estimated to be 0.1 percent or less final rule does not have a significant compared to Option 1 (the 2003 rule). economic impact on a substantial As discussed earlier in this section, And when compared to the pre-2003 number of small entities. Option 2 (today’s rule) will have rule, many of these carriers will earn K.3. Unfunded Mandates Reform Act of minimal effects on the net income levels higher net revenues. Therefore, the 1995 of typical entities in each of the size FMCSA Administrator, in compliance categories of small entities examined. with the Regulatory Flexibility Act (5 The Unfunded Mandates Reform Act Specifically, for small firms in each size U.S.C. 601–612), has considered the of 1995 requires each agency to assess group (i.e., 2–9 tractors, 10–19 tractors, economic impacts of these requirements the effects of its regulatory actions on
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 ER25AU05.011 ER25AU05.012 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50065
State, local, and tribal governments and making on all of its actions, including apply to interstate motor carriers. About the private sector. Any agency rulemaking. 60% of the States would retain State promulgating a final rule resulting in a In its EA, FMCSA evaluated three rules identical to FMCSA’s 2003 HOS Federal mandate requiring expenditure alternatives to a baseline (No Action rule; they would not be required to by a State, local or tribal government or Alternative) and estimated the impacts change those rules for three full years by the private sector of $120.7 million 12 relative to that baseline. The options after the new Federal regulatory or more in any one year must prepare include: situation took effect. Since these States • a written statement incorporating No Action Alternative (Option 1): are scattered randomly throughout the Continue to Implement 2003 HOS Rule. various assessments, estimates, and • country, State HOS rules identical to descriptions that are delineated in the Alternative 1 (Option 2): Proposed FMCSA’s 2003 HOS rule would Act. In light of the fact that today’s rule Action or Today’s rule, as described in probably remain applicable to most would not cost State, local, or tribal this preamble. long-haul truckers most of the time for • Alternative 2 (Option 3): No more governments, or motor carriers, more a considerable period, perhaps for years. than 10 hours of driving within each 14- FMCSA has therefore concluded that than $120.7 million in a given year, hour on duty period, elimination of the FMCSA is not required to prepare a split sleeper berth option, and a the ‘‘no-action’’ alternative really statement addressing each of the requirement of 58 consecutive hours off amounts to retention of the 2003 HOS elements outlined in the Unfunded duty before restarting one’s 60/70 hour rule. Mandates Reform Act of 1995. clock within each seven or eight-day FMCSA regulations for implementing K.4. National Environmental Policy Act duty period. NEPA and CEQ NEPA regulations • Alternative 3 (Option 4): Same as require a comparison of the potential FMCSA has prepared an Option 3, but with a requirement of 44 impacts of each Alternative. Figure 32 environmental assessment (EA) in consecutive hours off duty before summarizes the impacts for each accordance with the National restarting one’s 60/70 hour on duty Alternative across each of the impact Environmental Policy Act of 1969 clock within each seven or eight-day areas. Most impacts are evaluated in (NEPA) (42 U.S.C. 4321, et seq., as duty period. terms of the percent change from the amended), the FMCSA’s NEPA Each option is discussed in more detail status quo (No Action Alternative). Implementing Procedures and Policy for in the EA that accompanies today’s rule. ‘‘Minor’’ is defined here as a 0 to 1 Considering Environmental Impacts As background for the ‘‘No Action percent change from the status quo (0 ±1 (FMCSA Order 5610.1),13 the Council Alternative,’’ if FMCSA did not adopt a percent), while ‘‘Moderate’’ is defined on Environmental Quality Regulations new rule before September 30, 2005, as a ±10 percent or greater change. Note (CEQ) regulations implementing NEPA when the provisions enacted by Sec. 7(f) that these impacts are measured as a (40 CFR parts 1500–1508), the DOT of the Surface Transportation Extension change from the No Action Alternative. Order 5610.C (September 18, 1979, as Act of 2004, Part V, expire, the 2003 As shown in Figure 32, none of the amended on July 13, 1982 and July 30, HOS rule would still remain in effect at Alternatives would have a significant 1985), entitled ‘‘Procedures for the State level for a considerable period adverse impact on the human Considering Environmental Impacts,’’ of time (see Environmental Assessment, environment, and all of the Alternatives and other pertinent environmental Section 2.1) due to the Motor Carrier would have beneficial impacts in some regulations, Executive Orders, statutes, Safety Assistance Program (MCSAP). impact areas. None of the Alternatives and laws for consideration of Under MCSAP, States that accept funds stands out as environmentally environmental impacts of FMCSA (i.e., all of the States) have three years preferable, when compared to the other actions. The Agency relies on all of the to adopt regulations ‘‘compatible’’ with Alternatives. For details of the findings authorities noted above to ensure that it the Federal Motor Carrier Safety of this analysis, please see the EA actively incorporates environmental Regulations. ‘‘Compatible’’ means performed for this rulemaking located in considerations into informed decision- ‘‘identical’’ for State regulations that the docket. FIGURE 32.—COMPARISON OF ALTERNATIVES
Impact area No action Alt 1 Alt 2 Alt 3
Air Pollutant—NAAQS ...... No Change ...... Minor Benefit ...... Minor Benefit (0.16% Minor Benefit (0.12% decrease). decrease). Air Pollutant—Air Toxics ...... No Change ...... Minor impact ...... Minor impact (0.16% Minor impact (0.10% increase). increase). Air Pollutant—Climate Change ...... No Change ...... Minor decrease in Minor decrease in Minor decrease in CO2. CO2. CO2. Public Health ...... No Change ...... Minor Benefit ...... Minor Benefit ...... Minor Benefit. Noise ...... No Change ...... No Impact ...... No Impact ...... No Impact. HM Transportation ...... No Change ...... Minor Benefit ...... Minor Benefit ...... Minor Benefit. Solid Waste Disposal ...... No Change ...... Minor Benefit ...... Minor Benefit ...... Minor Benefit. Safety ...... No Change ...... Minor Benefit ...... Minor Benefit ...... Minor Benefit. Transportation Energy Consumption ...... No Change ...... No benefit ...... Minor Benefit (0.27% Minor Benefit (0.18% decrease). decrease). Land Consumption ...... No Change ...... Minor Induced Impact Minor Induced (1,574 Minor Induced Impact Impact (5.3 acres). acres). (1,019 acres). Section 4(f) ...... No Change ...... No Impact ...... No Impact ...... No Impact.
12 USDOT policy requires an unfunded mandates 13 FMCSA’s environmental procedures were Considering Environmental Impacts, and effective analysis for rules requiring an expenditure of published on March 1, 2004 (69 FR 9680), FMCSA on March 30, 2004. $120.7 million or more, which is $100 million in Order 5610.1, National Environmental Policy Act 1995 dollars inflated to 2003 dollars. Implementing Procedures and Policy for
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50066 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
FIGURE 32.—COMPARISON OF ALTERNATIVES—Continued
Impact area No action Alt 1 Alt 2 Alt 3
Endangered Species ...... No Change ...... No Impact ...... No Impact ...... No Impact. Wetlands ...... No Change ...... No Impact ...... No Impact ...... No Impact. Historic Properties ...... No Change ...... No Impact ...... No Impact ...... No Impact.
As shown in the Environmental implemented in today’s rule, which with revising the hours of service Assessment that accompanies today’s provides significant paperwork relief to regulations. Environmental justice rule, none of the alternatives considered portions of the short-haul industry. The issues would be raised if there were would have a significant adverse impact RIA prepared for today’s final rule ‘‘disproportionate’’ and ‘‘high and on the human environment. estimated that at least 240,000 adverse impact’’ on minority or low Subsequently, FMCSA has determined commercial drivers operating in the income populations. The FMCSA that today’s rule will not significantly short-haul sector would be relieved of determined through the analyses affect the quality of the human the logbook filing required. As such, the documented in the Environmental environment and that a comprehensive Agency estimates that at least 239,400 Assessment in the docket prepared for Environmental Impact Statement is not commercial drivers, or roughly six this final rule that there were no high required. The EA for today’s rule, as percent of the drivers previously and adverse impacts associated with well as the Agency’s finding of no required to file RODS, would be any of the alternatives. In addition, significant impact (FONSI), are relieved of the logbook filing FMCSA analyzed the demographic contained in the docket. requirement as a result of today’s rule. makeup of the trucking industry potentially affected by the alternatives K.5. Paperwork Reduction Act As a result of these changes, the total RODS burden will be reduced by and determined that there was no Under the Paperwork Reduction Act approximately 7 million hours annually. disproportionate impact on minority or of 1995 (PRA) (44 U.S.C. 3501 et seq.), A supporting statement reflecting this low-income populations. Low-income Federal agencies must obtain approval assessment has been submitted to OMB. and minority populations historically from OMB for each collection of You may submit comments on this have been and generally continue to be information they conduct, sponsor, or information collection burden (OMB underrepresented in the trucking require through regulations. FMCSA has Control Number 2126–0001) directly to occupation. Given this level of low- determined that this final rule will OMB. OMB must receive your income and minority representation and affect a currently approved information comments by October 24, 2005. You particularly in view of the previously clearance for OMB Control Number must mail or hand deliver your referenced conclusion that there were 2126–0001, titled ‘‘Hours of Service of comments to: Attention: Desk Officer for no disproportionate and high or adverse Drivers Regulation.’’ OMB approved this the Department of Transportation, impacts on any population sector information collection on April 29, Docket Library, Office of Information associated with any of the alternatives 2003, at a revised total of 160,376,492 and Regulatory Affairs, Office of considered in this rule, we ratify our burden hours, with an expiration date of Management and Budget, Room 10102, preliminary conclusion in the NPRM April 30, 2006. The PRA requires 725 17th Street, NW., Washington, DC that there are no environmental justice agencies to provide a specific, 20503. issues associated with revising the objectively supported estimate of hours-of-service regulations. The burden that will be imposed by the K.6. Executive Order 13211 (Energy Environmental Assessment provides a information collection. See 5 CFR Supply, Distribution, or Use) detailed analysis that was used to reach 1320.8. We have analyzed this action under this conclusion. The paperwork burden imposed by Executive Order 13211, Actions K.8. Executive Order 13045 (Protection FMCSA’s record-of-duty-status (RODS) Concerning Regulations That of Children) requirement is set forth at 49 CFR 395.8. Significantly Affect Energy Supply, The Agency estimates that the Distribution, or Use. As a part of the Executive Order 13045, ‘‘Protection of revisions to Part 395 in this final rule environmental assessment, the FMCSA Children from Environmental Health will eliminate the RODS paperwork analyzed the three alternatives Risks and Safety Risks’’ (April 23, 1997, burden for at least 239,400 commercial discussed earlier in today’s final rule. 62 FR 19885), requires that agencies drivers previously required to complete The FMCSA found none of these effects issuing ‘‘economically significant’’ rules and maintain the RODS, or what is to be significant. that also concern an environmental commonly referred to as a ‘‘logbook.’’ In accordance with Executive Order health or safety risk that an Agency has Specifically, today’s final rule 13211, the Agency prepared a Statement reason to state may disproportionately eliminates the split sleeper-berth of Energy Effects for this final rule. A affect children, must include an provision, which the Agency estimated copy of this statement is in the evaluation of the environmental health would result in the hiring of 600 Appendix to the environmental and safety effects of the regulation on additional drivers by the long-haul and assessment. children. Section 5 of Executive Order regional sector of the industry in order 13045 directs an Agency to submit for to provide the same level of K.7. Executive Order 12898 a ‘‘covered regulatory action’’ an transportation service as that generated (Environmental Justice) evaluation of its environmental health prior to today’s final rule. All of these The FMCSA evaluated the or safety effects on children. new drivers would be required to file environmental effects of the Proposed The FMCSA evaluated the projected RODS, as they all would operate in the Action and alternatives in accordance effects of this final rule and determined regional and long-haul sector. However, with Executive Order 12898 and that there would be no environmental this increase is more than offset by the determined that there were no health risks or safety risks to children. new short-haul regulatory regime environmental justice issues associated This rule does not substantially impact
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50067
the total amount of freight being Efficiency: Diurnal Rhythm and Loss of Medicine, 2nd Edition, Chapter 5, 1994, transported nationally and thus does not Sleep, 1972, pp. 199–215. pp. 50–67. significantly impact overall air quality Alvarez, G.G., and Ayas, N.T., ‘‘The Impact Bonnet, M.H. and Arand, D.L., ‘‘We are due to fuel emissions. This rule will, of Daily Sleep Duration on Health: A Chronically Sleep Deprived,’’ Sleep, Vol. Review of the Literature,’’ Progress in 18, No. 10, 1995, pp. 908–911. however, reduce the safety risk posed by Cardiovascular Nursing, Vol.19, No. 2, Boshuizen, H.C., Bongers, P.M., and Hulshof, tired, drowsy, or fatigued drivers of 2004, pp. 56–59. C.T.J., ‘‘Self-Reported Back Pain in CMVs. These safety risk improvements Ayas, N.T., White, D.P., Al-Delaimy, W.K., Tractor Drivers Exposed to Whole-Body would accrue to children and adults Manson, J.E., Stampfer, M.J., Speizer, Vibration,’’ International Archives of equally. F.E., Patel S., and Hu, F.B., ‘‘A Occupational and Environmental Prospective Study of Self-Reported Sleep Health, Vol. 62, 1990, pp. 109–115. K.9. Executive Order 12988 (Civil Justice Duration and Incident Diabetes in Brignell, J., ‘‘Relative Risk,’’ accessed at Reform) Women,’’ Diabetes Care, Vol. 26, No. 2, ¨ www.numberwatch.co.uk/RR.htm¨ , 2005. 2003, pp. 380–384. This action meets applicable Bruske-Hohlfeld, I., Mohner, M., Ahrens, W., Bailey, C.R., Somers, J.H., and Steenland, K., Pohlabeln,¨ H., Heinrich, J., Kreuzer, M., standards in sections 3(a) and 3(b)(2) of ‘‘Exposure to Diesel Exhaust in the Jockel, K.H., and Wichmann, H.E., ‘‘Lung Executive Order 12988, Civil Justice International Brotherhood of Teamsters Cancer Risk in Male Workers Reform, to minimize litigation, 1950–1990,’’ AIHA Journal, Vol. 64, No. Occupationally Exposed to Diesel Motor eliminate ambiguity, and reduce 4, July/August 2003, pp. 472–479. Emissions in Germany,’’ American burden. Balkin, T., Thorne, D., Sing, H., Thomas, M., Journal of Industrial Medicine, Vol. 36, Redmond, D., Wesensten, N., Williams, 1999, pp. 405–414. K.10. Executive Order 12630 (Taking of J., Hall, S., and Belenky, G., ‘‘Effects of Bunn, W.B., Valberg, P.A., Slavin, T.J., and Private Property) Sleep Schedules on Commercial Motor Lapin, C.A., ‘‘What is New in Diesel,’’ Vehicle Driver Performance,’’ 2000. This rule will not effect a taking of International Archives of Occupational Barton, J., and Folkard, S., ‘‘Advancing and Environmental Health, Vol. 75 private property or otherwise have Versus Delaying Shift Systems,’’ (Supplemental), 2002, pp. S122–S132. taking implications under Executive Ergonomics, Vol. 36, Nos. 1–3, 1993, pp. Burks, S.V., ‘‘A Survey of Private Fleets on Order 12630, Governmental Actions and 59–64. their Use of the Three New ‘Hours of Interference with Constitutionally Belenky, G.L., Krueger, G.P., Balkin, T.J., Service Features’’’, September 2004. Protected Property Rights. Headley, D.B., and Solick, R.E., ‘‘The Caldwell, J.A., Jones, R.W., Caldwell, J.L., Effects on Continuous Operations on Colon, J.A., Pegues, A., Iverson, L., Soldier and Unit Performance,’’ 1987. K.11. Executive Order 13132 Roberts, K.A., Ramspott, S., Sprenger, Belenky, G., Penetar, D.M., Thorne, D., Popp, (Federalism) W.D., and Gardner, S.J., ‘‘The Efficacy of K., Leu, J., Thomas, M., Sing, H., Balkin, Hypnotic-Induced Prophylactic Naps for This action has been analyzed in T., Wesensten, N., and Redmond, D., the Maintenance of Alertness and ‘‘The Effects of Sleep Deprivation on accordance with the principles and Performance in Sustained Operations,’’ criteria contained in Executive Order Performance During Continuous Combat Operations,’’ Walter Reed Army Institute 1997. 13132. The FMCSA has determined this Campbell, K.L., and Belzer, M.H., ‘‘Hours of rule does not have a substantial direct of Research, Department of Behavioral Biology, Wash., DC, 1994, pp. 127–135. Service Regulatory Evaluation Analytical effect on States, nor would it limit the Belenky, G., McKnight, A.J., Mitler, M.M., Support, Task 1: Baseline Risk Estimates policymaking discretion of the States. Smiley, A., Tijerina, L., Waller, P.F., and Carrier Experience,’’ March 2000. Nothing in this document preempts any Wierwille, W.W., and Willis, D.K., Campbell, K.L, ‘‘Estimates of the Prevalence State law or regulation. A State that fails ‘‘Potential Hours-of-Service Regulations and Risk of Fatigue in Fatal Accidents to adopt the new amendments in this for Commercial Drivers: Report of the Involving Medium and Heavy Trucks,’’ 2005. final rule within three years of the Expert Panel,’’ 1998. Belenky, G., Wesensten, N.J., Thorne, D.R., Cann, A.P., Salmoni A.W., and Eger, T.R., effective date of this rule, will be ‘‘Predictors of Whole-Body Vibration deemed to have incompatible Thomas M.L., Sing, H.C., Redmond, D.P., Russo, M.B., and Balkin T.J., ‘‘Patterns of Exposure Experienced by Highway regulations and will not be eligible for Performance Degradation and Transport Truck Operators,’’ Basic Program nor Incentive Funds in Restoration During Sleep Restriction and Ergonomics, Vol. 47, No.13, October accordance with 49 CFR 350.335(b). Subsequent Recovery: A Sleep Dose- 2004, pp. 1432–1453. Carskadon, M.A., and Dement, W.C., K.12. Executive Order 12372 Response Study,’’ Journal of Sleep Research, Vol. 12, 2003, pp. 1–12. ‘‘Normal Human Sleep: An Overview,’’ (Intergovernmental Review) Bhatia, R., Lopipero, P., and Smith, A.H., Principles and Practice of Sleep Catalog of Federal Domestic ‘‘Diesel Exhaust Exposure and Lung Medicine, 4th edition, 2005, pp. 13–23. Cancer,’’ Epidemiology, Vol. 9, No.1, Caruso, C.C., Hitchcock, E.M., Dick, R.B., Assistance Program Number or 20.217, Russo, J.M., and Schmit, J.M., ‘‘Overtime Motor Carrier Safety. The regulations January 1998, pp. 84–91. Bigert, C., Gustavsson, P.,´ Hallqvist, J., and Extended Work Shifts: Recent implementing Executive Order 12372 Hogstedt, C., Lewne, M.,´ Plato, N., Findings on Illnesses, Injuries, and regarding intergovernmental Reuterwall, C., and Scheele, P., Health Behaviors,’’ April 2004. consultation on Federal programs and ‘‘Myocardial Infarction Among Chen, J.C., Dennerlein, J.T., Shih, T.S., Chen, activities do not apply to this program. Professional Drivers,’’ Epidemiology, C.J., Cheng, Y., Chang, W.P., Ryan, L.M., Vol. 14, No. 3, May 2003, pp. 333–339. and Christiani, D.C., ‘‘Knee Pain and L. List of References Bigert, C., Klerdal, K., Hammar, N., Hallqvist, Driving Duration: A Secondary Analysis Abrams, C., Shultz, T., and Wylie, C.D., J., and Gustavsson, P., ‘‘Time Trends In of the Taxi Drivers’’ Health Study,’’ ‘‘Commercial Motor Vehicle Driver the Incidence of Myocardial Infarction American Journal of Public Health, Vol. Fatigue, Alertness, and Countermeasures Among Professional Drivers in 94, No. 4, April 2004, pp. 575–581. ˚ Survey,’’ 1997. Stockholm 1977–96,’’ Occupational Colt, J.S., Baris D., Stewart, P., Schned, A.R., Akerstedt, T., ‘‘Readily Available Environmental Medicine, Vol. 61, 2004, Heaney, J.A., Mott, L.A., Silverman, D., Countermeasures Against Operator pp. 987–991. and Karagas, M., ‘‘Occupation and Fatigue,’’ International Conference Boffetta, P., and Silverman, D.T., ‘‘A Meta- Bladder Cancer Risk in a Population- Proceedings, Managing Fatigue in Analysis of Bladder Cancer and Diesel Based Case-Control Study in New Transportation, April 1997, pp. 105–112. Exhaust Exposure,’’ Epidemiology, Vol. Hampshire,’’ Cancer Causes and Control, Alluisi, E.A., ‘‘Influence of Work-Rest 12, No.1, January 2001, pp. 125–130. Vol. 15, 2004, pp. 759–769. Scheduling and Sleep Loss on Sustained Bonnet, M.H., ‘‘Sleep Deprivation,’’ Czeisler, C.A., Moore-Ede, M.C., Coleman, Performance,’’ Aspects of Human Principles and Practices of Sleep R.M., ‘‘Rotating Shift Work Schedules
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50068 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
that Disrupt Sleep are Improved by Epidemiology Studies on Chronic Health General Psychiatry, Vol. 59, February Applying Circadian Principles,’’ Science, Effects of Diesel Exhaust,’’ Health Effects 2002, pp. 131–136. New Series, Vol. 217, Issue 4558, July Institute, Communication 10, Synthesis Leonard, C., Fanning, N., Attwood, J., and 1982, pp. 460–463. Report, April 2003, pp. 17–25.¨ Buckley, M., ‘‘The Effect of Fatigue, Dinges, D.F., and Kribbs, N.B., ‘‘Performing Guo, J., Kauppinen,¨ T., Kyyronen, P., Sleep Deprivation and Onerous Working While Sleepy: Effects of Experimentally- Heikkila, P., Lindbohm, M.L., and Hours on the Physical and Mental Induced Sleepiness,’’ Sleep, Sleepiness Pukkala, E., ‘‘Risk of Esophageal, Wellbeing of Pre-Registration House and Performance, Chapter 4, 1991, pp. Ovarian, Testicular, Kidney and Bladder Officers,’’ Irish Journal of Medical 98–128. Cancers and Leukemia Among Finnish Science, Vol. 167, No. 1, January, Dinges, D.F., Pack, F., Williams, K., Gillen, Workers Exposed to Diesel or Gasoline February, March 1998, pp. 22–25. K.A., Powell, J.W., Ott, G.E., Aptowicz, Engine Exhaust,’’ International Journal Lin, T.D., Jovanis, P.P., and Yang, C.Z., C., and Pack, A.I., ‘‘Cumulative of Cancer, 111, 2004, pp. 286–292. ‘‘Modeling the Safety of Truck Driver Sleepiness, Mood Disturbance, and Hanowski, R.J., Wierwille, W.W., Gellatly, Service Hours Using Time-Dependent Psychomotor Vigilance Performance A.W., Early, N., and Dingus, T.A., Logistic Regression,’’ Transportation Decrements During a Week of Sleep ‘‘Impact of Local/Short Haul Operations Research Record 1407, Washington, D.C., Restricted to 4–5 Hours per Night,’’ on Driver Fatigue, Task I: Focus Group January 1993, pp. 1–10. Sleep, Vol. 20, No. 4, 1997, pp. 267–277. Summary and Analysis’’ 1998. Lings, S., and Leboeuf-Yde, C., ‘‘Whole-Body Dinges, D.F., Maislin, M.S., Krueger, G.A., Hanowski, R.J., Wierwille, W.W., Gellatly, Vibration and Low Back Pain: A and Redmond, D.P., ‘‘Pilot Test of A.W., Early, N., and Dingus, T.A., Systematic, Critical Review of the Fatigue Management Technologies,’’ ‘‘Impact of Local/Short Haul Operations Epidemiological Literature 1992–1999,’’ April 2005. on Driver Fatigue, Final Report’’ 2000. International Archives of Occupational Dingus, T., Neale, V., Garness, S., Hanowski, Hanowski, R.J., Dingus, T.A., Sudweeks, J.D., and Environmental Health, Vol. 73, R., Keisler, A., Lee, S., Perez, M., Olson, R.L., and Fumero, M.C., 2000, pp. 290–297. Robinson, G., Belz, S., Casali, J., Pace- ‘‘Assessment of the Revised Hours-of- Linklater, D.R., ‘‘Fatigue and Long Distance Schott, E., Stickgold, R., and Hobson, Service Regulations: Comparison of the Truck Drivers,’’ Melbourne: Australian J.A., ‘‘Impact of Sleeper Berth Usage on 10th and 11th Hour of Driving Using Road Research Board of Proceedings, Driver Fatigue, Final Project Report,’’ Critical Incident Data and Measuring 1980. July 2002. Sleep Quantity Using Actigraphy Data,’’ Liu, Y., and Tanaka, H., ‘‘Overtime Work, Environmental Protection Agency (EPA), Virginia Tech Transportation Institute, Insufficient Sleep, and Risk of Non-Fatal ‘‘Health Assessment Document for Diesel June 2005. Acute Myocardial Infarction in Japanese Engine Exhaust,’’ Prepared by the Hasler, G., Buysse, D.J., Klaghofer, R., Men,’’ Occupational and Environmental National Center for Environmental Gamma,¨ A., Ajdacic, V., Eich, D., Medicine, Vol. 59, 2002, pp. 447–451. Assessment, Washington, DC, for the Rossler, W., and Angst, J., ‘‘The Mackie, R.R., and Miller, J.C., ‘‘Effects of Office of Transportation and Air Quality; Association Between Short Sleep Hours of Service Regularity of EPA/600/8–90/057F, May 2002. Duration and Obesity in Young Adults: Schedules, and Cargo Loading on Truck Environmental Protection Agency (EPA), A 13-Year Prospective Study,’’ Sleep, and Bus Driver Fatigue,’’ 1978. ‘‘National Annual Air Emissions for Mobile Sources,’’ January 2005. Vol. 27, No. 4, 2004, pp. 661–666. Magnusson, M.L., Pope, M.H., Wilder, D.G., Environmental Protection Agency’s (EPA) Hayashi, M., Watanabe, M., and Hori, T., and Areskoug, B., ‘‘Are Occupational National Mobile Inventory Model ‘‘The Effects of a 20 Minute Nap in the Drivers at an Increased Risk for (NMIM), ‘‘A Consolidated Emissions Mid-Afternoon on Mood, Performance Developing Musculoskeletal Disorders?,’’ Modeling System for MOBILE6 and and EEG Activity,’’ Clinical Spine, Vol. 21, No. 6, March 1996, pp. NONROAD,’’ EPA420–R–05–003, http:// Neurophysiology, Vol. 110, 1999, pp. 710–717. www.epa.gov/otaq/nmim.htm, March 272–279. Maislin, G., Rogers, N.L., Price, N.J., 2005. Hertz, R.P., ‘‘Tractor-Trailer Driver Fatality: Mullington, J.M., Szuba, M.P., Van Feyer, A.M., Williamson, A., and Friswell, R., The Role of Nonconsecutive Rest in a Dongen, H. P.A., and Dinges, D. F., ‘‘Balancing Work and Rest to Combat Sleeper Berth,’’ Insurance Institute for ‘‘Response Surface Modeling of the Driver Fatigue: An Investigation of Two- Highway Safety, October 1987 (Revised Effects of Chronic Sleep Restriction With Up Driving in Australia,’’ Accident February 1988).˚ and Without Diurnal Naps,’’ 2001. Analysis and Prevention, Vol. 29, No. 4, Ingre, M., and Akerstedt, T., ‘‘Effect of Massie, D.L., Blower, D., and Campbell, K.L., 1997, pp. 541–553. Accumulated Night Work During the ‘‘Short-Haul Trucks and Driver Fatigue,’’ FMCSA Field Survey Report, Working Lifetime, on Subjective Health September 1997. ‘‘Implementation & Use of the Hours-of- and Sleep in Monozygotic Twins’’, Matsumoto, K., and Harada, M., ‘‘The Effect Service Regulations for 2003 Final Rule,’’ Journal of Sleep Research, Vol. 13, 2004, of Night-Time Naps on Recovery from June 2005. pp. 45–48. Fatigue Following Night Work, Gander, P.H., Merry, A., Millar, M.M., and Jansen, N.W.H., Kant, I., van Amelsvoort, Ergonomics, Vol. 37, No. 5, 1994, pp. Weller, J. ‘‘Hours of Work and Fatigue- L.G.P.M., Nijhuis, F.J.N., and van den 899–907. Related Error: A survey of New Zealand Brandt, P.A., ‘‘Need For Recovery from McCartt, A.T., Hammer, M.C., Fuller, S.Z., Anaesthetists,’’ Anaesthesia and Work: Evaluating Short-Term Effects of Kosa, M., and Meherka, Y., ‘‘Study of Intensive Care, Vol. 28, No. 2, April Working Hours, Patterns and Fatigue-Related Driving Among Long- 2000, pp. 178–183. Schedules,’’ Ergonomics, Vol. 46, No. 7, Distance Truck Drivers in New York Garbarino, S., Mascialino, B., Penco, M.A., June 2003, pp. 664–680. State,’’ 1997, Revised 1998. Squarcia, S., De Carli, F., Nobili, L., Jovanis, P.P, Kaneko, T., and Lin, T., Mitler, M.M., Miller, J.C., Lipsitz, J.J., Walsh, Beelke, M., Cuomo, G., and Ferrillo, F., ‘‘Exploratory Analysis of Motor Carrier J.K., and Wylie, C.D., ‘‘The Sleep of ‘‘Professional Shift-Work Drivers who Accident Risk and Daily Driving Long-Haul Truck Drivers,’’ The New Adopt Prophylactic Naps can Reduce the Patterns,’’ Transportation Research England Journal of Medicine, Vol. 337, Risk of Car Accidents During Night Group, University of California at Davis, No.11, 1997, pp. 755–761. Work,’’ Sleep, Vol. 27, No. 7, 2004, pp. 1991. Miyamoto, M., Shirai, Y., Nakayama, Y., 1295–1302. Jovanis, P.P., Park, S–W., Gross, F., and Gembun, Y., and Kaneda, K., ‘‘An Garshick, E., Smith, T.J., and Laden, F., Chen, K–Y., ‘‘Crash Risk and Hours Epidemiologic Study of Occupational ‘‘Quantitative Assessment of Lung Driving: Interim Report, FMCSA,’’ Low Back Pain in Truck Drivers,’’ Cancer Risk from Diesel Exhaust Pennsylvania Transportation Institute, Journal of Nippon Medical School, Vol. Exposure in the U.S. Trucking Industry: Penn State University, February 2005. 67, No. 3, 2000, pp. 186–190. A Feasibility Study,’’ Health Effects Kripke, D.F., Garfinkel, L., Wingard, D.L., Monk, T.H., ‘‘Shift Work: Basic Principles,’’ Institute, April 2002, pp. 115–150. Klauber, M.R., and Marler, M.R., Principles and Practice of Sleep Garshick, E., Laden, F., Hart, J.E., and Smith, ‘‘Mortality Associated With Sleep Medicine, 4th edition, 2005, pp. 673– T.J., ‘‘Exposure Assessment Issues in Duration and Insomnia,’’ Archives of 679.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50069
Moore-Ede, M., Mitchell, R.E., Heitmann, A., Memorandum Number Three: Pilot Test Suter, A.H., and von Gierke, H.E., ‘‘Noise and Trustschel, U., Aguirre, A., and Results and Marketing Plan,’’ October Public Policy,’’ Ear and Hearing, Vol. 8, Hajamavis, H.R., ‘‘Alertness Assurance 1999. No. 4, 1987, pp. 188–191. in the Canadian Railways,’’ CANALERT Robinson, G.S., Casali, J.G., and Lee, S.E., Taheri, S., Lin, L., Austin, D., Young, T., and ‘‘95, May 1996. ‘‘Role of Driver Hearing in CMV Mignot, E., ‘‘Short Sleep Duration is Morgan, L., Arendt, J., Owens, D., Folkard, S., Operations: An Evaluation of the FHWA Associated with Reduced Leptin, Hampton, S., Deacon, S., English, J., Hearing Requirement,’’ September 1997. Elevated Ghrelin, and Increased Body Ribeiro, D., and Taylor, K., ‘‘Effects of Rogers, A.S., Spencer, M.B., Stone, B.M., and Mass Index,’’ PLOS Medicine, Vol. 1, No. the Endogenous Clock and Sleep Time Nicholson, A.N., ‘‘The Influence of a One 3, December 2004, pp. 210–217. on Melatonin, Insulin, Glucose and Lipid Hour Nap on Performance Overnight,’’ Taylor, P.J., and Pocock, S.J., ‘‘Mortality of Metabolism,’’ Journal of Endocrinology, Ergonomics, Vol. 32, No. 10, 1989, pp. Shift and Day Workers 1956–68,’’ British Vol. 157, 1998, pp. 443–451. 1193–1205. Journal of Industrial Medicine, Vol. 29, Morikawa, Y., Kitaoka-Higashiguchi, K., Rosekind, M.R., Neri, D.F., and Dinges, D.F., 1972, pp. 201–207. Taninoto, C., Hayashi, M., Oketani, R., ‘‘From Laboratory to Flight Deck: Teschke, K., Nicol, A.M., Davies, H., and Ju, Miura, K., Nishijo, M., and Nakagawa, Promoting ¨Operational¨ ˚ Alertness,’’ 1997. S., ‘‘Whole Body Vibration and Back H., ‘‘Effects of Night Work on the Sallinen, M., Harma, M., Akerstedt, T., Rosa, Disorders Among Motor Vehicle Drivers Immune Function Among Nurses,’’ R., and Lillqvist, O., ‘‘Can a Short and Heavy Equipment Operators: A Shiftwork International Newsletter, Vol. Napbreak Improve Alertness in a Night Review of the Scientific Evidence,’’ April 20, No. 2, November 2003, p. 136. Shift?,’’ Shiftwork International 1999. Morrow, P.C., and Crum, M.R., ‘‘Antecedents Newsletter 14, 1997, p. 25. Van der Hulst, M., and Geurts, S., of Fatigue, Close Calls and Crashes Sawyer, R.F., ‘‘The Future of Diesel ‘‘Associations Between Overtime and Among Commercial Motor Vehicle Emissions,’’ Health Effects Institute Psychological Health in High and Low Drivers,’’ Journal of Safety Research, Vol. Communication 10, Synthesis Report, Reward Jobs,’’ Work & Stress, Vol. 15, 35, 2004, pp. 59–69. April 2003, pp. 39–44. No. 3, 2001, pp. 227–240. Nakano, Y., Nakamura, S., Hirata, M., Schneider, C.G., and Hill, L.B, ‘‘Diesel and Van der Hulst, M., ‘‘Long Workhours and Harada, K., Ando, K., Tabuchi, T., Health in America: The Lingering Health,’’ Scandinavian Journal of Work, Matunaga, I., and Oda, H., ‘‘Immune Threat,’’ Clean Air Task Force, Report, Environment & Health, Vol. 29, No. 3, Function and Lifestyle of Taxi Drivers in February 2005, pp. 1–21. 2003, pp. 171–188. Japan,’’ Industrial Health, Vol. 36, 1998, Scott, A.J., ‘‘Shift Work and Health,’’ Journal Van Dongen, H.P.A., Maislin, G., Mullington, pp. 32–39. of Primary Care, Vol. 27, No. 4, J.M., and Dinges, D.F., ‘‘The Cumulative Cost of Additional Wakefulness: Dose- National Transportation Safety Board, December 2000, pp. 1057–1079. Response Effects on Neurobehavioral ‘‘Factors That Affect Fatigue in Heavy Seshagiri, B., ‘‘Occupational Noise Exposure Functions and Sleep Physiology from Truck Accidents,’’ 1996. of Operators of Heavy Trucks,’’ Chronic Sleep Restriction and Total O’Neill, T.R., Krueger, G.P., Van Hemel, S.B., American Industrial Hygiene Association Sleep Deprivation,’’ Sleep, Vol. 26, No. and McGowan, A.L., ‘‘Effects of Journal, Vol. 59, March 1998, pp. 205– 2, 2003, pp. 117–126. 213. Operating Practices on Driver Alertness,’’ Van Dongen, H.P.A., and Dinges, D.F., 1999. Siu, O.L., and Donald, I., ‘‘Psychosocial ‘‘Circadian Rhythms in Sleepiness, Orris, P., Hartman, D.E., Strauss, P., Factors at Work and Workers’ Health in Alertness, and Performance,’’ Principles Anderson, R.J., Collins, J., Knopp, C., Xu, Hong Kong: An Exploratory Study,’’ and Practice of Sleep Medicine, 4th Y., and Melius, J., ‘‘Stress Among Bulletin of the Hong Kong Psychological edition, 2005, pp. 435–443. Package Truck Drivers,’’ American Society, Vol. 34/35, 1995, pp. 30–56. Vgontzas, A.N., Zoumakis, E., Bixler, E.O., Journal of Industrial Medicine, Vol. 31, Smiley, A. and Heslegrave, R., ‘‘A 36-Hour Lin, H.M., Follett, H., Kales, A., and 1997, pp. 202–210. Recovery Period for Truck Drivers: Chrousos, G.P., ‘‘Adverse Effects of Park, J., Kim, Y., Cho, Y., Woo, K.H., Chung, Synopsis of Current Scientific Modest Sleep Restriction on Sleepiness, H.K., Iwasaki, K., Oka, T., Sasaki, T., and Knowledge,’’ Transport Canada, 1997. Performance, and Inflammatory Hisanaga, N., ‘‘Regular Overtime and Soll-Johanning, H., Bach, E., and Jensen, S.S., Cytokines,’’ The Journal of Clinical Cardiovascular Functions,’’ Industrial ‘‘Lung and Bladder Cancer Among Endocrinology & Metabolism, Vol. 89, Health, Vol. 39, 2001, pp. 244–249. Danish Urban Bus Drivers and Tramway No. 5, 2004, pp. 2119–2126. Park, S-W., Mukherjee, A., Gross, F., and Employees: A Nested Case-Control Vioque, J., Torres, A., and Quiles, J., ‘‘Time Jovanis, P.P., ‘‘Safety Implications of Study,’’ Occupational Medicine, Vol. 53, Spent Watching Television, Sleep Multi-Day Driving Schedules for Truck 2003, pp. 25–33. Duration and Obesity in Adults Living in Drivers: Comparison of Field Spiegel, K., Leproult, R., and Van Cauter, Valencia, Spain,’’ International Journal Experiments and Crash Data Analysis,’’ E.V., ‘‘Impact of Sleep Debt on Metabolic of Obesity, Vol. 24, 2000, pp. 1683–1688. Proceedings of the 84th Annual Meeting and Endocrine Function,’’ The Lancet, Williamson, A.M., Feyer, A.M., Friswell, R., of the Transportation Research Board, Vol. 354, October 1999, pp. 1435–1439.´ and Leslie, D., ‘‘Strategies to Combat January 2005, pp. 1–26. Spiegel, K., Leproult, R., L’hermite-Baleriaux, Fatigue in the Long Distance Road Patel, S.R., Ayas, N.T., Malhotral, M.R., M., Copinschi, G., Penev, P.D., and Van Transport Industry: Stage 2 Evaluation of White, D.P., Schernhammer, E.S., Cauter, E., ‘‘Leptin Levels Are Dependent Alternative Work Practices,’’ Australian Speizer, F.E., Stampfer, M.J., and Hu, on Sleep Duration: Relationships with Transport Safety Bureau, 1994, pp. 1– F.B., ‘‘A Prospective Study of Sleep Sympathovagal Balance, Carbohydrate 179. Duration and Mortality Risk in Women,’’ Regulation, Cortisol, and Thyrotropin,’’ Williamson, A.M., Feyer, A.M., and Friswell, Sleep, Vol. 27, No. 3, 2004, pp. 440–444. The Journal of Clinical Endocrinology & R., ‘‘The Impact of Work Practices on Ris, C., ‘‘US EPA’s Health Assessment Metabolism, Vol. 89, No. 11, November Fatigue in Long Distance Truck Drivers,’’ Document for Diesel Engine Exhaust,’’ 2004, pp. 5762–5771. Accident Analysis and Prevention, Vol. Health Effects Institute, Communication Steenland, N.K., Silverman, D.T., and 28, No. 6, 1996, pp. 709–719. 10, Synthesis Report, April 2003, pp. 33– Hornung, R.W., ‘‘Case-Control Study of Williamson, A.M., Feyer, A.M., Friswell, R., 37. Lung Cancer and Truck Driving in the and Finlay-Brown, S., ‘‘Demonstration Roberts, S., and York, J., ‘‘Design, Teamsters Union,’’ American Journal of Project for Fatigue Management Development and Evaluation of Driver Public Health, Vol. 80, No. 6, June 1990, Programs in the Road Transport Wellness Programs, Technical pp. 670–674. Industry: Summary of Findings,’’ Memorandum Number One: Wellness Steenland, K., Deddens, J., and Stayner, L., Australian Safety Transport Bureau, Literature and Programs Review,’’ ‘‘Diesel Exhaust and Lung Cancer in the 2000. September 1997. Trucking Industry: Exposure-Response Wylie, C.D., Shultz, T., Miller, J.C., Mitler, Roberts, S., and York, J., ‘‘Design, Analyses and Risk Assessment,’’ M.M., and Mackie, R.R., ‘‘Commercial Development and Evaluation of Driver American Journal of Industrial Medicine, Motor Vehicle Driver Fatigue and Wellness Programs, Technical Vol. 34, 1998, pp. 220–228. Alertness Study (DFAS),’’ 1996.
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50070 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
Wylie, C.D., Shultz, T., Miller, J.C., and VII. List of Acute and Critical Regulations. § 395.5(b)(1) Requiring or permitting a Mitler, M.M., ‘‘Commercial Motor * * * * * passenger-carrying commercial motor vehicle Vehicle Driver Rest Periods and § 395.1(h)(1)(i) Requiring or permitting a driver to drive after having been on duty Recovery of Performance,’’ Transport property-carrying commercial motor vehicle more than 60 hours in 7 consecutive days Canada, 1997. driver to drive more than 15 hours (Driving (critical). Wylie, D., ‘‘Driver Drowsiness, Length of in Alaska) (critical). § 395.5(b)(2) Requiring or permitting a Prior Sleep Periods and Naps,’’ § 395.1(h)(1)(ii) Requiring or permitting a passenger-carrying commercial motor vehicle Transport Canada, 1998. property-carrying commercial motor vehicle driver to drive after having been on duty more than 70 hours in 8 consecutive days List of Subjects driver to drive after having been on duty 20 hours (Driving in Alaska) (critical). (critical). 49 CFR Part 385 § 395.1(h)(1)(iii) Requiring or permitting a * * * * * property-carrying commercial motor vehicle Administrative practice and driver to drive after having been on duty PART 390—FEDERAL MOTOR procedure, Highway safety, Motor more than 70 hours in 7 consecutive days CARRIER SAFETY REGULATIONS; carriers, Motor vehicle safety, Reporting (Driving in Alaska) (critical). GENERAL and recordkeeping requirements. § 395.1(h)(1)(iv) Requiring or permitting a property-carrying commercial motor vehicle n 3. The authority citation for part 390 is 49 CFR Part 390 driver to drive after having been on duty revised to read as follows: Highway safety, Intermodal more than 80 hours in 8 consecutive days transportation, Motor carriers, Motor (Driving in Alaska) (critical). Authority: 49 U.S.C. 508, 13301, 13902, § 395.1(h)(2)(i) Requiring or permitting a vehicle safety, Reporting and 31133, 31136, 31502, 31504, and sec. 204, passenger-carrying commercial motor vehicle Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C. recordkeeping requirements. driver to drive more than 15 hours (Driving 701 note); sec. 114, Pub. L. 103–311, 108 Stat. 49 CFR Part 395 in Alaska) (critical). 1673, 1677; sec. 217, Pub. L. 106–159, 113 § 395.1(h)(2)(ii) Requiring or permitting a Stat. 1748, 1767; and 49 CFR 1.73. Highway safety, Motor carriers, passenger-carrying commercial motor vehicle Reporting and recordkeeping driver to drive after having been on duty 20 n 4. Revise paragraphs (b) and (c) of requirements. hours (Driving in Alaska) (critical). § 390.23 to read as follows: § 395.1(h)(2)(iii) Requiring or permitting a n In consideration of the foregoing, passenger-carrying commercial motor vehicle § 390.23 Relief from regulations. FMCSA amends 49 CFR, chapter III, driver to drive after having been on duty * * * * * parts 385, 390, and 395 as set forth more than 70 hours in 7 consecutive days (b) Upon termination of direct below: (Driving in Alaska) (critical). assistance to the regional or local § 395.1(h)(2)(iv) Requiring or permitting a PART 385—SAFETY FITNESS passenger-carrying commercial motor vehicle emergency relief effort, the motor carrier PROCEDURES driver to drive after having been on duty or driver is subject to the requirements more than 80 hours in 8 consecutive days of parts 390 through 399 of this chapter, n 1. The authority citation for part 385 (Driving in Alaska) (critical). with the following exception: A driver continues to read as follows: § 395.1(o) Requiring or permitting a may return empty to the motor carrier’s Authority: 49 U.S.C. 113, 504, 521(b), property-carrying commercial motor vehicle terminal or the driver’s normal work 5105(e), 5109, 5113, 13901–13905, 31136, driver to drive after having been on duty 16 reporting location without complying 31144, 31148, and 31502; Sec. 350 of Pub. L. consecutive hours (critical). with parts 390 through 399 of this 107–87; and 49 CFR 1.73. § 395.3(a)(1) Requiring or permitting a property-carrying commercial motor vehicle chapter. However, a driver who informs the motor carrier that he or she needs n 2. Amend appendix B to part 385 as driver to drive more than 11 hours (critical). follows: § 395.3(a)(2) Requiring or permitting a immediate rest must be permitted at least 10 consecutive hours off duty n a. Revise section II.(c) as follows; property-carrying commercial motor vehicle driver to drive after the end of the 14th hour before the driver is required to return to n b. Amend section VII as follows: after coming on duty (critical). such terminal or location. Having (i) Revise the citations and text for § 395.3(b)(1) Requiring or permitting a §§ 395.1(h)(1)(i) through (h)(1)(iv) and returned to the terminal or other property-carrying commercial motor vehicle location, the driver must be relieved of 395.3(a)(1) through 395.3(b)(2) as driver to drive after having been on duty follows; and more than 60 hours in 7 consecutive days all duty and responsibilities. Direct (ii) Revise the citations and text for (critical). assistance terminates when a driver or §§ 395.1(h)(2)(i) through (h)(2)(iv), § 395.3(b)(2) Requiring or permitting a commercial motor vehicle is used in 395.1(o), and 395.3(c)(1) through property-carrying commercial motor vehicle interstate commerce to transport cargo 395.5(b)(2) as follows: driver to drive after having been on duty not destined for the emergency relief more than 70 hours in 8 consecutive days effort, or when the motor carrier (critical). Appendix B to Part 385 Explanation of dispatches such driver or commercial § 395.3(c)(1) Requiring or permitting a Safety Rating Process motor vehicle to another location to property-carrying commercial motor vehicle begin operations in commerce. * * * * * driver to restart a period of 7 consecutive days without taking an off-duty period of 34 (c) When the driver has been relieved II. Converting CR Information Into a Safety of all duty and responsibilities upon Rating or more consecutive hours (critical). § 395.3(c)(2) Requiring or permitting a termination of direct assistance to a * * * * * property-carrying commercial motor vehicle regional or local emergency relief effort, (c) Critical regulations are those identified driver to restart a period of 8 consecutive no motor carrier shall permit or require as such where noncompliance relates to days without taking an off-duty period of 34 any driver used by it to drive nor shall management and/or operational controls. or more consecutive hours (critical). any such driver drive in commerce These are indicative of breakdowns in a § 395.5(a)(1) Requiring or permitting a carrier’s management controls. An example until: passenger-carrying commercial motor vehicle (1) The driver has met the of a critical regulation is § 395.3(a)(1), driver to drive more than 10 hours (critical). requiring or permitting a property-carrying § 395.5(a)(2) Requiring or permitting a requirements of §§ 395.3(a) and 395.5(a) commercial motor vehicle driver to drive passenger-carrying commercial motor vehicle of this chapter; and more than 11 hours. driver to drive after having been on duty 15 (2) The driver has had at least 34 * * * * * hours (critical). consecutive hours off-duty when:
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50071
(i) The driver has been on duty for off duty for drivers of passenger- (iv) The driver has at least 10 more than 60 hours in any 7 consecutive carrying commercial motor vehicles; or consecutive hours off duty separating days at the time the driver is relieved of (iv) After he/she has been on duty 15 each on-duty period; all duty if the employing motor carrier hours following 8 consecutive hours off (v) The driver does not drive more does not operate every day in the week, duty for drivers of passenger-carrying than 11 hours following at least 10 or commercial motor vehicles. consecutive hours off duty; (ii) The driver has been on duty for * * * * * (vi) The driver does not drive: more than 70 hours in any 8 consecutive (e) Short-haul operations—(1) 100 air- (A) After the 14th hour after coming days at the time the driver is relieved of mile radius driver. A driver is exempt on duty on 5 days of any period of 7 all duty if the employing motor carrier from the requirements of § 395.8 if: consecutive days; and operates every day in the week. (i) The driver operates within a 100 (B) After the 16th hour after coming on duty on 2 days of any period of 7 PART 395—HOURS OF SERVICE OF air-mile radius of the normal work reporting location; consecutive days; DRIVERS (vii) The driver does not drive: (ii) The driver, except a driver- (A) After having been on duty for 60 salesperson, returns to the work n 5. The authority citation for part 395 hours in 7 consecutive days if the reporting location and is released from continues to read as follows: employing motor carrier does not work within 12 consecutive hours; Authority: 49 U.S.C. 504, 14122, 31133, operate commercial motor vehicles (iii)(A) A property-carrying 31136, and 31502; sec. 113, Pub. L. 103–311, every day of the week; 108 Stat. 1673, 1676; and 49 CFR 1.73. commercial motor vehicle driver has at (B) After having been on duty for 70 least 10 consecutive hours off duty n 6. Add § 395.0 to read as follows: hours in 8 consecutive days if the separating each 12 hours on duty; employing motor carrier operates § 395.0 Rescission. (B) A passenger-carrying commercial commercial motor vehicles every day of Any regulations on hours of service of motor vehicle driver has at least 8 the week; drivers in effect before April 28, 2003, consecutive hours off duty separating (viii) Any period of 7 or 8 consecutive which were amended or replaced by the each 12 hours on duty; days may end with the beginning of any final rule adopted on April 28, 2003 [69 (iv)(A) A property-carrying off-duty period of 34 or more FR 22456] are rescinded and not in commercial motor vehicle driver does consecutive hours. effect. not exceed 11 hours maximum driving (ix) The motor carrier that employs time following 10 consecutive hours off n 7. Section 395.1 is amended by the driver maintains and retains for a duty; or revising paragraphs (a)(1), (b)(1), (e), (g), period of 6 months accurate and true (B) A passenger-carrying commercial (h), (j), (k), and (o) to read as follows: time records showing: motor vehicle driver does not exceed 10 (A) The time the driver reports for § 395.1 Scope of rules in this part. hours maximum driving time following duty each day; * * * * * 8 consecutive hours off duty; and (B) The total number of hours the (a) General. (1) The rules in this part (v) The motor carrier that employs the driver is on duty each day; apply to all motor carriers and drivers, driver maintains and retains for a period (C) The time the driver is released except as provided in paragraphs (b) of 6 months accurate and true time from duty each day; through (o) of this section. records showing: (D) The total time for the preceding 7 * * * * * (A) The time the driver reports for days in accordance with § 395.8(j)(2) for (b) Adverse driving conditions. (1) duty each day; drivers used for the first time or Except as provided in paragraph (h)(2) (B) The total number of hours the intermittently. of this section, a driver who encounters driver is on duty each day; * * * * * adverse driving conditions, as defined (C) The time the driver is released (g) Sleeper berths—(1) Property- in § 395.2, and cannot, because of those from duty each day; and carrying commercial motor vehicle—(i) conditions, safely complete the run (D) The total time for the preceding 7 In General. A driver who operates a within the maximum driving time days in accordance with § 395.8(j)(2) for property-carrying commercial motor permitted by §§ 395.3(a) or 395.5(a) may drivers used for the first time or vehicle equipped with a sleeper berth, drive and be permitted or required to intermittently. as defined in §§ 395.2 and 393.76 of this drive a commercial motor vehicle for (2) Operators of property-carrying subchapter, (A) Must, before driving, not more than 2 additional hours in commercial motor vehicles not requiring accumulate order to complete that run or to reach a commercial driver’s license. Except as (1) At least 10 consecutive hours off a place offering safety for the occupants provided in this paragraph, a driver is duty; of the commercial motor vehicle and exempt from the requirements of § 395.3 (2) At least 10 consecutive hours of security for the commercial motor and § 395.8 and ineligible to use the sleeper-berth time; vehicle and its cargo. However, that provisions of § 395.1(e)(1), (g) and (o) if: (3) A combination of consecutive driver may not drive or be permitted to (i) The driver operates a property- sleeper-berth and off-duty time drive— carrying commercial motor vehicle for amounting to at least 10 hours; or (i) For more than 13 hours in the which a commercial driver’s license is (4) The equivalent of at least 10 aggregate following 10 consecutive not required under part 383 of this consecutive hours off duty if the driver hours off duty for drivers of property- subchapter; does not comply with paragraph carrying commercial motor vehicles; (ii) The driver operates within a 150 (g)(1)(i)(A)(1), (2), or (3) of this section; (ii) After the end of the 14th hour air-mile radius of the location where the (B) May not drive more than 11 hours since coming on duty following 10 driver reports to and is released from following one of the 10-hour off-duty consecutive hours off duty for drivers of work, i.e., the normal work reporting periods specified in paragraph property-carrying commercial motor location; (g)(1)(i)(A)(1) through (4) of this section; vehicles; (iii) The driver returns to the normal and (iii) For more than 12 hours in the work reporting location at the end of (C) May not drive after the 14th hour aggregate following 8 consecutive hours each duty tour; after coming on duty following one of
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 50072 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
the 10-hour off-duty periods specified in a subsequent sleeper berth or other (ii) After being on duty for 20 hours paragraph (g)(1)(i)(A)(1) through (4) of sleeping accommodation period, totals or more following 8 consecutive hours this section; and at least 10 hours, and off duty; (D) Must exclude from the calculation (B) By including all on-duty time, all (iii) After having been on duty for 70 of the 14-hour limit any sleeper berth off-duty time not spent in the sleeper hours in any period of 7 consecutive period of at least 8 but less than 10 berth or other sleeping days, if the motor carrier for which the consecutive hours. accommodations, all such periods of driver drives does not operate every day (ii) Specific requirements.—The less than 2 hours, and any period not in the week; or following rules apply in determining described in paragraph (g)(2)(iii)(A) of (iv) After having been on duty for 80 compliance with paragraph (g)(1)(i) of this section; and hours in any period of 8 consecutive this section: (iv) The driver may not return to days, if the motor carrier for which the (A) The term ‘‘equivalent of at least 10 driving subject to the normal limits driver drives operates every day in the consecutive hours off duty’’ means a under § 395.3 without taking at least 10 week. period of (1) At least 8 but less than 10 consecutive hours off duty, at least 10 (3) A driver who is driving a consecutive hours in a sleeper berth, consecutive hours in the sleeper berth commercial motor vehicle in the State of and or other sleeping accommodations, or a Alaska and who encounters adverse (2) A separate period of at least 2 but combination of at least 10 consecutive driving conditions (as defined in less than 10 consecutive hours either in hours off duty, sleeper berth time, or § 395.2) may drive and be permitted or the sleeper berth or off duty, or any time in other sleeping accommodations. required to drive a commercial motor combination thereof. (3) Passenger-carrying commercial vehicle for the period of time needed to (B) Calculation of the 11-hour driving motor vehicles. A driver who is driving complete the run. limit includes all driving time; a passenger-carrying commercial motor (i) After a property-carrying compliance must be re-calculated from vehicle that is equipped with a sleeper commercial motor vehicle driver the end of the first of the two periods berth, as defined in §§ 395.2 and 393.76 completes the run, that driver must be used to comply with paragraph of this subchapter, may accumulate the off duty for at least 10 consecutive hours (g)(1)(ii)(A) of this section. equivalent of 8 consecutive hours of off- before he/she drives again; and (C) Calculation of the 14-hour limit duty time by taking a combination of at (ii) After a passenger-carrying includes all time except any sleeper- least 8 consecutive hours off-duty and commercial motor vehicle driver berth period of at least 8 but less than sleeper berth time; or by taking two completes the run, that driver must be 10 consecutive hours; compliance must periods of rest in the sleeper berth, off duty for at least 8 consecutive hours be re-calculated from the end of the first providing: before he/she drives again. of the two periods used to comply with * * * * * the requirements of paragraph * * * * * (j) Travel time—(1) When a property- (g)(1)(ii)(A) of this section. (h) State of Alaska—(1) Property- (2) Specially trained driver of a carrying commercial motor vehicle. The carrying commercial motor vehicle specially constructed oil well servicing provisions of § 395.3(a) and (b) do not driver at the direction of the motor commercial motor vehicle at a natural apply to any driver who is driving a carrier is traveling, but not driving or gas or oil well location. A specially commercial motor vehicle in the State of assuming any other responsibility to the trained driver who operates a Alaska. A driver who is driving a carrier, such time must be counted as commercial motor vehicle specially property-carrying commercial motor on-duty time unless the driver is constructed to service natural gas or oil vehicle in the State of Alaska must not afforded at least 10 consecutive hours wells that is equipped with a sleeper drive or be required or permitted to off duty when arriving at destination, in berth, as defined in §§ 395.2 and 393.76 drive— which case he/she must be considered of this subchapter, or who is off duty at (i) More than 15 hours following 10 off duty for the entire period. a natural gas or oil well location, may consecutive hours off duty; or (2) When a passenger-carrying accumulate the equivalent of 10 (ii) After being on duty for 20 hours commercial motor vehicle driver at the consecutive hours off duty time by or more following 10 consecutive hours direction of the motor carrier is taking a combination of at least 10 off duty. traveling, but not driving or assuming consecutive hours of off-duty time, (iii) After having been on duty for 70 any other responsibility to the carrier, sleeper-berth time, or time in other hours in any period of 7 consecutive such time must be counted as on-duty sleeping accommodations at a natural days, if the motor carrier for which the time unless the driver is afforded at gas or oil well location; or by taking two driver drives does not operate every day least 8 consecutive hours off duty when periods of rest in a sleeper berth, or in the week; or arriving at destination, in which case other sleeping accommodation at a (iv) After having been on duty for 80 he/she must be considered off duty for natural gas or oil well location, hours in any period of 8 consecutive the entire period. providing: days, if the motor carrier for which the (k) Agricultural operations. The (i) Neither rest period is shorter than driver drives operates every day in the provisions of this part shall not apply to 2 hours; week. drivers transporting agricultural (ii) The driving time in the period (2) Passenger-carrying commercial commodities or farm supplies for immediately before and after each rest motor vehicle. The provisions of § 395.5 agricultural purposes in a State if such period, when added together, does not do not apply to any driver who is transportation: exceed 11 hours; driving a passenger-carrying commercial (1) Is limited to an area within a 100 (iii) The driver does not drive after the motor vehicle in the State of Alaska. A air-mile radius from the source of the 14th hour after coming on duty driver who is driving a passenger- commodities or the distribution point following 10 hours off duty, where the carrying commercial motor vehicle in for the farm supplies, and 14th hour is calculated: the State of Alaska must not drive or be (2) Is conducted during the planting (A) By excluding any sleeper berth or required or permitted to drive— and harvesting seasons within such other sleeping accommodation period of (i) More than 15 hours following 8 State, as determined by the State. at least 2 hours which, when added to consecutive hours off duty; * * * * *
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50073
(o) Property-carrying driver. A (1) Having been on duty 60 hours in commercial motor vehicles every day of property-carrying driver is exempt from any period of 7 consecutive days if the the week. the requirements of § 395.3(a)(2) if: employing motor carrier does not n 10. Section 395.13 paragraphs (c)(1)(ii) (1) The driver has returned to the operate commercial motor vehicles and (d)(2) are revised to read as follows: driver’s normal work reporting location every day of the week; or and the carrier released the driver from (2) Having been on duty 70 hours in § 395.13 Drivers declared out of service. duty at that location for the previous any period of 8 consecutive days if the * * * * * five duty tours the driver has worked; employing motor carrier operates (c) * * * (2) The driver has returned to the commercial motor vehicles every day of (1) * * * normal work reporting location and the the week. (i) * * * carrier releases the driver from duty (c)(1) Any period of 7 consecutive (ii) Require a driver who has been within 16 hours after coming on duty days may end with the beginning of any declared out of service for failure to following 10 consecutive hours off duty; off-duty period of 34 or more prepare a record of duty status to and consecutive hours; or operate a commercial motor vehicle (3) The driver has not taken this (2) Any period of 8 consecutive days until that driver has been off duty for exemption within the previous 6 may end with the beginning of any off- the appropriate number of consecutive consecutive days, except when the duty period of 34 or more consecutive hours required by this part and is in driver has begun a new 7- or 8- hours. compliance with this section. The consecutive day period with the n 9. Section 395.5 is revised to read as appropriate consecutive hours off-duty beginning of any off-duty period of 34 follows: may include sleeper berth time. or more consecutive hours as allowed * * * * * by § 395.3(c). § 395.5 Maximum driving time for passenger-carrying vehicles. (d) * * * n 8. Section 395.3 is revised to read as (1) * * * follows: Subject to the exceptions and (2) No driver who has been declared exemptions in § 395.1: out of service, for failing to prepare a § 395.3 Maximum driving time for (a) No motor carrier shall permit or property-carrying vehicles. record of duty status, shall operate a require any driver used by it to drive a commercial motor vehicle until the Subject to the exceptions and passenger-carrying commercial motor driver has been off duty for the exemptions in § 395.1: vehicle, nor shall any such driver drive appropriate number of consecutive (a) No motor carrier shall permit or a passenger-carrying commercial motor hours required by this part and is in require any driver used by it to drive a vehicle: compliance with this section. property-carrying commercial motor (1) More than 10 hours following 8 n 11. Section 395.15(j)(2)(ii) is revised to vehicle, nor shall any such driver drive consecutive hours off duty; or read as follows: a property-carrying commercial motor (2) For any period after having been vehicle: on duty 15 hours following 8 § 395.15 Automatic on-board recording (1) More than 11 cumulative hours consecutive hours off duty. devices. following 10 consecutive hours off duty; (b) No motor carrier shall permit or * * * * * or require a driver of a passenger-carrying (j) * * * (2) For any period after the end of the commercial motor vehicle to drive, nor (2) * * * 14th hour after coming on duty shall any driver drive a passenger- (i) * * * following 10 consecutive hours off duty, carrying commercial motor vehicle, (ii) The motor carrier has required or except when a property-carrying driver regardless of the number of motor permitted a driver to establish, or the complies with the provisions of carriers using the driver’s services, for driver has established, a pattern of § 395.1(o) or § 395.1(e)(2). any period after— exceeding the hours of service (b) No motor carrier shall permit or (1) Having been on duty 60 hours in limitations of this part; require a driver of a property-carrying any 7 consecutive days if the employing * * * * * commercial motor vehicle to drive, nor motor carrier does not operate shall any driver drive a property- commercial motor vehicles every day of Issued on: August 16, 2005. carrying commercial motor vehicle, the week; or Annette M. Sandberg, regardless of the number of motor (2) Having been on duty 70 hours in Administrator. carriers using the driver’s services, for any period of 8 consecutive days if the [FR Doc. 05–16498 Filed 8–19–05; 12:00 pm] any period after— employing motor carrier operates BILLING CODE 4910–EX–P
VerDate jul<14>2003 16:38 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR2.SGM 25AUR2 Thursday, August 25, 2005
Part III
Election Assistance Commission Publication of State Plans Pursuant to the Help America Vote Act; Notice
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\25AUN2.SGM 25AUN2 50076 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
ELECTION ASSISTANCE COMMISSION The submissions from Montana, receive a requirements payment under Nevada, and South Carolina address HAVA Title II, Subtitle D. Publication of State Plans Pursuant to material changes in the administration EAC notes that the plans published the Help America Vote Act of their previously submitted State herein have already met the notice and comment requirements of HAVA section AGENCY: U.S. Election Assistance plans and, in accordance with HAVA 256, as required by HAVA section Commission (EAC). section 254(a)(12), provide information on how the State succeeded in carrying 254(a)(11)(B). EAC wishes to ACTION: Notice. out the previous State plan. Montana is acknowledge the effort that went into the revising the State plans and SUMMARY: Pursuant to sections submitting a revised budget to address encourages further public comment, in 254(a)(11)(A) and 255(b) of the Help how the State plans to use its 2004 writing, to the State election official of America Vote Act (HAVA), Public Law requirements payment. The State also the individual States listed below. 107–252, the U.S. Election Assistance references adjustments to voter Commission (EAC) hereby causes to be education programs, to programs Thank you for your interest in published in the Federal Register providing access to voters with improving the voting process in material changes to the HAVA State disabilities, to provisional voting and America. plans previously submitted by Montana, voter identification processes, and to Chief State Election Officials Nevada, and South Carolina. voting system requirements. Nevada and Montana DATES: This notice is effective upon South Carolina are submitting revised publication in the Federal Register. budgets to account for the shortfall in The Honorable Brad Johnson, the amount of requirements payments FOR FURTHER INFORMATION CONTACT: Secretary of State, P.O. Box 202801, received. Montana’s submission is the Bryan Whitener, Telephone 202–566– Helena, MT 59620–2801, Phone: 406– first amendment to the State’s original 3100 or 1–866–747–1471 (toll-free). 444–4732, Fax: 406–444–2023, Email: plan. Nevada and South Carolina had Submit Comments: Any comments [email protected]. filed amended State plans that were regarding the plans published herewith published in the Federal Register on Nevada should be made in writing to the chief election official of the individual States September 30, 2004. 69 FR 58630. The Honorable Dean Heller, Secretary at the address listed below. Upon the expiration of thirty days of State, 101 N. Carson Street, Suite 3, Carson City, NV 89701, Phone: 775– SUPPLEMENTARY INFORMATION: On March from August 25, 2005, these States will be eligible to implement any material 684–5705, Fax: 775–684–5718, Email: 24, 2004, the U.S. Election Assistance [email protected]. Commission published in the Federal changes addressed in the plans that are Register the original HAVA State plans published herein, in accordance with South Carolina HAVA section 254(a)(11)(C). At that filed by the fifty States, the District of Ms. Marci Andino, Executive time, in accordance with HAVA section Columbia and the Territories of Director, State Election Commission, 253(d), Montana also may file a American Samoa, Guam, Puerto Rico, P.O. Box 5987, Columbia, SC 29250– statement of certification to obtain a and the U.S. Virgin Islands. 69 FR 5987, Phone: 803–734–9060, Fax: 803– fiscal year 2004 requirements payment. 14002. HAVA anticipated that States, 734–8366, E-mail: Territories and the District of Columbia This statement of certification must [email protected]. would change or update their plans confirm that the State is in compliance from time to time pursuant to HAVA with all of the requirements referred to Dated: August 17, 2005. section 254 (a)(11) through (13). HAVA in HAVA section 253(b) and must be Gracia M. Hillman, sections 254(a)(11)(A) and 255 require provided to the Election Assistance Chair, U.S. Election Assistance Commission. EAC to publish such updates. Commission in order for the State to BILLING CODE 6820–KF–U
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\25AUN2.SGM 25AUN2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50077
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.022 50078 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.023 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50079
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.024 50080 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.025 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50081
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.026 50082 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.027 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50083
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.028 50084 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.029 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50085
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.030 50086 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.031 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50087
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.032 50088 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.033 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50089
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.034 50090 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.035 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50091
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.036 50092 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.037 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50093
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.038 50094 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.039 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50095
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.040 50096 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.041 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50097
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.042 50098 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.043 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50099
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.044 50100 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.045 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50101
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.046 50102 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.047 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50103
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.048 50104 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.049 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50105
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.050 50106 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.051 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50107
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.052 50108 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.053 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50109
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.054 50110 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.055 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50111
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.056 50112 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
[FR Doc. 05–16634 Filed 8–24–05; 8:45 am] BILLING CODE 6820–KF–C
VerDate jul<14>2003 17:06 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4703 E:\FR\FM\25AUN2.SGM 25AUN2 EN25AU05.057 Thursday, August 25, 2005
Part IV
Environmental Protection Agency 40 CFR Part 63 National Emissions Standards for Hazardous Air Pollutants: Reinforced Plastic Composites Production; Proposed Rule
VerDate jul<14>2003 17:14 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\25AUP2.SGM 25AUP2 50114 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules
ENVIRONMENTAL PROTECTION ADDRESSES: Submit your comments, to EPA without going through AGENCY identified by Docket ID No. OAR–2003– EDOCKET or regulations.gov, your e- 0003, by one of the following methods: mail address will be automatically 40 CFR Part 63 • Federal eRulemaking Portal: http:// captured and included as part of the www.regulations.gov. Follow the on-line comment that is placed in the public [OAR–2003–0003; FRL–7957–8] instructions for submitting comments. docket and made available on the • Agency Web site: http:// Internet. If you submit an electronic www.epa.gov/edocket. EDOCKET, EPA’s RIN 2060–AM23 comment, EPA recommends that you electronic public docket and comment include your name and other contact National Emissions Standards for system, is EPA’s preferred method for information in the body of your Hazardous Air Pollutants: Reinforced receiving comments. Follow the on-line comment and with any disk or CD–ROM instructions for submitting comments. Plastic Composites Production • you submit. If EPA cannot read your E-mail: [email protected] and comment due to technical difficulties AGENCY: Environmental Protection [email protected]. • and cannot contact you for clarification, Agency (EPA). Fax: (202) 566–1741 and (919) 541– EPA may not be able to consider your 5600. ACTION: Proposed rule; amendments. comment. Electronic files should avoid • Mail: U.S. Postal Service, send the use of special characters, any form comments to: HQ EPA Docket Center SUMMARY: On April 12, 2003, the EPA of encryption, and be free of any defects (6102T), Attention Docket ID No. OAR– issued national emission standards for or viruses. For additional information 2003–0003, 1200 Pennsylvania Avenue, hazardous air pollutants (NESHAP) for about EPA’s public docket, visit reinforced plastics composites NW., Washington, DC 20460. Please include a duplicate copy, if possible. EDOCKET on-line or see the Federal production, which were issued under • Register of May 31, 2002 (67 FR 38102). section 112 of the Clean Air Act (CAA). Hand Delivery: In person or by courier, deliver comments to: HQ EPA Docket: All documents in the docket This action will amend the final rule to are listed in the EDOCKET index at revise compliance options for open Docket Center (6102T), Attention Docket ID No. OAR–2003–0003, 1301 http://www.epa.gov/edocket. Although molding, correct errors, and add Constitution Avenue, NW., Room B– listed in the index, some information is clarifications to sections of the rule that 108, Washington, DC 20004. Such not publicly available, i.e., CBI or other were not clear. deliveries are only accepted during the information whose disclosure is In the Rules and Regulations section Docket’s normal hours of operation, and restricted by statute. Certain other of this Federal Register, we are taking special arrangements should be made material, such as copyrighted material, direct final action on the proposed for deliveries of boxed information. is not placed on the Internet and will be amendments because we view the Please include a duplicate copy, if publicly available only in hard copy amendments as noncontroversial and possible. form. Publicly available docket anticipate no adverse comments. We We request that you also send a materials are available either have explained our reasons for the separate copy of each comment to the electronically in EDOCKET or in hard amendments in the direct final rule. If contact person listed below (see FOR copy at the HQ EPA Docket Center, we receive no adverse comments, we FURTHER INFORMATION CONTACT). Docket ID No. OAR–2003–0003, EPA will take no further action on the Instructions: Direct your comments to West Building, Room B–102, 1301 proposed amendments. If we receive Docket ID No. OAR–2003–0003. The Constitution Ave., NW., Washington, adverse comments, we will withdraw EPA’s policy is that all comments DC. The Public Reading Room is open only those provisions on which we received will be included in the public from 8:30 a.m. to 4:30 p.m., Monday received adverse comments. We will docket without change and may be through Friday, excluding legal publish a timely withdrawal in the made available online at http:// holidays. The telephone number for the Federal Register indicating which www.epa.gov/edocket, including any Public Reading Room is (202) 566–1744, provisions will become effective and personal information provided, unless and the telephone number for the HQ which provisions are being withdrawn. the comment includes information EPA Docket Center is (202) 566–1742. A If part or all of the direct final rule in claimed to be confidential business reasonable fee may be charged for the Rules and Regulations section of information (CBI) or other information copying docket materials. today’s Federal Register is withdrawn, whose disclosure is restricted by statute. Public Hearing. If a public hearing is all comments pertaining to those Do not submit information that you held, it will be held at 10 a.m. at the provisions will be addressed in a consider to be CBI or otherwise EPA’s Environmental Research Center subsequent final rule based on the protected through EDOCKET, Auditorium, Research Triangle Park, proposed amendments. We will not regulations.gov, or e-mail. Send or North Carolina or at an alternate site institute a second comment period on deliver information identified as CBI nearby. the subsequent final action. Any parties only to the following address: Mr. interested in commenting must do so at Roberto Morales, OAQPS Document FOR FURTHER INFORMATION CONTACT: Mr. this time. Control Officer, EPA (C404–02), Keith Barnett, EPA, Office of Air Quality DATES: Comments. Written comments Attention Docket ID No. OAR–2003– Planning and Standards, Emission must be received on or before 0003, Research Triangle Park, NC 27711. Standards Division, Minerals and September 26, 2005 unless a hearing is Clearly mark the part or all of the Inorganic Chemicals Group (C504–05), requested by September 6, 2005. If a information that you claim to be CBI. Research Triangle Park, North Carolina hearing is requested, written comments The EPA EDOCKET and the Federal 27711; telephone number (919) 541– must be received on or before October regulations.gov websites are 5605; facsimile number (919) 541–5600; 11, 2005. ‘‘anonymous access’’ systems, which e-mail address: [email protected]. Public Hearing. If anyone contacts the means EPA will not know your identity SUPPLEMENTARY INFORMATION: EPA requesting to speak at a public or contact information unless you Regulated Entities. Categories and hearing, a public hearing will be held on provide it in the body of your comment. entities potentially regulated by this September 8, 2005. If you send an e-mail comment directly action include:
VerDate jul<14>2003 17:14 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\25AUP2.SGM 25AUP2 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 50115
Category NAICS1 code Examples of regulated entities
Industry ...... 325211, 326122, 325991, 326191, 327991, 327993, Reinforced plastic composites production facilities that 332998, 33312, 33651, 335311, 335313, 335312, manufacture intermediate and/or final products using 33422, 336211, 336112, 336211, 33651, 33635, styrene containing thermoset resins and gel coats. 336399, 33612, 336213, 336413; and 336214. Federal Government ...... Federally owned facilities that manufacture intermediate and/or final products using styrene containing thermoset resins and gel coats. 1 North American Industry Classification System.
This table is not intended to be Worldwide Web (WWW). In addition other statute unless the agency certifies exhaustive, but rather provides a guide to being available in the docket, an that the rule will not have a significant for readers regarding entities likely to be electronic copy of today’s proposal will economic impact on a substantial regulated by this action. To determine also be available through the WWW. number of small entities. Small entities whether your facility is regulated by this Following the Administrator’s signature, include small businesses, small action, you should examine the a copy of this action will be posted on organizations, and small governmental applicability criteria in 40 CFR 63.5785 EPA’s Technology Transfer Network jurisdictions. and 40 CFR 63.5787 of the final (TTN) policy and guidance page for For purposes of assessing the impact NESHAP. If you have any questions newly proposed or promulgated rules of today’s technical amendments on regarding the applicability of this action http://www.epa.gov/ttn/oarpg/. The small entities, a small entity is defined to a particular entity, consult the person TTN at EPA’s Web site provides as: (1) A small business ranging from listed in the preceding FOR FURTHER information and technology exchange in 500 to 1,000 employees as defined by INFORMATION CONTACT section. various areas of air pollution control. the Small Business Administration’s Submitting CBI. Do not submit this Direct Final Rule. A direct final rule size standards; (2) a small governmental information to EPA through EDOCKET, identical to the proposal is published in jurisdiction that is a government of a regulations.gov, or e-mail. Clearly mark the Rules and Regulations section of city, county, town, school district or the part or all of the information that today’s Federal Register. If we receive special district with a population of less you claim to be CBI. For CBI any adverse comment pertaining to the than 50,000; and (3) a small information in a disk or CD ROM that amendments in the proposal, we will organization that is any not-for-profit you mail to EPA, mark the outside of the publish a timely notice in the Federal enterprise which is independently disk or CD ROM as CBI and then Register informing the public that the identify electronically within the disk or owned and operated and is not amendments are being withdrawn due dominant in its field. CD ROM the specific information that is to adverse comment. We will address all claimed as CBI. In addition to one public comments concerning the After considering the economic complete version of the comment that withdrawn amendments in a subsequent impacts of today’s proposed rule includes information claimed as CBI, a final rule. If no relevant adverse amendments on small entities, I certify copy of the comment that does not comments are received, no further that this action will not have a contain the information claimed as CBI action will be taken on the proposal, significant economic impact on a must be submitted for inclusion in the and the direct final rule will become substantial number of small entities. public docket. Information so marked effective as provided in that action. The rule amendments will not impose will not be disclosed except in The regulatory text for the proposal is any new requirements on small entities. accordance with procedures set forth in identical to that for the direct final rule Today’s action includes direct final rule 40 CFR part 2. published in the Rules and Regulations amendments that resolve Public Hearing. Persons interested in section of today’s Federal Register. For inconsistencies, clarify language, and presenting oral testimony or inquiring further supplementary information, the add additional compliance flexibility. as to whether a hearing is to be held detailed rationale for the proposal and None of the amendments will have any should contact Ms. Janet Eck, EPA, the regulatory revisions, see the direct discernible effect on the stringency of Office of Air Quality Planning and final rule published in a separate part of the rule. We continue to be interested in Standards, Emission Standards this Federal Register. the potential impacts of the proposed Division, Coatings and Consumer rule on small entities and welcome Products Group (C539–03), Research Statutory and Executive Order Reviews comments on issues related to such Triangle Park, North Carolina 27711, For a complete discussion of all of the impacts. telephone number (919) 541–7946, e- administrative requirements applicable List of Subjects in 40 CFR Part 63 mail address: [email protected]., at to this action, see the direct final rule in least 2 days in advance of the potential the Rules and Regulations section of Environmental protection, Air date of the public hearing. Persons today’s Federal Register. pollution control, Hazardous interested in attending the public Regulatory Flexibility Act substances, Reporting and hearing must also call Ms. Eck to verify recordkeeping requirements. the time, date, and location of the The Regulatory Flexibility Act (RFA) hearing. The public hearing will provide generally requires an agency to prepare Dated: August 16, 2005. interested parties the opportunity to a regulatory flexibility analysis of any Stephen L. Johnson, present data, views, or arguments rule subject to notice and comment Administrator. concerning these proposed emission rulemaking requirements under the [FR Doc. 05–16700 Filed 8–24–05; 8:45 am] standards. Administrative Procedure Act or any BILLING CODE 6560–50–P
VerDate jul<14>2003 17:14 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\25AUP2.SGM 25AUP2 Thursday, August 25, 2005
Part V
Environmental Protection Agency 40 CFR Part 63 National Emissions Standards for Hazardous Air Pollutants: Reinforced Plastic Composites Production; Direct Final Rule
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\25AUR3.SGM 25AUR3 50118 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
ENVIRONMENTAL PROTECTION receiving comments. Follow the on-line captured and included as part of the AGENCY instructions for submitting comments. comment that is placed in the public • E-mail: [email protected] and docket and made available on the 40 CFR Part 63 [email protected]. Internet. If you submit an electronic • Fax: (202) 566–1741 and (919) 541– comment, EPA recommends that you [OAR–2003–0003; FRL–7957–7] 5600. include your name and other contact • Mail: U.S. Postal Service, send RIN 2060–AM23 information in the body of your comments to: HQ EPA Docket Center comment and with any disk or CD–ROM National Emissions Standards for (6102T), Attention Docket ID No. OAR– you submit. If EPA cannot read your Hazardous Air Pollutants: Reinforced 2003–0003, 1200 Pennsylvania Avenue, comment due to technical difficulties Plastic Composites Production NW., Washington, DC 20460. Please and cannot contact you for clarification, include a total of two copies. We request EPA may not be able to consider your AGENCY: Environmental Protection that you also send a separate copy of comment. Electronic files should avoid Agency (EPA). each comment to the contact person the use of special characters, any form ACTION: Direct final rule; amendments. listed below (see FOR FURTHER of encryption, and be free of any defects INFORMATION CONTACT). or viruses. For additional information SUMMARY: The EPA is taking direct final • Hand Delivery: In person or by about EPA’s public docket visit action on amendments to the national courier, deliver comments to: HQ EPA EDOCKET on-line or see the Federal emissions standards for hazardous air Docket Center (6102T), Attention Docket Register of May 31, 2002 (67 FR 38102). pollutants (NESHAP) for reinforced ID No. OAR–2003–0003, 1301 plastic composites production which Constitution Avenue, NW., Room B– Docket: All documents in the docket were issued April 12, 2003, under 108, Washington, DC 20004. Such are listed in the EDOCKET index at section 112 of the Clean Air Act (CAA). deliveries are only accepted during the http://www.epa.gov/edocket. Although The direct final amendments revise Docket’s normal hours of operation, and listed in the index, some information is compliance options for open molding, special arrangements should be made not publicly available, i.e., CBI or other correct errors, and add clarification to for deliveries of boxed information. information whose disclosure is sections of the rule. We are issuing the Please include a total of two copies. restricted by statute. Certain other amendments as a direct final rule, Instructions: Direct your comments to material, such as copyrighted material, without prior proposal, because we Docket ID No. OAR–2003–0003. The is not placed on the Internet and will be view the revisions as noncontroversial EPA’s policy is that all comments publicly available only in hard copy and anticipate no adverse comments. received will be included in the public form. Publicly available docket However, in the Proposed Rules section docket without change and may be materials are available either of this Federal Register notice, we are made available online at http:// electronically in EDOCKET or in publishing a separate document that www.epa.gov/edocket, including any hardcopy at the HQ EPA Docket Center, will serve as the proposal to amend the personal information provided, unless Docket ID No. OAR–2003–0003, EPA NESHAP for reinforced plastic the comment includes information West Building, Room B–102, 1301 composites production if adverse claimed to be confidential business Constitution Ave., NW., Washington, comments are filed. information (CBI) or other information DC. The Public Reading Room is open whose disclosure is restricted by statute. from 8:30 a.m. to 4:30 p.m., Monday DATES: The direct final rule is effective Do not submit information that you through Friday, excluding legal on October 24, 2005 without further consider to be CBI or otherwise holidays. The telephone number for the notice, unless EPA receives adverse protected through EDOCKET, Public Reading Room is (202) 566–1744, written comment by September 26, 2005 regulations.gov, or e-mail. Send or and the telephone number for the HQ or if a public hearing is requested by deliver information identified as CBI EPA Docket Center is (202) 566–1742. A September 6, 2005. If adverse comments only to the following address: Mr. reasonable fee may be charged for are received, EPA will publish a timely Roberto Morales, OAQPS Document copying docket materials. withdrawal in the Federal Register Control Officer, EPA (C404–02), FOR FURTHER INFORMATION CONTACT: For indicating which provisions will Attention Docket ID No. OAR–2003– become effective and which provisions further information contact Mr. Keith 0003, Research Triangle Park, NC 27711. Barnett, EPA, Office of Air Quality are being withdrawn due to adverse Clearly mark the part or all of the comment. Planning and Standards, Emission information that you claim to be CBI. Standards Division, Minerals and ADDRESSES: Submit your comments, The EPA EDOCKET and the Federal Inorganic Chemicals Group (C504–05), identified by Docket ID No. OAR–2003– regulations.gov Web sites are Research Triangle Park, North Carolina 0003, by one of the following methods: ‘‘anonymous access’’ systems, which • 27711; telephone number (919) 541– Federal eRulemaking Portal: http:// means EPA will not know your identity 5605; fax number (919) 541–5600; e- www.regulations.gov. Follow the on-line or contact information unless you mail address: [email protected]. instructions for submitting comments. provide it in the body of your comment. • Agency Web site: http:// If you send an e-mail comment directly SUPPLEMENTARY INFORMATION: www.epa.gov/edocket. EDOCKET, EPA’s to EPA without going through Regulated Entities. Categories and electronic public docket and comment EDOCKET or regulations.gov, your e- entities potentially regulated by this system, is EPA’s preferred method for mail address will be automatically action include:
Category NAICS code1 Examples of regulated entities
Industry ...... 325211, 326122, 325991, 326191, 327991, 327993, Reinforced plastic composites production facilities that 332998, 33312, 33651, 335311, 335313, 335312, manufacture intermediate and/or final products using 33422, 336211, 336112, 336211, 33651, 33635, styrene containing thermoset resins and gel coats. 336399, 33612, 336213, 336413; and 336214.
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50119
Category NAICS code1 Examples of regulated entities
Federal Government ...... Federally owned facilities that manufacture intermediate and/or final products using styrene containing thermoset resins and gel coats. 1 North American Industry Classification System.
This table is not intended to be review in the U.S. Court of Appeals for add additional compliance flexibility. exhaustive, but rather provides a guide the District of Columbia Circuit by None of the amendments will have any for readers regarding entities likely to be October 24, 2005. Under section discernable effect on the stringency of regulated by this action. To determine 307(d)(7)(B) of the CAA, only an the rule. whether your facility is regulated by this objection to the direct final rule II. Amendments to 40 CFR Part 63, action, you should examine the amendments that was raised with Subpart WWWW applicability criteria in 40 CFR 63.5785 reasonable specificity during the period and 40 CFR 63.5787 of the final for public comment can be raised during This subpart applies to facilities that NESHAP. If you have any questions judicial review. Moreover, under section manufacture reinforced plastic regarding the applicability of this action 307(b)(2) of the CAA, the requirements composites and are located at major to a particular entity, consult the person established by the direct final rule sources of hazardous air pollutants. For listed in the preceding FOR FURTHER amendments may not be challenged more information on rule applicability INFORMATION CONTACT section. separately in any civil or criminal see 40 CFR 63.5785. Worldwide Web (WWW). In addition proceeding brought by EPA to enforce The EPA received numerous to being available in the docket, an these requirements. questions relating to rule requirements electronic copy of today’s final NESHAP Outline. The information presented in for polymer casting and closed molding will also be available on the WWW this preamble is organized as follows: operations. These operations were mentioned in the rule or rule preamble through the Technology Transfer I. Background Network (TTN). Following the II. Amendments to 40 CFR Part 63, Subpart so it would be clear that they were Administrator’s signature, a copy of the WWWW covered by the rule. However, we did NESHAP will be posted on the TTN’s III. Statutory and Executive Order Reviews not list any requirements for these policy and guidance page for newly A. Executive Order 12866, Regulatory operations in the rule, except for proposed or promulgated rules at http:/ Planning and Review compression/injection closed molding /www.epa.gov/ttn/oarpg/. The TTN B. Paperwork Reduction Act which has a work practice requirement. provides information and technology C. Regulatory Flexibility Act In order to make it clear these D. Unfunded Mandates Reform Act operations have no requirements, exchange in various areas of air E. Executive Order 13132, Federalism pollution control. F. Executive Order 13175, Consultation polymer casting and closed molding Comments. We are publishing the and Coordination With Indian Tribal operations (except for compression/ direct final rule amendments without Governments injection molding) have been added to prior proposal because we view the G. Executive Order 13045, Protection of the list of operations with no amendments as noncontroversial and do Children From Environmental Health requirements in 40 CFR 63.5790(c). We not anticipate adverse comments. Risks and Safety Risks also added language to that paragraph to However, in the Proposed Rules section H. Executive Order 13211, Actions clarify that though certain operations Concerning Regulations that have no requirements, any requirements of this Federal Register notice, we are Significantly Affect Energy Supply, publishing a separate document that Distribution, or Use that apply to co-located operations are will serve as the proposal to amend the I. National Technology Transfer and not affected. NESHAP for reinforced plastic Advancement Act A question was raised concerning area composites production if adverse J. Congressional Review Act sources that commenced construction comments are filed. If we receive any prior to August 2, 2002, but did not I. Background adverse comments on one or more become a major source until after distinct amendments, we will publish a The EPA promulgated NESHAP for August 2, 2002. The final rule language timely withdrawal in the Federal reinforced plastic composites in 40 CFR 63.5795(a)(2) appears to Register informing the public which production on April 21, 2003. The final imply that any area source that became provisions will become effective, and rule (40 CFR part 63, subpart WWWW) major due to an expansion or other type which provisions are being withdrawn includes standards for hazardous air of construction after August 2, 2002, due to adverse comment. We will pollutants (HAP), as well as monitoring, would be considered a new source address all public comments in a performance testing, recordkeeping, and because it was not an affected source subsequent final rule, should the reporting requirements related to those prior to commencing construction. Our Agency determine to issue one. Any of standards. After promulgation of the intent was that any existing source the distinct amendments in today’s rule, EPA received numerous questions would not become a new source as the direct final rule for which we do not relating to rule interpretation. The result of reconstruction. Therefore, we receive adverse comment will become questions pointed out minor are changing the sentence ‘‘You effective on the previously mentioned inconsistencies in some of the tables commence construction, and no other date. We will not institute a second and the rule language, areas where the reinforced plastic composites comment period on the direct final rule rule requirements were not clear, and production affected source exists at that amendments. Any parties interested in restrictions that would preclude most site’’ by removing the word affected commenting must do so at this time. facilities using the least burdensome from the sentence. The new language Judicial Review. Under section open molding compliance option. will now read ‘‘You commence 307(b)(1) of the CAA, judicial review of Today’s action includes direct final rule construction, and no other reinforced the direct final rule amendments is amendments that resolve plastic composites production source available only by filing a petition for inconsistencies, clarify language, and exists at that site.’’ Therefore, it will
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 50120 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
now be clear that an area source that We received several questions relating emission limit and, therefore, would existed prior to August 3, 2002 will not to the values for the highest organic comply with its applicable emission be considered a new source once it HAP content for compliant materials limit. However, if the same resin is becomes major due to an expansion or shown in Table 3 to subpart WWWW of applied manually, its emission factor other type of reconstruction. part 63. In one case, a local regulatory would be above its corresponding In 40 CFR 63.5799, the first sentence agency wanted to write the organic HAP emission limit, and to comply with the of paragraph (a) refers to paragraphs (b) limits in Table 3 to subpart WWWW as rule, this combination of resin and and (d) of 40 CFR 63.5805. Paragraph (b) absolute permit limits. In another case, application method would have to be of 40 CFR 63.5805 discusses existing someone interpreted the organic HAP averaged with other operations. This source requirements. We should have limits as absolute limits not to be specific resin, as applied, complies in referenced paragraph (c) of 40 CFR exceeded. one case, but not the other. Therefore, 63.5805, which discusses requirements The purpose of the highest organic using the term compliant materials is for new facilities. We have changed the HAP content for compliant materials misleading. rule text to correct this. shown in Table 3 to subpart WWWW For this reason, we have modified 40 Also in 40 CFR 63.5799(b), we was only to provide examples of CFR 63.5810 to clarify that when a included a sentence that stated ‘‘If an compliant materials, and these values specific resin or gel coat, as applied, existing facility has accepted an are not emission limits or HAP content meets the applicable emission limit, enforceable permit limit of less than 100 limits. The actual emission limits are then it is in compliance, and we have tons per year of HAP, and can the pounds per ton (lb/ton) limits in the dropped the term compliant materials demonstrate that they will operate at third column of Table 3 to subpart from the rule. We are also modifying the that level subsequent to the compliance WWWW. If you meet the lb/ton limits rule to allow facilities to both date, then they can be deemed to be in the third column of Table 3 to demonstrate compliance for some resins below the 100 tons per year (tpy) subpart WWWW, you are in and gel coats using averaging, and that threshold.’’ We received a comment that compliance, regardless of the HAP some individual resins and gel coats, as content of the resin or gel coat. applied, comply with their emission this sentence implies that a facility that In order to clarify our intent, we have limits. This change will have no impact used process controls could not use a removed the fourth column from Table on the actual rule limits and should permit limit of 100 tons per year (tpy) 3 to subpart WWWW and reorganized result in no change in HAP emissions, to demonstrate they were below the 100 the discussion of compliance options in but may reduce the required reporting tpy threshold. Our intent was that any 40 CFR 63.5810. Paragraph (a) of 40 CFR and recordkeeping. We have also facility that could demonstrate, through 63.5810 now covers how to determine if revised paragraph (d) of 40 CFR its permit requirements, that it would be a specific resin or gel coat, as applied, 63.5895, which discusses collecting data below the 100 tpy threshold would not meets its applicable emission limit. to demonstrate continuous compliance, have to perform emission calculations. Paragraph (b) of 40 CFR 63.5810 covers to reflect this change in compliance Therefore, we have changed the averaging within each individual options. We are limiting this flexibility sentence to read ‘‘If an existing facility combination of operation type and resin for a specific resin or gel coat to state has accepted an enforceable permit limit application method or gel coat type. that if a specific resin or gel coat is that would result in emissions of less Paragraph (c) of 40 CFR 63.5810 covers being used in any averaging than 100 tpy of HAP measured prior to demonstrating compliance using a calculations, then all of that specific any add-on controls, and can weighted average emission limit. resin or gel coat resin must be part of demonstrate that they will operate at Paragraph (d) of 40 CFR 63.5810 covers averaging, even if the resin, as applied, that level subsequent to the compliance options where you can meet the organic would meet its applicable emission date, they can be deemed to be below HAP emissions limit for one resin limit. You must collect resin use data the 100 tpy threshold.’’ This should application method and use the same for any resin or gel coat that is involved make it clear that both restricted resin for all application methods of that in averaging. operation hours and use of process resin type. In paragraph (a) of 40 CFR 63.5810, controls are acceptable methods to After promulgation, it was pointed we state that you may demonstrate demonstrate through permit out to EPA that for a facility to be able compliance for an individual resin or requirements that the facility will not to use the compliant materials gel coat based on the HAP content, meet nor exceed the 100 tpy threshold. compliance option, all materials would application method, and any controls We received numerous questions have to be compliant. Therefore, even if that reduce its emission factor. As an concerning 40 CFR 63.5805, specifically a facility used numerous resin and gel example, a non-corrosion resistant/high concerning when the 95 percent control coats, having one noncompliant strength (non-CR/HS) resin with an requirement applied to existing sources, material would require all materials be organic HAP content of 38 percent, and which operations were potentially included in some type of averaging. applied using nonatomized spray, subject to 95 percent control. We have This would not result in any additional would have an emission factor of 86 lb/ revised the wording of 40 CFR 63.5805 emissions reductions, but would ton calculated using Equation 1.c.i of to make it more clear by changing increase the amount of reporting and table 1 to subpart WWWW of part 63. paragraphs (a) and (b). Paragraph 40 recordkeeping. The emission limit for this operation as CFR 63.5805(a) now discusses only the A second comment concerned the use shown in table 3 to subpart WWWW of limits applicable to centrifugal casting of the term ‘‘compliant materials.’’ It part 63 is 88 lb/ton. Therefore, this and continuous lamination/casting was pointed out that it is the resin, as applied, complies with its operations, rather that all operations at combination of a specific resin or gel emission limit. If the facility switches to existing sources. Paragraph 40 CFR coat, the application method, and atomized resin application, the emission 63.5805(b) discusses all operations at controls that determine compliance, not factor would change to 183 lb/ton, and existing sources not covered in the resin or gel coat alone. For example, the resin would not comply with its paragraph 40 CFR 63.5805(a). No a 38 percent HAP resin applied with emission limit. requirements have changed as result of nonatomized spray has an emission A second example of demonstrating this revision. factor that is below its corresponding compliance for an individual resin or
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50121
gel coat would be a 41 percent HAP currently do not meet the large parts or smoothing the resin is not considered resin that contains a vapor suppressant definition of 1,000 reinforcements and a rolling out or working the resin. with a vapor suppressant effectiveness cross sectional area of 60 inches or more We made several changes to table 1 to factor of 0.5 applied using nonatomized shown in footnote 6 of table 3 to subpart subpart WWWW of part 63. We spray. The emission factor calculated WWWW of part 63. These parts were corrected a typographical error in the using Equation 1.c.i from table 1 to well over 60 inches of cross sectional column numbering. We also corrected subpart WWWW of part 63 would be area but contain large roving and equation 1.f where we had an error on 74.2 lb/ton. This is below the emission stitched fabrics for reinforcement. They the first term of the equation and added limit of 88 lb/ton. Therefore, this resin, maintained that these parts should be a new equation to calculate emissions as applied complies with its emission included in the large parts definition from atomized spray gel coat using limit as long as nonatomized because the factors we used to robotic or automated spray. Finally, we mechanical application and vapor determine what made a part large, i.e., added a footnote to table 1 to subpart suppressant continue to be used. part size and complexity, were as WWWW of part 63 stating that the If a facility required to meet the limits relevant here as they would be if they equations presented are intended for use in table 3 to subpart WWWW of part 63 replaced the fabric and larger roving to determine compliance with the rule has some type of add-on control, the with a smaller roving and more and do not preclude the use of other control efficiency may be used to show individual reinforcements to meet the emission factors to calculate emissions compliance. For example, a facility that 1,000 reinforcement requirement. for other purposes, such as reports uses a 35 percent HAP white gel coat We agree with this comment and have required by their title V permit. The with atomized spray has an emission changed the definition of large reason for this change was an industry factor of 335.5 lb/ton, which is above pultruded parts for existing pultrusion concern that State and local regulators the allowable emission limit of 267 lb/ operations in footnote 6 to table 3 of were requiring sources to use the ton. Therefore, this gel coat, as applied, subpart WWWW of part 63 to 60 square equations in table 1 to subpart WWWW does not comply with its emission limit. inches or more and 1,000 of part 63 in lieu of potentially more However, if the facility controlled the reinforcements, or 60 square inches or accurate factors. However, this footnote gel coat spray booth emissions by 47.5 more and the glass equivalent of 1,000 does not preclude a facility from using percent overall (50 percent capture ends of 113 yield roving. This change the equations in table 1 to subpart efficiency and 95 percent control), the also includes correcting the cross WWWW of part 63 if these equations are emission factor would now be 176 lb/ sectional measure to 60 square inches, deemed to be the most accurate ton, and the gel coat does comply. This not 60 inches. We also made available. Several changes were made to table 3 would require that the facility corresponding changes to item 9 of table to subpart WWWW of part 63 based on demonstrate the capture and control 9 to subpart WWWW of part 63. efficiency using the appropriate test comments and questions received after We received a comment that equation methods in the NESHAP. promulgation of the final rule. We We have also added a paragraph (d)(4) 2 in 40 CFR 63.5885 was in error received a comment that for three of the to 40 CFR 63.5810 that states if a facility because, based on the definition of operations in table 1 to subpart WWWW elects to comply using the option in uncontrolled wet-out area organic HAP of part 63, substituting the value for the paragraph (d) of 40 CFR 63.5810 and emissions, the equation did not account highest HAP content for a compliant uses resins that meet the organic HAP for emissions that are captured and resin in column four into the equations limits in table 7 to subpart WWWW of vented to a control device. We agreed in table 1 to subpart WWWW of part 63 part 63, then those individual resins with this comment and have revised resulted in a calculated emission factor would be considered to be in equations 2 and 3 of 40 CFR 63.5885 to that was above the corresponding compliance, and resin use records are account for all emissions generated in emission limit. This should not happen not required. the wet-out areas. if the resin or gel coat is considered A commenter stated that some A commenter noted that we did not compliant. On further review, we pultrusion machines have multiple specify how a source was to report discovered that the error was due to the preform and pre-wet areas prior to the changing compliance options. We have way we rounded the calculations during die. This configuration is incompatible added paragraph (i) to 40 CFR 63.5910 floor development. As a result, the with the language of 40 CFR that requires the source to state if they facilities that set the floor for these three 63.5830(b)(4) because this language changed compliance options in their operations would not be in compliance. would only be correct for one pre-wet next compliance report. We do not believe that the rounding area. Therefore, we have revised the We made several corrections to the procedure should result in a floor- language so multiple preform and pre- definitions in 40 CFR 63.5935 in setting facility to now be out of wet areas can be used. This change does response to comments. In the definition compliance with the floor. Therefore, not affect the total amount of area for ‘‘high performance gel coat,’’ we had we changed the rounding technique allowed to be open and should not have listed the National Science Foundation used to calculate the emission limits for any impact on control effectiveness. as a source of property testing the open molding operations in table 3 A commenter stated that some direct standards. This should have been the to subpart WWWW of part 63. The die injection systems do not recycle National Sanitation Foundation. We result was the emission limits for the resin drip directly back to the resin changed the definition of ‘‘mixing’’ to three operations noted by the injection chamber. It is recycled back to include mixing of putties or polyputties. commenter changed slightly. The limit the process. We agree that recycling the In the definition for ‘‘neat resin plus,’’ for open molding, CR/HS resins, resin back to the process would result we had left the word ‘‘plus’’ out of the mechanical resin application changed in no additional emissions and have last sentence. In the definition of from 112 to 113 lb/ton. The emission modified the description of direct die ‘‘polymer casting,’’ a commenter noted limit for non-CR/HS resin, mechanical injection in 40 CFR 63.5830(c)(3) to that sometimes polymer casters vibrate resin changed from 87 to 88 lb/ton. The reflect this. or smooth the material. We added emission limit for open molding, tooling Another commenter stated that they language to the ‘‘polymer casting’’ gel coat changed from 437 to 440 lb/ton. manufactured large pultruded parts that definition to make it clear that vibrating These changes will not affect the costs
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 50122 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
of compliance or emissions reductions 4.a. of table 7 to subpart WWWW of part action is ‘‘significant’’ and, therefore, of the rule. The changes simply make 63 to state that nonatomized resin subject to Office of Management and the floor emission limits consistent with application is required. Budget (OMB) review and the the facilities setting the floors. The A commenter noted that the language requirements of the Executive Order. changes in table 3 to subpart WWWW in item 5.a.ii of table 8 to subpart The Executive Order defines of part 63 also slightly changed the WWWW of part 63 implies that all ‘‘significant regulatory action’’ as one calculated maximum HAP content for pultrusion machines at existing sources that is likely to result in a rule that may: these processes shown in table 7 to must reduce emissions by 60 weight (1) Have an annual effect on the subpart WWWW of part 63, and we percent, while the language in 40 CFR economy of $100 million or more or have updated table 7 to subpart 63.5830(e)(2) states that facilities may adversely affect in a material way the WWWW of part 63 to reflect the changes demonstrate compliance if the weighted economy, a sector of the economy, in table 3 to subpart WWWW of part 63. average reduction based on resin productivity, competition, jobs, the One commenter stated that regulated throughput for all machines combined environment, public health or safety, or sources were confused on which in 60 percent. We have revised item State, local, or tribal governments or emission limit to use for shrinkage 5.a.ii of table 8 to subpart WWWW of communities; controlled resins when the resin is used part 63 to make the language consistent (2) create a serious inconsistency or to make tools. We added a footnote to with 40 CFR 63.5830(e)(2). We also otherwise interfere with an action taken clarify that a shrinkage controlled resin changed 40 CFR 63.5830(e)(2) to correct or planned by another agency; is subject to the emission limits in item a spelling error. (3) materially alter the budgetary 5 of table 3 to subpart WWWW of part We received several questions impact of entitlements, grants, user fees, 63 regardless of whether it is used as a concerning the applicability of rule or loan programs or the rights and tooling or a production resin. requirements to filler putties used to fill obligations of recipients thereof; or In table 3 to subpart WWWW of part gaps or smooth sharp corners. We did (4) raise novel legal or policy issues 63 we did not have emission limits for not specifically investigate these arising out of legal mandates, the manually applied gel coat because we materials in the rulemaking. Putties are President’s priorities, or the principles did not have data to develop specific sometimes made on site using set forth in the Executive Order. limits. In the footnotes, we stated that production resin, but are also purchased It has been determined that this rule for compliance purposes, manually as a separate product. We noted that the is not a ‘‘significant regulatory action’’ applied gel coat should be treated as if NESHAP for Boat Manufacturing under the terms of Executive Order it were applied using spray guns. In exempted putties, polyputties, and 12866 and is, therefore, not subject to table 1 to subpart WWWW of part 63, adhesives from any requirements. OMB review.’’ we had an equation to calculate an Because we cannot say with certainty B. Paperwork Reduction Act emission factor for manual gel coat that filler putties could meet the This action does not impose any new application, but we stated not to use the emission limits for manual resin equation for compliance purposes. We information collection burden. This application, we are amending the rule to action adds clarifications and believe this has caused some confusion. exclude putties, polyputties, and Therefore, we have removed the manual corrections to the final standards. adhesives from any emission limits. However, the OMB has previously gel coat equation from table 1 to subpart This will make the Reinforced Plastic WWWW of part 63 because this approved the information collection Composites Production NESHAP requirements contained in the existing equation is not necessary to show consistent with the Boat Manufacturing compliance with the NESHAP. We have regulations (68 FR 36982, June 20, 2003) NESHAP. However, any emissions from under the provisions of the Paperwork also revised the footnote concerning mixing of putties and polyputties would manual gel coat application in table 3 to Reduction Act, 44 U.S.C. 3501, et seq. be subject to the appropriate mixing subpart WWWW of part 63 to make it and has assigned OMB control number emission limits or work practices. We more clear that to demonstrate 2060–0509 (EPA ICR No. 1976.02). A do not believe this will result in any compliance for manually applied gel copy of the Information Collection change in the stringency of the NESHAP coat you treat manually applied gel coat Request (ICR) may be obtained from for two reasons. First, most facilities use as if it were applied using spray Susan Auby by mail at the Office of very small amounts of putty compared equipment. Environmental Information, Collection A commenter noted that footnote 1 to their use of resin and gel coat. Strategies Division (2822), EPA, 1200 should apply to items 6 and 7 of table Second, the small amount of putty used Pennsylvania Avenue, NW., 4 to subpart WWWW of part 63, not just will have a very small surface area Washington, DC 20460, by e-mail at to item 8. We agree with this comment relative to the volume and be highly [email protected], or by calling (202) and have revised table 4 to subpart filled, which will tend to result in less 566–1672. You also may download a WWWW of part 63 accordingly. emissions than a comparable volume of copy from the Internet at http:// A commenter noted that table 7 to resin or gel coat. www.epa.gov/icr. Include the ICR subpart WWWW of part 63 as written We also have amended §§ 63.5900, number in any correspondence. implied that, for items 1.a and 4.a, it 63.5910, and 63.5915 of 40 CFR part 63 Burden means the total time, effort, or would be permissible to use atomized to parallel changes in other sections and financial resources expended by persons mechanical application. This was not incorporate paragraph referencing to generate, maintain, retain, or disclose our intent. The compliance options in changes. or provide information to or for a table 7 were intended to provide III. Statutory and Executive Order Federal agency. This includes the time additional flexibility to regulated Reviews needed to review instructions; develop, sources by allowing the use of the same acquire, install, and utilize technology resin in different operations. The A. Executive Order 12866, Regulatory and systems for the purposes of organic HAP limits based on mechanical Planning and Review collecting, validating, and verifying resin application were all determined Under Executive Order 12866 (58 FR information, processing and using nonatomized spray. Therefore, we 51735, October 4, 1993), the EPA must maintaining information, and disclosing have added a footnote to items 1.a and determine whether this regulatory and providing information; adjust the
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50123
existing ways to comply with any statement is needed, section 205 of the on the States, on the relationship previously applicable instructions and UMRA generally requires us to identify between the national government and requirements; train personnel to be able and consider a reasonable number of the States, or on the distribution of to respond to a collection of regulatory alternatives and adopt the power and responsibilities among the information; search data sources; least costly, most cost-effective, or least various levels of government, as complete and review the collection of burdensome alternative that achieves specified in Executive Order 13132. No information; and transmit or otherwise the objectives of the rule. The reinforced plastic composites disclose the information. provisions of section 205 do not apply production facilities subject to the direct An agency may not conduct or when they are inconsistent with final rule amendments are owned by sponsor, and a person is not required to applicable law. Moreover, section 205 State or local governments. Therefore, respond to a collection of information allows us to adopt an alternative other State and local governments will not unless it displays a currently valid OMB than the least costly, most cost-effective, have any direct compliance costs control number. The OMB control or least burdensome alternative if the resulting from the direct final rule numbers for EPA’s regulations are listed Administrator publishes with the final amendments. Furthermore, the direct in 40 CFR part 9. rule an explanation why that alternative final rule amendments do not require C. Regulatory Flexibility Analysis was not adopted. Before EPA establishes these governments to take on any new any regulatory requirements that may responsibilities. Thus, Executive Order EPA has determined that it is not significantly or uniquely affect small 13132 does not apply to the direct final necessary to prepare a regulatory governments, including tribal rule amendments. flexibility analysis in connection with governments, it must have developed F. Executive Order 13175, Consultation the direct final rule amendments. under section 203 of the UMRA a small and Coordination With Indian Tribal For purposes of assessing the impacts government agency plan. The plan must Governments of today’s final rule on small entities, provide for notifying potentially small entity is defined as: (1) A small affected small governments, enabling Executive Order 13175, entitled business as defined by the Small officials of affected small governments ‘‘Consultation and Coordination with Business Administrations’ regulations at to have meaningful and timely input in Indian Tribal Governments’’ (65 FR 13 CFR 121.201; (2) a small the development of EPA regulatory 67249, November 9, 2000), requires EPA governmental jurisdiction that is a proposals with significant Federal to develop an accountable process to government of a city, county, town, intergovernmental mandates, and ensure ‘‘meaningful and timely input by school district or special district with a informing, educating, and advising tribal officials in the development of population of less than 50,000; and (3) small governments on compliance with regulatory policies that have tribal a small organization that is any not-for- the regulatory requirements. implications.’’ The direct final rule profit enterprise which is independently The EPA has determined that the amendments do not have tribal owned and operated and is not direct final rule amendments do not implications as specified in Executive dominant in its field. contain a Federal mandate that may Order 13175. They will not have After considering the economic result in expenditures of $100 million or substantial direct effects on tribal impacts of today’s direct final rule more for State, local, and tribal governments, on the relationship amendments on small entities, EPA has governments, in the aggregate, or the between the Federal government and concluded that this action will not have private sector in any 1 year. The direct Indian tribes, or on the distribution of a significant economic impact on a final rule amendments apply only to power and responsibilities between the substantial number of small entities. We affected sources in the reinforced plastic Federal government and Indian tribes, have determined that the direct final composites industry and clarify and because we are not aware of any Indian rule amendments will not impose any correct errors in the final rule and, tribal governments or communities new requirements on small entities. therefore, add no additional burden on affected by the direct final rule Today’s action includes direct final rule sources. Thus, the direct final rule amendments. Thus, Executive Order amendments that resolve amendments are not subject to the 13175 does not apply to the direct final inconsistencies, clarify language, and requirements of sections 202 and 205 of rule amendments. add additional compliance flexibility. the UMRA. The EPA specifically solicits None of the amendments will have any additional comment on the direct final discernable effect on the stringency of E. Executive Order 13132, Federalism rule amendments from tribal officials. the rule. Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, G. Executive Order 13045, Protection of D. Unfunded Mandates Reform Act 1999), requires EPA to develop an Children From Environmental Health Title II of the Unfunded Mandates accountable process to ensure Risks and Safety Risks Reform Act of 1995 (UMRA), Public ‘‘meaningful and timely input by State Executive Order 13045 (62 FR 19885, Law 104–4, establishes requirements for and local officials in the development of April 23, 1997) applies to any rule that: Federal agencies to assess the effects of regulatory policies that have federalism (1) Is determined to be ‘‘economically their regulatory actions on State, local, implications.’’ ‘‘Policies that have significant’’ as defined under Executive and tribal governments and the private federalism implications’’ is defined in Order 12866, and (2) concerns an sector. Under section 202 of the UMRA, the Executive Order to include environmental health or safety risk that EPA generally must prepare a written regulations that have ‘‘substantial direct EPA has reason to believe may have a statement, including a cost-benefit effects on the States, on the relationship disproportionate effect on children. If analysis, for proposed and final rules between the national government and the regulatory action meets both criteria, with ‘‘Federal mandates’’ that may the States, or on the distribution of the Agency must evaluate the result in expenditures to State, local, power and responsibilities among the environmental health or safety effects of and tribal governments, in the aggregate, various levels of government.’’ the planned rule on children, and or to the private sector, of $100 million The direct final rule amendments do explain why the planned regulation is or more in any 1 year. Before not have federalism implications. They preferable to other potentially effective promulgating a rule for which a written will not have substantial direct effects and reasonably feasible alternatives
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 50124 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
considered by the Agency. The EPA Register. The direct final rule source if it meets all the criteria in interprets Executive Order 13045 as amendments are not a ‘‘major rule’’ as paragraphs (a)(1) and (2) of this section. applying only to those regulatory defined by 5 U.S.C. 804(2). The direct (1) You commence construction of the actions that are based on health or safety final rule amendments are effective on source after August 2, 2001. risks, such that the analysis required October 24, 2005. (2) You commence construction, and under section 5–501 of the Executive no other reinforced plastic composites Order has the potential to influence the List of Subjects in 40 CFR Part 63 production source exists at that site. regulation. The direct final rule Environmental protection, Air (b) For the purposes of this subpart, amendments are not subject to pollution control, Hazardous an existing affected source is any Executive Order 13045 because they are substances, and Reporting and affected source that is not a new affected based on technology performance and recordkeeping requirements. source. not on health or safety risks. They are Dated: August 16, 2005. n 4. Section 63.5799 is amended by: also not considered ‘‘economically Stephen L. Johnson, n a. Revising paragraph (a); and significant’’ as defined under Executive n b. Revising the paragraph (b) Administrator. Order 12866. introductory text to read as follows: n For the reasons stated in the preamble, H. Executive Order 13211, Actions That title 40, chapter I, part 63 of the Code of § 63.5799 How do I calculate my facility’s Significantly Affect Energy Supply, the Federal Regulations is amended as organic HAP emissions on a tpy basis for Distribution, or Use follows: purposes of determining which paragraphs of § 63.5805 apply? The direct final rule amendments are not subject to Executive Order 13211 (66 PART 63—[AMENDED] * * * * * FR 28355, May 22, 2001) because they (a) For new facilities prior to startup, n 1. The authority citation for part 63 calculate a weighted average organic are not a significant regulatory action continues to read as follows: under Executive Order 12866. HAP emissions factor for the operations Authority: 42 U.S.C. 7401, et seq. specified in § 63.5805(c) and (d) on a I. National Technology Transfer lbs/ton of resin and gel coat basis. Base Advancement Act Subpart WWWW—[Amended] the weighted average on your projected operation for the 12 months subsequent Section 12(d) of the National n 2. Section 63.5790 is amended by to facility startup. Multiply the Technology Transfer Advancement Act revising paragraph (c) to read as follows: (NTTAA) of 1995, Public Law 104–113, weighted average organic HAP 12(d) (15 U.S.C. 272 note) directs EPA § 63.5790 What parts of my plant does this emissions factor by projected resin use to use voluntary consensus standards subpart cover? over the same period. You may calculate (VCS) in its regulatory activities unless * * * * * your organic HAP emissions factor to do so would be inconsistent with (c) The following operations are based on the factors in Table 1 to this applicable law or otherwise impractical. specifically excluded from any subpart, or you may use any HAP The VCS are technical standards (e.g., requirements in this subpart: emissions factor approved by us, such materials specifications, test methods, application of mold sealing and release as factors from the ‘‘Compilation of Air sampling procedures, and business agents; mold stripping and cleaning; Pollutant Emissions Factors, Volume I: practices) that are developed or adopted repair of parts that you did not Stationary Point and Area Sources (AP– by VCS bodies. The NTTAA directs EPA manufacture, including non-routine 42),’’ or organic HAP emissions test data to provide Congress, through the OMB, manufacturing of parts; personal from similar facilities. explanations when the Agency decides activities that are not part of the (b) For existing facilities and new not to use available and applicable VCS. manufacturing operations (such as facilities after startup, you may use the The direct final rule amendments do hobby shops on military bases); prepreg procedures in either paragraph (b)(1) or not involve technical standards. materials as defined in § 63.5935; non- (2) of this section. If the emission factors Therefore, EPA is not considering the gel coat surface coatings; application of for an existing facility have changed use of any VCS. putties, polyputties, and adhesives; over the period of time prior to their repair or production materials that do initial compliance date due to J. Congressional Review Act not contain resin or gel coat; research incorporation of pollution-prevention The Congressional Review Act, 5 and development operations as defined control techniques, existing facilities U.S.C. 801, et seq., as added by the in section 112(c)(7) of the CAA; polymer may base the average emission factor on Small Business Regulatory Enforcement casting; and closed molding operations their operations as they exist on the Fairness Act of 1996, generally provides (except for compression/injection compliance date. If an existing facility that before a rule may take effect, the molding). Note that the exclusion of has accepted an enforceable permit limit agency promulgating the rule must certain operations from any that would result in less than 100 tpy of submit a rule report, which includes a requirements applies only to operations HAP measured prior to any add-on copy of the rule, to each House of the specifically listed in this paragraph. The controls, and can demonstrate that they Congress and to the Comptroller General requirements for any co-located will operate at that level subsequent to of the United States. The EPA will operations still apply. the compliance date, they can be submit a report containing the direct * * * * * deemed to be below the 100 tpy final rule amendments and other threshold. n required information to the United 3. Section 63.5795 is revised to read as follows: * * * * * States Senate, the United States House n 5. Section 63.5805 is revised to read as of Representatives, and the Comptroller § 63.5795 How do I know if my reinforced follows: General of the United States prior to plastic composites production facility is a publication of the direct final rule new affected source or an existing affected § 63.5805 What standards must I meet to amendments in the Federal Register. A source? comply with this subpart? major rule cannot take effect until 60 (a) A reinforced plastic composites You must meet the requirements of days after it is published in the Federal production facility is a new affected paragraphs (a) through (h) of this section
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50125
that apply to you. You may elect to total organic HAP emissions from these paragraph (a)(1) or (d) of this section comply using any options to meet the operations by at least 95 percent by within 3 years from the time your standards described in §§ 63.5810 weight and meet any applicable work organic HAP emissions first exceeded through 63.5830. Use the procedures in practice standards in Table 4 to this the threshold. § 63.5799 to determine if you meet or subpart that apply to you. As an (g) If you have repair operations exceed the 100 tpy threshold. alternative to meeting 95 percent by subject to this subpart as defined in (a) If you have an existing facility that weight, you may meet the organic HAP § 63.5785, these repair operations must has any centrifugal casting or emissions limits in Table 5 to this meet the requirements in Tables 3 and continuous casting/lamination subpart. If you have a continuous 4 to this subpart and are not required to operations, you must meet the lamination/casting operation, that meet the 95 percent organic HAP requirements of paragraph (a)(1) or (2) of operation may alternatively meet an emissions reduction requirements in this section: organic HAP emissions limit of 1.47 lbs/ paragraph (a)(1) or (d) of this section. (1) If the combination of all ton of neat resin plus and neat gel coat (h) If you use an add-on control centrifugal casting and continuous plus applied. device to comply with this subpart, you lamination/casting operations emit 100 (2)(i) If your new facility must meet all requirements contained in tpy or more of HAP, you must reduce manufactures large reinforced plastic 40 CFR part 63, subpart SS. the total organic HAP emissions from composites parts using open molding or n 6. Section 63.5810 is revised to read as centrifugal casting and continuous pultrusion operations, the specific open follows: lamination/casting operations by at least molding and pultrusion operations used 95 percent by weight. As an alternative to produce large parts are not required § 63.5810 What are my options for meeting to meeting the 95 percent by weight to reduce HAP emissions by 95 weight the standards for open molding and requirement, centrifugal casting centrifugal casting operations at new and percent, but must meet the emission existing sources? operations may meet the applicable limits in Table 3 to this subpart. organic HAP emissions limits in Table (ii) A large open molding part is You must use one of the following 5 to this subpart and continuous defined as a part that, when the final methods in paragraphs (a) through (d) of lamination/casting operations may meet finished part is enclosed in the smallest this section to meet the standards for an organic HAP emissions limit of 1.47 rectangular six-sided box into which the open molding or centrifugal casting lbs/ton of neat resin plus and neat gel part can fit, the total interior volume of operations in Table 3 or 5 to this coat plus applied. For centrifugal the box exceeds 250 cubic feet, or any subpart. You may use any control casting, the percent reduction interior sides of the box exceed 50 method that reduces organic HAP requirement does not apply to organic square feet. emissions, including reducing resin and HAP emissions that occur during resin (iii) A large pultruded part is a part gel coat organic HAP content, changing application onto an open centrifugal that exceeds an outside perimeter of 24 to nonatomized mechanical application, casting mold using open molding inches or has more than 350 using covered curing techniques, and application techniques. reinforcements. routing part or all of your emissions to (2) If the combination of all (e) If you have a new or existing an add-on control. You may use centrifugal casting and continuous facility subject to paragraph (a)(2) or (c) different compliance options for the lamination/casting operations emit less of this section at its initial compliance different operations listed in Table 3 or than 100 tpy of HAP, then centrifugal date that subsequently meets or exceeds 5 to this subpart. The necessary casting and continuous lamination/ the 100 tpy threshold in any calendar calculations must be completed within casting operations must meet the year, you must notify your permitting 30 days after the end of each month. appropriate requirements in Table 3 to authority in your compliance report. You may switch between the this subpart. You may at the same time request a one- compliance options in paragraphs (a) (b) All operations at existing facilities time exemption from the requirements through (d) of this section. When you not listed in paragraph (a) of this section of paragraph (a)(1) or (d) of this section change to an option based on a 12- must meet the organic HAP emissions in your compliance report if you can month rolling average, you must base limits in Table 3 to this subpart and the demonstrate all of the following: the average on the previous 12 months work practice standards in Table 4 to (1) The exceedance of the threshold of data calculated using the compliance this subpart that apply, regardless of the was due to circumstances that will not option you are changing to, unless you quantity of HAP emitted. be repeated. were previously using an option that (c) If you have a new facility that (2) The average annual organic HAP did not require you to maintain records emits less than 100 tpy of HAP from the emissions from the potentially affected of resin and gel coat use. In this case, combination of all open molding, operations for the last 3 years were you must immediately begin collecting centrifugal casting, continuous below 100 tpy. resin and gel coat use data and lamination/casting, pultrusion, SMC (3) Projected organic HAP emissions demonstrate compliance 12 months manufacturing, mixing, and BMC for the next calendar year are below 100 after changing options. manufacturing, you must meet the tpy, based on projected resin and gel (a) Demonstrate that an individual organic HAP emissions limits in Table coat use and the HAP emission factors resin or gel coat, as applied, meets the 3 to this subpart and the work practice calculated according to the procedures applicable emission limit in Table 3 or standards in Table 4 to this subpart that in § 63.5799. 5 to this subpart. (1) Calculate your apply to you. (f) If you apply for an exemption in actual organic HAP emissions factor for (d)(1) Except as provided in paragraph paragraph (e) of this section and each different process stream within (d)(2) of this section, if you have a new subsequently exceed the HAP emission each operation type. A process stream is facility that emits 100 tpy or more of thresholds specified in paragraph (a)(2) defined as each individual combination HAP from the combination of all open or (c) of this section over the next 12- of resin or gel coat, application molding, centrifugal casting, continuous month period, you must notify the technique, and control technique. lamination/casting, pultrusion, SMC permitting authority in your semiannual Process streams within operations types manufacturing, mixing, and BMC report, the exemption is removed, and are considered different from each other manufacturing, you must reduce the your facility must comply with if any of the following four
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 50126 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
characteristics vary: the neat resin plus calculation should include any and all conducting capture and control or neat gel coat plus organic HAP emission reduction techniques used efficiency testing using the procedures content, the gel coat type, the including any add-on controls. If you specified in § 63.5850. The organic HAP application technique, or the control are using vapor suppressants to reduce emissions factor calculated from the technique. You must calculate organic HAP emissions, you must determine the equations in Table 1 to this subpart, or HAP emissions factors for each different vapor suppressant effectiveness (VSE) a site-specific emissions factor, is process stream by using the appropriate by conducting testing according to the multiplied by the add-on control factor equations in Table 1 to this subpart for procedures specified in appendix A to to calculate the organic HAP emissions open molding and for centrifugal subpart WWWW of 40 CFR part 63. If factor after control. Use Equation 1 of casting, or site-specific organic HAP you are using an add-on control device this section to calculate the add-on emissions factors discussed in to reduce HAP emissions, you must control factor used in the organic HAP § 63.5796. The emission factor determine the add-on control factor by emissions factor equations.
% Control Efficiency Add-o n Control Factor = 1 − (Eq. 1) 100
Where: averaging calculations described in section by operation type and resin Percent Control Efficiency=a value calculated paragraphs (b) through (d) of this application method or gel coat type from organic HAP emissions test section, then all process streams using listed in Table 3 to this subpart and then measurements made according to the that individual resin or gel coat must be requirements of § 63.5850 to this subpart. calculate a weighted average emission included in the averaging calculations. factor based on the amounts of each (2) If the calculated emission factor is (b) Demonstrate that, on average, you individual resin or gel coat used for the less than or equal to the appropriate meet the individual organic HAP last 12 months. To do this, sum the emission limit, you have demonstrated emissions limits for each combination of product of each individual organic HAP that this process stream complies with operation type and resin application emissions factor calculated in paragraph the emission limit in Table 3 to this method or gel coat type. Demonstrate (a)(1) of this section and the amount of subpart. It is not necessary that all your that on average you meet the individual process streams, considered organic HAP emissions limits for each neat resin plus and neat gel coat plus individually, demonstrate compliance unique combination of operation type usage that corresponds to the individual to use this option for some process and resin application method or gel coat factors and divide the numerator by the streams. However, for any individual type shown in Table 3 to this subpart total amount of neat resin plus and neat resin or gel coat you use, if any of the that applies to you. gel coat plus used in that operation type process streams that include that resin (1)(i) Group the process streams as shown in Equation 2 of this section. or gel coat are to be used in any described in paragraph (a) to this
n ∗ Average organic ∑(Actual Process Stream EFii Material ) HAP Emissions = i=1 (Eq. 2) Factor n ∑ Materiali i=1
Where: corresponding organic HAP emissions (1) Each month calculate the weighted Actual Process Stream EFi=actual organic limit in Table 3 or 5 to this subpart. If average organic HAP emissions limit for HAP emissions factor for process stream all emissions factors are equal to or less all open molding operations and the i, lbs/ton; than their corresponding emission weighted average organic HAP Materiali=neat resin plus or neat gel coat plus used during the last 12 calendar months limits, then you are in compliance. emissions limit for all centrifugal for process stream i, tons; (c) Demonstrate compliance with a casting operations for your facility for n=number of process streams where you weighted average emission limit. the last 12-month period to determine calculated an organic HAP emissions the organic HAP emissions limit you factor. Demonstrate each month that you meet each weighted average of the organic must meet. To do this, multiply the (ii) You may, but are not required to, individual organic HAP emissions include process streams where you have HAP emissions limits in Table 3 or 5 to limits in Table 3 or 5 to this subpart for demonstrated compliance as described this subpart that apply to you. When each open molding (centrifugal casting) in paragraph (a) of this section, subject using this option, you must demonstrate to the limitations described in compliance with the weighted average operation type by the amount of neat paragraph (a)(2) of this section, and you organic HAP emissions limit for all your resin plus or neat gel coat plus used in are not required to and should not open molding operations, and then the last 12 months for each open include process streams for which you separately demonstrate compliance with molding (centrifugal casting) operation will demonstrate compliance using the the weighted average organic HAP type, sum these results, and then divide procedures in paragraph (d) of this emissions limit for all your centrifugal this sum by the total amount of neat section. casting operations. Open molding resin plus and neat gel coat plus used (2) Compare each organic HAP operations and centrifugal casting in open molding (centrifugal casting) emissions factor calculated in paragraph operations may not be averaged with over the last 12 months as shown in (b)(1) of this section with its each other. Equation 3 of this section.
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 ER25AU05.013 ER25AU05.014 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50127
n ∗ ∑(ELii Material ) i=1 Weighted Average Emission Limit = n (Eq. 3) ∑ Materiali i=1
Where: (2) Each month calculate your amount of neat resin plus and neat gel ELi=organic HAP emissions limit for weighted average organic HAP coat plus used in each open molding operation type i, lbs/ton from Tables 3 or emissions factor for open molding and (centrifugal casting) operation type, sum 5 to this subpart; centrifugal casting. To do this, multiply the results, and divide this sum by the Materiali=neat resin plus or neat gel coat plus your actual open molding (centrifugal total amount of neat resin plus and neat used during the last 12-month period for casting) operation organic HAP gel coat plus used in open molding operation type i, tons; emissions factors calculated in (centrifugal casting) operations as n=number of operations. paragraph (b)(1) of this section and the shown in Equation 4 of this section.
n ∗ Actual Weighted ∑(Actual Operation EFii Material ) Average organic = i=1 (Eq. 4) HAP Emissions n Factor ∑ Materiali i=1
Where: paragraph (d)(1) of this section. (4) For pultrusion lines with pre-wet Actual Individual EFi=Actual organic HAP Calculate the weighted average organic area(s) prior to direct die injection, no emissions factor for operation type i, lbs/ HAP content monthly. Use Equation 2 more than 12.5 inches of open wet stock ton; in paragraph (b)(1) of this section except is permitted between the entrance of the Materiali=neat resin plus or neat gel coat plus used during the last 12 calendar months for substitute organic HAP content for first pre-wet area and the entrance to the operation type i, tons; organic HAP emissions factor. You are die. If the pre-wet stock has any drip, it n=number of operations. in compliance if the weighted average must be enclosed. (3) Compare the values calculated in organic HAP content based on the last * * * * * paragraphs (c)(1) and (2) of this section. 12 months of resin use is less than or (c) * * * equal to the applicable organic HAP If each 12-month rolling average organic (3) Resin drip is captured in a closed contents in Table 7 to this subpart. HAP emissions factor is less than or system and recycled back to the process. (3) You may simultaneously use the equal to the corresponding 12-month * * * * * rolling average organic HAP emissions averaging provisions in paragraph (b) or (e) * * * limit, then you are in compliance. (c) of this section to demonstrate (d) Meet the organic HAP emissions compliance for any operations and/or (2) The weighted average reduction limit for one application method and resins you do not include in your based on resin throughput of all use the same resin(s) for all application compliance demonstrations in machines combined is 60 percent. For methods of that resin type. This option paragraphs (d)(1) and (2) of this section. purposes of the average percent is limited to resins of the same type. The However, any resins for which you reduction calculation, wet area resin types for which this option may be claim compliance under the option in enclosures reduce organic HAP used are noncorrosion-resistant, paragraphs (d)(1) and (2) of this section emissions by 60 percent, and direct die corrosion-resistant and/or high strength, may not be included in any of the injection and preform injection reduce and tooling. averaging calculations described in organic HAP emissions by 90 percent. (1) For any combination of manual paragraph (b) or (c) of this section. n 8. Section 63.5885 is revised to read as resin application, mechanical resin (4) You do not have to keep records follows: application, filament application, or of resin use for any of the individual centrifugal casting, you may elect to resins where you demonstrate § 63.5885 How do I calculate percent meet the organic HAP emissions limit compliance under the option in reduction to demonstrate compliance for continuous lamination/casting operations? for any one of these application paragraph (d)(1) of this section unless methods and use the same resin in all you elect to include that resin in the You may calculate percent reduction of the resin application methods listed averaging calculations described in using any of the methods in paragraphs in this paragraph (d)(1). Table 7 to this paragraph (d)(2) of this section. (a) through (d) of this section. subpart presents the possible n 7. Section 63.5830 is amended by: (a) Compliant line option. If all of combinations based on a facility n a. Revising paragraph (b)(4); your wet-out areas have PTE that meet selecting the application process that n b. Revising paragraph (c)(3); and the requirements of EPA Method 204 of n results in the highest allowable organic c. Revising paragraph (e)(2) to read as appendix M of 40 CFR part 51, and all HAP content resin. If the resin organic follows. of your wet-out area organic HAP HAP content is below the applicable § 63.5830 What are my options for meeting emissions and oven organic HAP value shown in Table 7 to this subpart, the standards for pultrusion operations emissions are vented to an add-on the resin is in compliance. subject to the 60 weight percent organic control device, use Equation 1 of this (2) You may also use a weighted HAP emissions reductions requirement? section to demonstrate compliance. In average organic HAP content for each * * * * * all other situations, use Equation 2 of application method described in (b) * * * this section to demonstrate compliance.
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 ER25AU05.015 ER25AU05.016 50128 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
(Inlet)− (Outlet) PR = × 100 (Eq. 1) (Inlet)
Where: Inlet+HAP emissions entering the control Outlet=HAP emissions existing the control PR=percent reduction; device, lbs per year; device to the atmosphere, lbs per year.
()()WAE+−OO WAE + PR = cici co co × 100 (Eq. 2) +++ ()WAEci WAE u O ci O u
Where: Oju=oven organic HAP emissions, lbs per Ojco=oven organic HAP emissions, lbs per PR=percent reduction; year, not vented to a control device; year, from the control device outlet. WAEici=wet-out area organic HAP emissions, Ojci=oven organic HAP emissions, lbs per lbs per year, vented to a control device; year, vented to a control device; (b) Averaging option. Use Equation 3 WAEiu=wet-out area organic HAP emissions, WAEico=wet-out area organic HAP emissions, of this section to calculate percent lbs per year, not vented to a control lbs per year, from the control device reduction. device; outlet;
m n m n + −+ ∑∑WAEici∑ Ojci ∑ WAEi co Ojco i==11j=1 i=1 j PR = × 100 (Eq. 3) m n m n ++ + ∑∑WAEici∑ Ojci ∑ WAEi u Oju i==11j=1 i=1 j
Where: and you must include the list of these and/or by including in each compliance PR=percent reduction; resins and gel coats and identify their report a statement that individual resins WAEici=wet-out area organic HAP emissions application methods in your semiannual and gel coats, as applied, meet the from wet-out area i, lbs per year, sent to compliance reports. If after you have appropriate organic HAP emissions a control device; initially demonstrated that a specific limits, as discussed in § 63.5895(d). WAEiu=wet-out area organic HAP emissions from wet-out area i, lbs per year, not sent combination of an individual resin or (3) Compliance with organic HAP to a control device; gel coat, application method, and content limits in Table 7 to this subpart WAEico=wet-out area organic HAP emissions controls meets its applicable emission is demonstrated by maintaining an from wet-out area i, lbs per year, at the limit, and the resin or gel coat changes average organic HAP content value less outlet of a control device; or the organic HAP content increases, or than or equal to the appropriate organic Oju=organic HAP emissions from oven j, lbs you change the application method or per year, not sent to a control device; HAP contents listed in Table 7 to this controls, then you again must subpart, on a 12-month rolling average, Ojci=organic HAP emissions from oven j, lbs demonstrate that the individual resin or per year, sent to a control device; and/or by including in each compliance gel coat meets its emission limit as Ojco=organic HAP emissions from oven j, lbs report a statement that resins and gel per year, at the outlet of the control specified in paragraph (a) of § 63.5810. coats individually meet the appropriate device; If any of the previously mentioned organic HAP content limits in Table 7 m=number of wet-out areas; changes results in a situation where an to this subpart, as discussed in n=number of ovens. individual resin or gel coat now exceeds § 63.5895(d). its applicable emission limit in Table 3 (c) Add-on control device option. Use * * * * * Equation 1 of this section to calculate or 5 of this subpart, you must begin percent reduction. collecting resin and gel coat use records n 11. Section 63.5910 is amended by: and calculate compliance using one of (d) Combination option. Use n a. Revising paragraph (f); and Equations 1 through 3 of this section, as the averaging options on a 12-month n b. Adding paragraph (i) to read as applicable, to calculate percent rolling average. follows. reduction. * * * * * n 9. Section 63.5895 is amended by n 10. Section 63.5900 is amended by § 63.5910 What reports must I submit and revising paragraph (d) to read as follows: revising paragraphs (a)(2) and (3) to read when? as follows: § 63.5895 How do I monitor and collect * * * * * data to demonstrate continuous § 63.5900 How do I demonstrate (f) You must report if you have compliance? continuous compliance with the standards? exceeded the 100 tpy organic HAP * * * * * (a) * * * emissions threshold if that exceedance (d) Resin and gel coat use records are (2) Compliance with organic HAP would make your facility subject to not required for the individual resins emissions limits is demonstrated by § 63.5805(a)(1) or (d). Include with this and gel coats that are demonstrated, as maintaining an organic HAP emissions report any request for an exemption applied, to meet their applicable factor value less than or equal to the under § 63.5805(e). If you receive an emission as defined in § 63.5810(a). appropriate organic HAP emissions exemption under § 63.5805(e) and However, you must retain the records of limit listed in Table 3 or 5 to this subsequently exceed the 100 tpy organic resin and gel coat organic HAP content, subpart, on a 12-month rolling average, HAP emissions threshold, you must
VerDate jul<14>2003 19:04 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 ER25AU05.017 ER25AU05.018 ER25AU05.019 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50129
report this exceedance as required in plus, and Polymer casting to read as does not include any added filler, § 63.5805(f). follows: reinforcements, catalysts, or promoters. * * * * * Neat resin plus does include any § 63.5935 What definitions apply to this additions of styrene or methyl (i) Where multiple compliance subpart? options are available, you must state in methacrylate monomer in any form, * * * * * including in catalysts and promoters. your next compliance report if you have High Performance gel coat means a * * * * * changed compliance options since your gel coat used on products for which last compliance report. National Sanitation Foundation, United Polymer casting means a process for n 12. Section 63.5915 is amended by States Department of Agriculture, fabricating composites in which revising paragraph (e) introductory text ASTM, durability, or other property composite materials are ejected from a to read as follows: testing is required. casting machine or poured into an open, partially open, or closed mold and § 63.5915 What records must I keep? * * * * * cured. After the composite materials are Mixing means the blending or * * * * * poured into the mold, they are not agitation of any HAP-containing rolled out or worked while the mold is (e) For a new or existing continuous materials in vessels that are 5.00 gallons lamination/ casting operation, you must open, except for smoothing the material (18.9 liters) or larger, and includes the and/or vibrating the mold to remove keep the records listed in paragraphs mixing of putties or polyputties. Mixing (e)(1) through (4) of this section, when bubbles. The composite materials may may involve the blending of resin, gel or may not include reinforcements. complying with the percent reduction coat, filler, reinforcement, pigments, and/or lbs/ton requirements specified in Products produced by the polymer catalysts, monomers, and any other casting process include cultured marble paragraphs (a) and (c) through (d) of additives. § 63.5805. products and polymer concrete. * * * * * * * * * * * * * * * Neat resin plus means neat resin plus n 13. Section 63.5935 is amended to any organic HAP-containing materials n 14. Table 1 to subpart WWWW of part revise the definitions of High that are added to the resin by the 63 is revised to read as follows: performance gel coat, Mixing, Neat resin supplier or the facility. Neat resin plus BILLING CODE 6560–50–P
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 50130 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUR3.SGM 25AUR3 ER25AU05.020 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50131
BILLING CODE 6560–50–C As specified in § 63.5805, you must n 15. Table 3 to subpart WWWW of part meet the following organic HAP 63 is revised to read as follows: emissions limits that apply to you:
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 ER25AU05.021 50132 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
TABLE 3 TO SUBPART WWWW OF PART 63.—ORGANIC HAP EMISSIONS LIMITS FOR SPECIFIC OPEN MOLDING, CENTRIFUGAL CASTING, PULTRUSION AND CONTINUOUS LAMINATION/CASTING OPERATIONS
If your operation type is . . . And you use . . . 1 Your organic HAP emissions limit is . . .
1. open molding—corrosion-resistant and/or a. mechanical resin application ...... 113 lb/ton. high strength (CR/HS). b. filament application ...... 171 lb/ton. c. manual resin application ...... 123 lb/ton.
2. open molding—non-CR/HS ...... a. mechanical resin application ...... 88 lb/ton. b. filament application ...... 188 lb/ton. c. manual resin application ...... 87 lb/ton.
3. open molding—tooling ...... a. mechanical resin application ...... 254 lb/ton. b. manual resin application ...... 157 lb/ton.
4. open molding—low-flame spread/low-smoke a. mechanical resin application ...... 497 lb/ton. products. b. filament application ...... 270 lb/ton. c. manual resin application ...... 238 lb/ton.
5. open molding—shrinkage controlled resins 2 a. mechanical resin application ...... 354 lb/ton. b. filament application ...... 215 lb/ton. c. manual resin application ...... 180 lb/ton.
6. open molding—gel coat 3 ...... a. tooling gel coating ...... 440 lb/ton. b. white/off white pigmented gel coating ...... 267 lb/ton. c. all other pigmented gel coating ...... 377 lb/ton. d. CR/HS or high performance gel coat ...... 605 lb/ton. e. fire retardant gel coat ...... 854 lb/ton. f. clear production gel coat ...... 522 lb/ton.
7. centrifugal casting—CR/HS ...... a. resin application with the mold closed, and 25 lb/ton.4 the mold is vented during spinning and cure. NA—this is considered to be a closed molding b. resin application with the mold closed, and operation. the mold is not vented during spinning and 25 lb/ton.4 cure. Use the appropriate open molding emission c. resin application with the mold open, and limit.5 the mold is vented during spinning and cure. d. resin application with the mold open, and the mold is not vented during spinning and cure.
8. centrifugal casting—non-CR/HS ...... a. resin application with the mold closed, and 20 lb/ton.4 the mold is vented during spinning and cure. NA—this is considered to be a closed molding b. resin application with the mold closed, and operation. mold is not vented during the spinning and 20 lb/ton.4 cure. Use the appropriate open molding emission c. resin application with the mold open, and limit.5 the mold is vented during spinning and cure. d. resin application with the mold open, and the mold is not vented during spinning and cure.
9. pultrusion 6 ...... N/A ...... reduce total organic HAP emissions by at least 60 weight percent.
10. continuous lamination/casting ...... N/A ...... reduce total organic HAP emissions by at least 58.5 weight percent or not exceed a organic HAP emissions limit of 15.7 lbs of organic HAP per ton of neat resin plus and neat gel coat plus. 1 Organic HAP emissions limits for open molding and centrifugal casting are expressed as lb/ton. You must be at or below these values based on a 12-month rolling average. 2 This emission limit applies regardless of whether the shrinkage controlled resin is used as a production resin or a tooling resin. 3 If you only apply gel coat with manual application, for compliance purposes treat the gel coat as if it were applied using atomized spray guns to determine both emission limits and emission factors. If you use multiple application methods and any portion of a specific gel coat is applied using nonatomized spray, you may use the nonatomized spray gel coat equation to calculate an emission factor for the manually applied portion of that gel coat. Otherwise, use the atomized spray gel coat application equation to calculate emission factors. 4 For compliance purposes, calculate your emission factor using only the appropriate centrifugal casting equation in item 2 of Table 1 to this subpart, or a site specific emission factor for after the mold is closed as discussed in § 63.5796. 5 Calculate your emission factor using the appropriate open molding covered cure emission factor in item 1 of Table 1 to this subpart, or a site specific emission factor as discussed in § 63.5796. 6 Pultrusion machines that produce parts that meet the following criteria: 1,000 or more reinforcements or the glass equivalent of 1,000 ends of 113 yield roving or more; and have a cross sectional area of 60 square inches or more are not subject to this requirement. Their requirement is the work practice of air flow management which is described in Table 4 to this subpart.
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50133
n 16. Table 4 to subpart WWWW of part As specified in § 63.5805, you must 63 is revised to read as follows: meet the work practice standards in the following table that apply to you: TABLE 4 TO SUBPART WWWW OF PART 63.—WORK PRACTICE STANDARDS
For . . . You must . . .
1. a new or existing closed molding operation using compres- uncover, unwrap or expose only one charge per mold cycle per compression/in- sion/injection molding. jection molding machine. For machines with multiple molds, one charge means sufficient material to fill all molds for one cycle. For machines with robotic load- ers, no more than one charge may be exposed prior to the loader. For ma- chines fed by hoppers, sufficient material may be uncovered to fill the hopper. Hoppers must be closed when not adding materials. Materials may be uncov- ered to feed to slitting machines. Materials must be recovered after slitting.
2. a new or existing cleaning operation ...... not use cleaning solvents that contain HAP, except that styrene may be used as a cleaner in closed systems, and organic HAP containing cleaners may be used to clean cured resin from application equipment. Application equipment includes any equipment that directly contacts resin.
3. a new or existing materials HAP-containing materials stor- keep containers that store HAP-containing materials closed or covered except age operation. during the addition or removal of materials. Bulk HAP-containing materials stor- age tanks may be vented as necessary for safety.
4. an existing or new SMC manufacturing operation ...... close or cover the resin delivery system to the doctor box on each SMC manu- facturing machine. The doctor box itself may be open.
5. an existing or new SMC manufacturing operation ...... use a nylon containing film to enclose SMC.
6. all mixing or BMC manufacturing operations1 ...... use mixer covers with no visible gaps present in the mixer covers, except that gaps of up to 1 inch are permissible around mixer shafts and any required in- strumentation.
7. all mixing or BMC manufacturing operations1 ...... close any mixer vents when actual mixing is occurring, except that venting is al- lowed during addition of materials, or as necessary prior to adding materials or opening the cover for safety. Vents routed to a 95 percent efficient control de- vice are exempt from this requirement.
8. all mixing or BMC manufacturing operations1 ...... keep the mixer covers closed while actual mixing is occurring except when add- ing materials or changing covers to the mixing vessels.
9. a new or existing pultrusion operation manufacturing parts i. not allow vents from the building ventilation system, or local or portable fans to that meet the following criteria: 1,000 or more reinforce- blow directly on or across the wet-out area(s), ments or the glass equivalent of 1,000 ends of 113 yield ii. not permit point suction of ambient air in the wet-out area(s) unless that air is roving or more; and have a cross sectional area of 60 directed to a control device, square inches or more that is not subject to the 95 percent iii. use devices such as deflectors, baffles, and curtains when practical to reduce organic HAP emission reduction requirement. air flow velocity across the wet-out area(s), iv. direct any compressed air exhausts away from resin and wet-out area(s), v. convey resin collected from drip-off pans or other devices to reservoirs, tanks, or sumps via covered troughs, pipes, or other covered conveyance that shields the resin from the ambient air, vi. cover all reservoirs, tanks, sumps, or HAP-containing materials storage ves- sels except when they are being charged or filled, and vii. cover or shield from ambient air resin delivery systems to the wet-out area(s) from reservoirs, tanks, or sumps where practical. 1 Containers of 5 gallons or less may be open when active mixing is taking place, or during periods when they are in process (i.e., they are ac- tively being used to apply resin). For polymer casting mixing operations, containers with a surface area of 500 square inches or less may be open while active mixing is taking place.
n 17. The title and introductory text to HAP emissions reductions requirement, values shown in the following table, or Table 5 to subpart WWWW of part 63 are you may meet the appropriate organic any combination of resins whose revised to read as follows: HAP emissions limits in the following weighted average organic HAP content table: Table 5 to Subpart WWW of Part 63.— based on a 12-month rolling average is Alternative Organic HAP Emissions * * * * * less than or equal to the values shown Limits for Open Molding, Centrifugal n 18. Table 7 to subpart WWWW of part the following table: Casting, and SMC Manufacturing 63 is revised to read as follows: Operations Where the Standards are As specified in § 63.5810(d), when Based on a 95 Percent Reduction electing to use the same resin(s) for Requirement multiple resin application methods, you As specified in § 63.5805, as an may use any resin(s) with an organic alternative to the 95 percent organic HAP content less than or equal to the
VerDate jul<14>2003 17:54 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 50134 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
TABLE 7—TO SUBPART WWWW OF PART 63.—OPTIONS ALLOWING USE OF THE SAME RESIN ACROSS DIFFERENT OPERATIONS THAT USE THE SAME RESIN TYPE
The highest resin weight is* * * percent organic HAP con- If your facility has the following resin type and application tent, or weighted average weight percent organic HAP con- is . . . method . . . tent, you can use for . . .
1. CR/HS resins, centrifugal casting 12 ...... a. CR/HS mechanical ...... 3 48.0 b. CR/HS filament application ...... 48.0 c. CR/HS manual ...... 48.0
2. CR/HS resins, nonatomized mechanical ...... a. CR/HS filament application ...... 46.4 b. CR/HS manual ...... 46.4
3. CR/HS resins, filament application ...... CR/HS manual ...... 42.0
4. non-CR/HS resins, filament application ...... a. non-CR/HS mechanical ...... 3 45.0 b. non-CR/HS manual ...... 45.0 c. non-CR/HS centrifugal casting 12 ...... 45.0
5. non-CR/HS resins, nonatomized mechanical ...... a. non-CR/HS manual ...... 38.5 b. non-CR/HS centrifugal casting 12 ...... 38.5 6. non-CR/HS resins, centrifugal casting 12 ...... non-CR/HS manual ...... 37.5 7. tooling resins, nonatomized mechanical ...... tooling manual ...... 91.4 8. tooling resins, manual ...... tooling atomized mechanical ...... 45.9 1 If the centrifugal casting operation blows heated air through the molds, then 95 percent capture and control must be used if the facility wishes to use this compliance option. 2 If the centrifugal casting molds are not vented, the facility may treat the centrifugal casting operations as if they were vented if they wish to use this compliance option. 3 Nonatomized mechanical application must be used.
n 19. Table 8 to subpart WWWW of part As specified in § 63.5860(a), you must organic HAP emissions limits as 63 is revised to read as follows: demonstrate initial compliance with specified in the following table: TABLE 8 TO SUBPART WWWW OF PART 63.—INITIAL COMPLIANCE WITH ORGANIC HAP EMISSIONS LIMITS
That must meet the following organic HAP You have demonstrated initial compliance For . . . emissions limit . . . if . . .
1. open molding and centrifugal casting oper- a. an organic HAP emissions limit shown in i. you have met the appropriate organic HAP ations. Tables 3 or 5 to this subpart, or an organic emissions limits for these operations as cal- HAP content limit shown in Table 7 to this culated using the procedures in § 63.5810 subpart. on a 12-month rolling average 1 year after the appropriate compliance date, and/or ii. you demonstrate that any individual resins or gel coats not included in (i) above, as applied, meet their applicable emission lim- its, or iii. you demonstrate using the appropriate val- ues in Table 7 to this subpart that the weighted average of all resins and gel coats for each resin type and application method meet the appropriate organic HAP contents.
2. open molding centrifugal casting, continuous a. reduce total organic HAP emissions by at total organic HAP emissions, based on the re- lamination/casting, SMC and BMC manufac- least 95 percent by weight. sults of the capture efficiency and destruc- turing, and mixing operations. tion efficiency testing specified in Table 6 to this subpart, are reduced by at least 95 per- cent by weight.
3. continuous lamination/casting operations ...... a. reduce total organic HAP emissions, by at total organic HAP emissions, based on the re- least 58.5 weight percent, or sults of the capture efficiency and destruc- tion efficiency in Table 6 to this subpart and the calculation procedures specified in §§ 63.5865 through 63.5890, are reduced by at least 58.5 percent by weight. b. not exceed an organic HAP emissions limit total organic HAP emissions, based on the re- of 15.7 lbs of organic HAP per ton of neat sults of the capture efficiency and destruc- resin plus and neat gel coat plus. tion efficiency testing specified in Table 6 to this subpart and the calculation procedures specified in §§ 63.5865 through 63.5890, do not exceed 15.7 lbs of organic HAP per ton of neat resin plus and neat gel coat plus.
VerDate jul<14>2003 18:13 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations 50135
TABLE 8 TO SUBPART WWWW OF PART 63.—INITIAL COMPLIANCE WITH ORGANIC HAP EMISSIONS LIMITS—Continued
That must meet the following organic HAP You have demonstrated initial compliance For . . . emissions limit . . . if . . .
4. continuous lamination/casting operations ...... a. reduce total organic HAP emissions by at total organic HAP emissions, based on the re- least 95 weight percent or sults of the capture efficiency and destruc- tion efficiency testing specified in Table 6 to this subpart and the calculation procedures specified in §§ 63.5865 through 63.5890, are reduced by at least 95 percent by weight b. not exceed an organic HAP emissions limit total organic HAP emissions, based on the re- of 1.47 lbs of organic HAP per ton of neat sults of the capture efficiency and destruc- resin plus and neat gel coat plus. tion efficiency testing specified in Table 6 and the calculation procedures specified in §§ 63.5865 through 63.5890, do not exceed 1.47 lbs of organic HAP of per ton of neat resin plus and neat gel coat plus.
5. pultrusion operations ...... a. reduce total organic HAP emissions by at i. total organic HAP emissions, based on the least 60 percent by weight. results of the capture efficiency and add-on control device destruction efficiency testing specified in Table 6 to this subpart, are re- duced by at least 60 percent by weight, and/or ii. as part of the notification of initial compli- ance status, the owner/operator submits a certified statement that all pultrusion lines not controlled with an add-on control de- vice, but for which an emission reduction is being claimed, are using direct die injection, and/or wet-area enclosures that meet the criteria of § 63.5830.
6. pultrusion operations ...... a. reduce total organic HAP emissions by at i. total organic HAP emissions, based on the least 95 percent by weight. results of the capture efficiency and add-on control device destruction efficiency testing specified in Table 6 to this subpart, are re- duced by at least 95 percent by weight.
n 20. Table 9 to subpart WWWW of part As specified in § 63.5860(a), you must work practice standards as specified in 63 is revised to read as follows: demonstrate initial compliance with the following table: TABLE 9 TO SUBPART WWWW OF PART 63.—INITIAL COMPLIANCE WITH WORK PRACTICE STANDARDS
You have demonstrated initial compliance if For . . . That must meet the following standards ......
1. a new or existing closed molding operation uncover, unwrap or expose only one charge the owner or operator submits a certified using compression/injection molding. per mold cycle per compression/injection statement in the notice of compliance status molding machine. For machines with mul- that only one charge is uncovered, un- tiple molds, one charge means sufficient wrapped, or exposed per mold cycle per material to fill all molds for one cycle. For compression/injection molding machine, or machines with robotic loaders, no more prior to the loader, hoppers are closed ex- than one charge may be exposed prior to cept when adding materials, and materials the loader. For machines fed by hoppers, are recovered after slitting. sufficient material may be uncovered to fill the hopper. Hoppers must be closed when not adding materials. Materials may be un- covered to feed to slitting machines. Mate- rials must be recovered after slitting.
2. a new or existing cleaning operation ...... not use cleaning solvents that contain HAP, the owner or operator submits a certified except that styrene may be used in closed statement in the notice of compliance status systems, and organic HAP containing mate- that all cleaning materials, except styrene rials may be used to clean cured resin from contained in closed systems, or materials application equipment. Application equip- used to clean cured resin from application ment includes any equipment that directly equipment, contain no HAP. contacts resin between storage and apply- ing resin to the mold or reinforcement.
VerDate jul<14>2003 18:13 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 50136 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Rules and Regulations
TABLE 9 TO SUBPART WWWW OF PART 63.—INITIAL COMPLIANCE WITH WORK PRACTICE STANDARDS—Continued
You have demonstrated initial compliance if For . . . That must meet the following standards ......
3. a new or existing materials HAP-containing keep containers that store HAP-containing the owner or operator submits a certified materials storage operation. materials closed or covered except during statement in the notice of compliance status the addition or removal of materials. Bulk that all HAP-containing storage containers HAP-containing materials storage tanks are kept closed or covered except when may be vented as necessary for safety. adding or removing materials, and that any bulk storage tanks are vented only as nec- essary for safety.
4. an existing or new SMC manufacturing oper- close or cover the resin delivery system to the the owner or operator submits a certified ation. doctor box on each SMC manufacturing statement in the notice of compliance status machine. The doctor box itself may be open. that the resin delivery system is closed or covered.
5. an existing or new SMC manufacturing oper- use a nylon containing film to enclose SMC ... the owner or operator submits a certified ation. statement in the notice of compliance status that a nylon-containing film is used to en- close SMC.
6. an existing or new mixing or BMC manufac- use mixer covers with no visible gaps present the owner or operator submits a certified turing operation. in the mixer covers, except that gaps of up statement in the notice of compliance status to 1 inch are permissible around mixer that mixer covers are closed during mixing shafts and any required instrumentation. except when adding materials to the mix- ers, and that gaps around mixer shafts and required instrumentation are less than 1 inch.
7. an existing mixing or BMC manufacturing op- not actively vent mixers to the atmosphere the owner or operator submits a certified eration. while the mixing agitator is turning, except statement in the notice of compliance status that venting is allowed during addition of that mixers are not actively vented to the materials, or as necessary prior to adding atmosphere when the agitator is turning ex- materials for safety. cept when adding materials or as nec- essary for safety.
8. a new or existing mixing or BMC manufac- keep the mixer covers closed during mixing the owner or operator submits a certified turing operation. except when adding materials to the mixing statement in the notice of compliance status vessels. that mixers closed except when adding ma- terials to the mixing vessels.
9. a new or existing pultrusion operation manu- i. Not allow vents from the building ventilation the owner or operator submits a certified facturing parts that meet the following criteria: system, or local or portable fans to blow di- statement in the notice of compliance status 1,000 or more reinforcements or the glass rectly on or across the wet-out area(s), that they have complied with all the require- equivalent of 1,000 ends of 113 yield roving ii. not permit point suction of ambient air in ments listed in 9.i through 9.vii. or more; and have a cross sectional area of the wet-out area(s) unless that air is di- 60 square inches or more that is not subject rected to a control device, to the 95 percent organic HAP emission re- iii. use devices such as deflectors, baffles, duction requirement. and curtains when practical to reduce air flow velocity across the wet-out area(s), iv. direct any compressed air exhausts away from resin and wet-out area(s), v. convey resin collected from drip-off pans or other devices to reservoirs, tanks, or sumps via covered troughs, pipes, or other cov- ered conveyance that shields the resin from the ambient air, vi. clover all reservoirs, tanks, sumps, or HAP-containing materials storage vessels except when they are being charged or filled, and vii. cover or shield from ambient air resin de- livery systems to the wet-out area(s) from reservoirs, tanks, or sumps where practical.
[FR Doc. 05–16701 Filed 8–24–05; 8:45 am] BILLING CODE 6560–50–P
VerDate jul<14>2003 18:13 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\25AUR3.SGM 25AUR3 Thursday, August 25, 2005
Part VI
Department of Housing and Urban Development Proposed Fair Market Rents for Fiscal Year 2006 for Housing Choice Voucher, Moderate Rehabilitation Single Room Occupancy and Certain Other HUD Programs; Supplemental Notice on 50th Percentile Designation; Notice
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\25AUN3.SGM 25AUN3 50138 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
DEPARTMENT OF HOUSING AND 245–2691 or access the information on develop proposed FMRs, publish them URBAN DEVELOPMENT the HUD Web site at http:// for public comment, provide a public www.huduser.org/datasets/fmr.html. comment period of at least 30 days, [Docket No. FR–4995–N–02; HUD–2005– 0017] FMRs are listed at the 40th or 50th analyze the comments, and publish final percentile in Schedule B of this notice. FMRs. (See 24 CFR 888.115.) HUD Proposed Fair Market Rents for Fiscal For informational purposes, a table of published its notice on proposed Year 2006 for Housing Choice 40th percentile recent mover rents for FY2006 FMRs on June 2, 2005 (70 FR Voucher, Moderate Rehabilitation the areas with 50th percentile FMRs 32402), and provided a 60-day public Single Room Occupancy and Certain will be provided on the same Web site comment period. In the June 2, 2005, Other HUD Programs; Supplemental noted above. Any questions related to notice, HUD advised that it would Notice on 50th Percentile Designation use of FMRs or voucher payment publish a separate notice to identify any standards should be directed to the areas that may be newly eligible for 50th AGENCY: Office of the Secretary, HUD. respective local HUD program staff. percentile FMRs as well as any areas ACTION: Notice. Questions on how to conduct FMR that remain eligible or no longer remain surveys or further methodological eligible for 50th percentile FMRs, as SUMMARY: Section 8(c)(1) of the United explanations may be addressed to Marie provided in HUD’s regulations. States Housing Act of 1937 (USHA) L. Lihn or Lynn A. Rodgers, Economic requires the Secretary to publish FMRs Fiftieth percentile FMRs were and Market Analysis Division, Office of establish by a rule published on October periodically, but not less than annually, Economic Affairs, Office of Policy to be effective on October 1 of each year. 2, 2000 (65 FR 58870), that also Development and Research, telephone established the eligibility criteria used On June 2, 2005, HUD published a (202) 708–0590. Persons with hearing or notice on proposed fair market rents to select areas that would be assigned speech impairments may access this 50th rather than the normal 40th (FMRs) for Fiscal Year (FY) 2006. In the number through TTY by calling the toll- June 2, 2005, notice, HUD advised that percentile FMRs. The objective was to free Federal Information Relay Service give PHAs a tool to assist them in de- it would also publish a separate notice at (800) 877–8339. (Other than the HUD to identify any areas that may be newly concentrating voucher program use USER information line and TTY patterns. The preamble to the October 2, eligible for 50th percentile FMRs as well numbers, telephone numbers are not toll as any areas that remain eligible or that 2000, rule noted that a PHA for which free.) Electronic Data Availability: This 50th percentile FMRs were provided are no longer eligible for 50th percentile Federal Register notice is available FMRs, as provided in HUD’s could advise HUD that its jurisdiction electronically from the HUD news page: does not require the higher payment regulations. This notice provides this http://www.hudclips.org. Federal information. It identifies 24 areas standards based on the 50th percentile Register notices also are available and obtain HUD approval to continue or eligible for 50th percentile FMRs, which electronically from the U.S. Government consists of areas that remain eligible for establish payment standards below 90 Printing Office Web site at http:// percent of the 50th percentile. (See 65 50th percentile FMRs plus areas that are www.gpoaccess.gov/fr/index.html. newly eligible. FR 58871). The three criteria for 50th SUPPLEMENTARY INFORMATION: percentile FMRs are: DATES: Comments Due Date: September 26, 2005. I. Background The three FMR area eligibility criteria were: ADDRESSES: Interested persons are Section 8 of the USHA (42 U.S.C. invited to submit comments regarding 1437f) authorizes housing assistance to 1. FMR Area Size: the FMR area had HUD’s estimates of the FMRs, as aid lower income families in renting to have at least 100 census tracts. published in this notice, to the Office of safe and decent housing. Housing 2. Concentration of Affordable Units: the General Counsel, Rules Docket assistance payments are limited by 70 percent or fewer of the tracts with at Clerk, Department of Housing and FMRs established by HUD for different least 10 two-bedroom units had at least Urban Development, 451 Seventh Street, areas. In the Housing Choice Voucher 30 percent of these units with gross SW., Room 10276, Washington, DC program, the FMR is the basis for rents at or below the 40th percentile 20410–0001. Communications should determining the ‘‘payment standard two-bedroom FMR; and, refer to the above docket number and amount’’ used to calculate the 3. Concentration of Participants: 25 title and should contain the information maximum monthly subsidy for an percent or more of the tenant-based specified in the ‘‘Request for assisted family (see 24 CFR 982.503). In rental program participants in the FMR Comments’’ section. To ensure that the general, the FMR for an area is the area resided in the 5 percent of census information is fully considered by all of amount that would be needed to pay the tracts with the largest number of the reviewers, each commenter is gross rent (shelter rent plus utilities) of program participants. requested to submit two copies of its privately owned, decent, and safe rental comments, one to the Rules Docket housing of a modest (non-luxury) nature The rule also specified that areas Clerk and the other to the Economic and with suitable amenities. In addition, all assigned 50th percentile FMRs were to Market Analysis Staff in the appropriate rents subsidized under the Housing be re-evaluated after three years, and HUD field office. A copy of each Choice Voucher program must meet that the 50th percentile rents would be communication submitted will be reasonable rent standards. The interim rescinded unless an area has made at available for public inspection and rule published on October 2, 2000 (65 least a fraction of a percent progress in copying during regular business hours FR 58870), established 50th percentile reducing concentration and otherwise (8 a.m. to 5 p.m. Eastern Time) at the FMRs for certain areas. remains eligible. (See 24 CFR 888.113.) above address. Section 8(c) of the USHA requires the As noted in the June 2, 2005, notice, the FOR FURTHER INFORMATION CONTACT: For Secretary of HUD to publish FMRs three-year period for the first areas technical information on the periodically, but not less frequently determined eligible to receive the 50th methodology used to develop FMRs or than annually. HUD’s regulations percentile FMRs, following a listing of all FMRs, please call the implementing section 8(c), codified at promulgation of the regulation in HUD USER information line at 800– 24 CFR part 888, provide that HUD will § 888.113, has come to a close.
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\25AUN3.SGM 25AUN3 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50139
II. 50th Percentile FMR Areas for percentile FMRs because the TABLE 1.—PROPOSED FY2006 50TH FY2006 information on concentration of voucher PERCENTILE FMR AREAS LISTED IN Based on its assessment, HUD has program participants needed to make JUNE 2, 2005, NOTICE—Continued determined that only 14 of the 48 areas the eligibility determination was of Orange County, CA HMFA assigned 50th percentile FMRs in the inadequate quality as described in this section. Table 1 lists the 48 FMR areas *Oxnard-Thousand Oaks-Ventura, CA MSA June 2, 2005, notice shall continue to be *+Philadelphia-Camden-Wilmington, PA-NJ- assigned 50th percentile FMRs. Only that were assigned proposed FY2006 FMRs set at the 50th percentile based on DE-MD MSA these 14 areas met the regulatory Phoenix-Mesa-Scottsdale, AZ MSA requirements for continued eligibility. new FMR area definitions. Table 1 *Pottawatomie County, OK In addition to these 14 areas that includes the 39 areas originally Richmond, VA HMFA continue to remain eligible for 50th determined eligible for 50th percentile *+Sacramento—Arden-Arcade—Roseville, percentile FMRs, HUD identified 10 FMRs (following the October 2000 final CA areas currently assigned 40th percentile rule that allowed 50th percentile FMRs) *Salt Lake City, UT HMFA *San Antonio, TX HMFA FMRs that are eligible for 50th plus subparts of these areas that were separated from the original areas in *San Diego-Carlsbad-San Marcos, CA MSA percentile FMRs. These 24 areas are as *San Jose-Sunnyvale-Santa Clara, CA HMFA follows (note that the acronym MSA accordance with the new Office of Management and Budget (OMB) *St. Louis, MO-IL HMFA refers to metropolitan statistical area, *Tampa-St. Petersburg-Clearwater, FL MSA and HMFA refers to HUD Metro FMR metropolitan area definitions. Those *Tulsa, OK HMFA area as defined in the June 2, 2005, areas marked by an asterisk (*) in Table Virginia Beach-Norfolk-Newport News, VA- notice): 1 failed to meet one or more eligibility NC MSA criteria as described below, including *Warren County, NJ HMFA Albuquerque, NM MSA. measurable deconcentration. Those Washington-Arlington-Alexandria, DC-VA-MD Austin-Round Rock, TX MSA. areas marked by a plus sign (+) in Table HMFA Baltimore-Towson, MD MSA. 1 had insufficient information, as *Wichita, KS HMFA Chicago-Naperville-Joliet, IL HMFA. described below, upon which to Denver-Aurora, CO MSA. The following subsections describe Fort Worth-Arlington, TX HMFA. determine concentration of voucher HUD’s application of the eligibility Grand Rapids-Wyoming, MI HMFA. program participants and are deemed criteria for 50th percentile FMRs, set Hartford-West Hartford-East Hartford, ineligible for 50th percentile FMRs. forth in 24 CFR 888.113, to the proposed CT HMFA. Only 14 of these areas met all of the FY2006 50th percentile FMR areas, and Honolulu, HI MSA. eligibility criteria including information explain which areas lost eligibility for Houston-Baytown-Sugar Land, TX quality requirements and had the 50th percentile FMR based on each HMFA. measurable deconcentration. Kansas City, MO-KS HMFA. criterion. The application of HUD’s Las Vegas-Paradise, NV MSA. TABLE 1.—PROPOSED FY2006 50TH Information Quality Guidelines and Milwaukee-Waukesha-West Allis, WI PERCENTILE FMR AREAS LISTED IN findings of ineligibility of FMR areas on MSA. JUNE 2, 2005, NOTICE the basis of inadequate information on New Haven-Meriden, CT HMFA. concentration of participants are Orange County, CA HMFA. Albuquerque, NM MSA described in the subsection on the Phoenix-Mesa-Scottsdale, AZ MSA. *Allegan County, MI ‘‘concentration of participants’’ Providence-Fall River, RI-MA HMFA. *Ashtabula County, OH (Concentration of Participants) criterion. Richmond, VA HMFA. *Atlanta-Sandy Springs-Marietta, GA HMFA The final section identifies 10 Austin-Round Rock, TX MSA additional proposed FY2006 FMR areas Riverside-San Bernardino-Ontario, CA *Baton Rouge, LA HMFA MSA. originally assigned 40th percentile *Bergen-Passaic, NJ HMFA FMRs that are eligible, under the Sarasota-Bradenton-Venice, FL MSA. *Buffalo-Niagara Falls, NY MSA Tacoma, WA HMFA. Chicago-Naperville-Joliet, IL HMFA regulatory criteria and information Tucson, AZ MSA. *Cleveland-Elyria-Mentor, OH MSA quality guidelines, for 50th percentile Virginia Beach-Norfolk-Newport News, +Dallas, TX HMFA FMRs. VA-NC MSA. Denver-Aurora, CO MSA Continued Eligibility: FMR Area Size *Detroit-Warren-Livonia, MI HMFA Washington-Arlington-Alexandria, DC- Criterion VA-MD HMFA. Fort Worth-Arlington, TX HMFA The following section provides the Grand Rapids-Wyoming, MI HMFA Application of the modified new *Holland-Grand Haven, MI MSA OMB metropolitan area definitions analysis undertaken by HUD to *Hood County, TX determine 50th percentile eligibility and Houston-Baytown-Sugar Land, TX HMFA results in several peripheral counties of 50th percentile continued eligibility. Kansas City, MO-KS HMFA FY2005 50th percentile FMR areas being Las Vegas-Paradise, NV MSA separated from their core areas. The III. Procedures for Determining 50th +Miami-Fort Lauderdale-Miami Beach, FL separated areas become either non- Percentile FMRs MSA metropolitan counties, parts of different This section describes the procedure *Minneapolis-St. Paul- metropolitan areas, or form entirely new HUD followed in evaluating which new Bloomington, MN-WI MSA metropolitan areas. Table 2 shows and currently designated areas are *Mohave County, AZ proposed FY2006 FMR areas that are *Monroe, MI MSA ineligible to receive 50th percentile eligible for 50th percentile FMRs under *Muskegon-Norton Shores, MI MSA HUD’s regulations in 24 CFR part 888. *+Newark, NJ HMFA FMRs because, as a result of the new Additionally, in accordance with HUD’s *Nye County, NV metropolitan area definitions, they each Information Quality Guidelines *Oakland-Fremont, CA HMFA have fewer than 100 census tracts and (published at 67 FR 69642), certain FMR *Ogden-Clearfield, UT MSA therefore fail to meet the FMR area size areas were deemed ineligible for 50th *Oklahoma City, OK HMFA criterion.
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 E:\FR\FM\25AUN3.SGM 25AUN3 50140 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
TABLE 2.—PROPOSED FY2006 50TH TABLE 3.—PROPOSED FY2006 50TH Under HUD’s Information Quality PERCENTILE FMR AREAS WITH PERCENTILE FMR AREAS WHERE Guidelines,2 the data used to determine FEWER THAN 100 CENSUS TRACTS AFFORDABLE UNITS ARE NOT CON- eligibility for 50th percentile FMRs CENTRATED—Continued qualifies as ‘‘influential’’ and is Tracts therefore subject to a higher ‘‘level of FMR Area 19901 2000 scrutiny and pre-dissemination review’’ Allegan County, MI ...... 21 including ‘‘robustness checks’’ because Ashtabula County, OH ...... 22 Buffalo-Niagara Falls, NY ‘‘public access to data and methods will Holland-Grand Haven, MI MSA .... 36 MSA ...... 67.7 75.4 not occur’’ due to HUD’s statutory duty Hood County, TX ...... 5 Cleveland-Elyria-Mentor, OH to protect private information.3 HUD Mohave County, AZ ...... 30 MSA ...... 62.3 70.3 Monroe, MI MSA ...... 39 cannot reasonably base the eligibility Muskegon-Norton Shores, MI Detroit-Warren-Livonia, MI decision on inadequate data. MSA ...... 45 HMFA ...... 65.7 72.7 The information used to determine Nye County, NV ...... 10 Minneapolis-St. Paul, MN-WI which FMR areas are assigned 50th Ogden-Clearfield, UT MSA ...... 93 MSA ...... 65.0 73.1 percentile FMRs is ‘‘influential’’ Pottawatomie County, OK ...... 15 Oakland-Fremont, CA HMFA 67.8 74.4 because it has ‘‘a clear and substantial Warren County, NJ HMFA ...... 23 Oklahoma City, OK HMFA ... 63.1 71.5 impact,’’ namely because it can Oxnard-Ventura, CA MSA .... 68.1 71.8 potentially affect how voucher subsidy Continued Eligibility: Concentration of St. Louis, MO-IL HMFA ...... 69.9 71.1 levels will be set in up to 108 large FMR Affordable Units Salt Lake City, UT HMFA ..... 66.3 70.6 areas containing about 59 percent of San Antonio, TX HMFA ...... 66.0 70.7 The original 50th percentile FMR voucher tenants, thereby affecting ‘‘a San Jose-Santa Clara, CA broad range of parties.’’ PHA voucher determination in 2000 measured the HMFA ...... 67.5 74.8 Concentration of Affordable Units payment standards are set according to Tampa-St. Petersburg, FL a percentage of the FMR, so the setting criterion with data from the 1990 MSA ...... 63.9 74.1 Census because 2000 Census data were of 50th percentile FMRs ‘‘has a high Tulsa, OK HMFA ...... 67.5 70.4 probability’’ of affecting subsidy levels not available. According to 2000 Census Wichita, KS HMFA ...... 68.4 70.2 data, the FMR areas, shown in Table 3, for tenants in the affected FMR areas. and assigned proposed FY2006 50th An ‘‘important’’ public policy is affected Continued Eligibility: Concentration of by the decisions rendered from the percentile FMRs have more than 70 Participants percent of their tracts containing 10 or information, namely the goal of deconcentrating voucher tenants and more rental units where at least 30 The Concentration of Participants percent of rental units rent for the 40th improving their access to jobs and criterion requires that 25 percent or improved quality of life. percentile two-bedroom FMR or less. more of voucher program participants Under HUD’s Final Information These areas therefore fail to meet the be located in the five percent of census Quality Guidelines, influential Concentration of Affordable Units tracts with the highest number of information that is developed using data criterion and are not eligible for 50th voucher participants. Otherwise, an area that cannot be released to the public percentile FMRs (FMR areas that are is not eligible for 50th percentile FMRs. under Title XIII or for ‘‘other compelling listed above as too small and also fail to The data for evaluating the interests’’ is subject to ‘‘robustness meet this criterion are not listed here). Concentration of Participants criterion checks’’ to address, among other things, In Table 3, the percentages following comes from HUD’s Public Housing ‘‘sources of bias or other error’’ and each FMR area name are, respectively, Information Center (PIC). All public ‘‘programmatic and policy the 1990 Census and 2000 Census housing authorities (PHAs) that percent of tracts containing 10 or more administer Housing Choice Voucher 2 Section 515 of the Treasury and General rental units where at least 30 percent of Government Appropriations Act for FY2001 (Pub.L. rental units rent for the 40th percentile (HCV) programs must submit, on a 106–554) directed the OMB to issue two-bedroom FMR or less. This number timely basis, family records to HUD’s governmentwide guidelines that ‘‘provide policy PIC as set forth by 24 CFR part 908 and and procedural guidance to federal agencies for must be no greater than 70 percent for ensuring and maximizing the quality, objectivity, an FMR Area to qualify for 50th the consolidated annual contributions utility, and integrity of information (including percentile FMRs. contract (CACC). PIC is the statistical information) disseminated by federal Department’s official system to track agencies.’’ Within one year after OMB issued its guidelines, agencies were directed to issue their TABLE 3.—PROPOSED FY2006 50TH and account for HCV family own guidelines that described internal mechanisms PERCENTILE FMR AREAS WHERE characteristics, income, rent, and other by which agencies ensure that their information AFFORDABLE UNITS ARE NOT CON- occupancy factors. PHAs must submit meets the standards of quality, objectivity, utility, their form HUD–50058 records and integrity. The mechanism also must allow CENTRATED affected persons to seek and obtain correction of electronically to HUD for all current information maintained and disseminated by the FMR Area 19901 2000 HCV families. Under HUD Notice PIH agency that does not comply with the guidelines. 2000–13 (HA), PHAs were required to OMB issued its final guidelines on September 28, Atlanta-Sandy Springs-Mari- successfully submit a minimum of 85 2001 (66 FR 49718), but requested additional etta, GA HMFA ...... 69.5 72.8 comment on one component of the OMB guidelines. percent of their resident records to PIC The OMB guidelines addressing additional public Baton Rouge, LA HMFA ...... 69.2 80.3 during the measurement period covered comment were published on January 3, 2002 (67 FR by this notice (this requirement was 369), and republished on February 22, 2002 (67 FR 1 The 1990 percent of tracts containing 10 or more 6452). HUD issued its Final Information Quality rental units where at least 30 percent of rental units raised to 95 percent by HUD Notice PIH Guidelines on November 18, 2002 (67 FR 69642), rent for the 40th percentile 2-bedroom FMR or less 2005–17 (HA), but this higher reporting which follow public comment on proposed is the figure computed for the original old- rate requirement is not used for guidelines published on May 30, 2002 (67 FR definition FMR area that was assigned the 50th 37851). percentile FMR in 2000. The 2000 figure may differ purposes of this notice because it does 3 Note that 13 U.S.C. 9 governs the confidentiality both because of change between the two decennial not become effective until December 31, of census data. The Privacy Act (5 U.S.C. 552) censuses as well as change in the geographic 2005, data submissions by PHAs). governs confidentiality of the data used to evaluate definition of the FMR areas. the Concentration of Participants criterion.
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 E:\FR\FM\25AUN3.SGM 25AUN3 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50141
implications.’’ The typical reason for a percent concentration criterion, is the HMFA and shares the same revised low overall reporting rate in an FMR San Diego-Carlsbad-San Marcos, CA proposed FY2006 FMRs with the area is very low reporting rates by the MSA.5 component counties of this area as largest PHAs in the FMR area (or non- indicated in Schedule B of this notice. Continued Eligibility: Deconcentration reporting in the case of Moving-to-Work Table 5 lists the areas, originally of Participants program PHAs that are not required to assigned 50th percentile FMRs, and also report). Unless it could be shown that HUD’s regulations in 24 CFR 888.113 assigned proposed FY2006 50th underreporting is essentially random specify that areas assigned 50th percentile FMRs that meet all eligibility (which would be difficult and impose a percentile rents are to be reviewed at the criteria, that have shown evidence of major administrative burden on HUD), end of three years, and that the 50th participant deconcentration, and have low reporting rates render any results percentile rents will be rescinded if no sufficient Reporting Rates as derived derived from the data inaccurate, progress has been made in from the May 31, 2005, Delinquency unreliable, and biased. deconcentrating voucher tenants. FMR Report to make an accurate assessment The setting of a reporting rate Areas that failed this test are ineligible of participant concentration. threshold for consideration of eligibility for 50th percentile FMRs for the for 50th percentile FMRs is, therefore, subsequent three years. Three FMR TABLE 5.—PROPOSED FY2006 50TH justified because it constitutes a areas with proposed FY2006 50th PERCENTILE FMR AREAS THAT ‘‘robustness check’’ on ‘‘influential percentile FMRs that passed the other SHOULD CONTINUE AS 50TH PER- information’’ as defined in HUD’s Final 50th percentile eligibility tests failed to CENTILE AREAS Information Quality Guidelines. HUD deconcentrate voucher tenants between 2000 and 2005. They are the Bergen- sets the overall FMR area minimum Albuquerque, NM MSA reporting rate standard at 85 percent Passaic, NJ HMFA, the Newark, NJ Austin-Round Rock, TX MSA based on the minimum requirements HMFA, and the Philadelphia-Camden- Chicago-Naperville-Joliet, IL HMFA established for PHA reporting rates. Wilmington, PA-NJ-DE-MD MSA. Denver-Aurora, CO MSA Of the 21 areas passing the FMR Area With the exception of the Bergen- Fort Worth-Arlington, TX HMFA Size and Concentration of Affordable Passaic, NJ HMFA, however, this Grand Rapids-Wyoming, MI HMFA Units criteria, the five listed below in conclusion is based on poor quality Houston-Baytown-Sugar Land, TX HMFA Table 4 have data quality issues in data. The other two areas do not have Kansas City, MO-KS HMFA measuring Concentration of Participants sufficient reporting rates as derived Las Vegas-Paradise, NV MSA from the May 31, 2005, Delinquency Orange County, CA HMFA in 2005 because of low reporting by Phoenix-Mesa-Scottsdale, AZ MSA PHAs in the FMR area. Report to measure deconcentration Richmond, VA HMFA progress. Therefore, the Newark, NJ Virginia Beach-Norfolk-Newport News, VA- TABLE 4.—PROPOSED FY2006 50TH HMFA and the Philadelphia-Camden- NC MSA PERCENTILE FMR AREAS MEETING Wilmington, PA-NJ-DE-MD MSA are Washington-Arlington-Alexandria, DC-VA-MD FMR AREA SIZE AND CONCENTRA- ineligible for 50th percentile FMRs HMFA TION OF AFFORDABLE UNITS CRI- because neither concentration nor TERIA, BUT HAVING REPORTING deconcentration progress can be Newly Eligible Areas measured accurately based on data RATES BELOW 85 PERCENT AS DE- Table 6 lists the FY2006 FMR areas provided by PHA reporting. If reporting not originally assigned proposed 50th RIVED FROM THE MAY 31, 2005, in these FMR areas has increased DELINQUENCY REPORT 4 percentile FMRs that meet the eligibility sufficiently when future evaluations of requirements for 50th percentile FMRs deconcentration are made, and and have sufficient Reporting Rates as Dallas, TX HMFA ...... 83.2 eligibility can be established with Miami-Fort Lauderdale-Miami Beach, derived from the May 31, 2005, increased reporting rates, the 50th Delinquency Report (more than 85 FL MSA ...... 83.5 percentile FMRs could be reinstated Newark, NJ HMFA ...... 79.9 percent overall for the FMR area) to before the end of a three-year hiatus. Philadelphia-Camden-Wilmington, evaluate the Concentration of Since the Bergen-Passaic, NJ HMFA PA-NJ-DE-MD MSA ...... 54.0 Participants. There were no FY2006 has not demonstrated progress in Sacramento-Arden-Arcade-Roseville, FMR areas originally assigned proposed CA HMFA ...... 62.7 deconcentrating voucher participants, and this measurement is made with data 40th percentile FMRs that otherwise met the eligibility requirements for 50th The only area with a proposed of adequate quality (85.7 percent percentile FMRs, but were deemed FY2006 50th percentile FMR that met reporting rate), the Bergen-Passaic, NJ ineligible by having insufficient the first two eligibility criteria, had HMFA is ineligible for FY2006 50th Reporting Rates as derived from the May adequate data to measure Concentration percentile FMRs. The 40th percentile 31, 2005, Delinquency Report. of Participants, but failed to meet 25 Bergen-Passaic, NJ HMFA FMR is almost identical to the revised proposed TABLE 6.—PROPOSED FY2006 40TH 4 For most PHAs the reporting rate comes directly New York-Bergen-Passaic-Monmouth- from the Delinquency Report and is the ratio of Ocean NY-NJ HMFA of which the PERCENTILE FMR AREAS THAT form 50058 received to required units. In some originally proposed Bergen-Passaic, NJ SHOULD BE ASSIGNED 50TH PER- cases, the number of 50058 required units was inconsistent with other figures on the number of HMFA is a part. So, as a result of losing CENTILE FMRS HCV participants served by the PHA and was its 50th percentile status, the Bergen- replaced with either the December 2004 leased Passaic, NJ HMFA is combined into the Baltimore-Towson, MD MSA units (if available) or Annual Contribution revised proposed New York-Bergen- Hartford-West Hartford-East Hartford, CT Contracts (ACC) units. The two significant instances Passaic-Monmouth-Ocean, NY-NJ HMFA where this procedure was used and negatively Honolulu, HI MSA affected FMR area reporting rates in this table 5 Milwaukee-Waukesha-West Allis, WI MSA because the resulting PHA rates were below 85 The Sacramento-Arden-Arcade-Roseville, CA New Haven-Meriden, CT HMFA percent are as follows: Dallas, TX HA (15,975 ACC HUD FMR, in a measure based on inadequate data, units, PHA Report Rate 78.3%) and Philadelphia, also had a concentration ratio of less than 25 Providence-Fall River, RI-MA HMFA PA HA (15,641 leased units, PHA Report Rate percent but is deemed ineligible based on data Riverside-San Bernardino-Ontario, CA MSA 0.0%). quality. Sarasota-Bradenton-Venice, FL MSA
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 E:\FR\FM\25AUN3.SGM 25AUN3 50142 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
TABLE 6.—PROPOSED FY2006 40TH Revised proposed FY2006 FMRs for FMRs. Other information pertaining to PERCENTILE FMR AREAS THAT the areas affected by this notice are the proposed FY2006 FMRs is SHOULD BE ASSIGNED 50TH PER- listed in Schedule B of the June 2, 2005, unchanged from the June 2, 2005, CENTILE FMRS—Continued notice. Consistent with current notice. regulations, PHAs must obtain the Dated: August 12, 2005. Tacoma, WA HMFA approval of their governing board to Roy A. Bernardi, Tucson, AZ MSA implement use of 50th percentile FMRs Deputy Secretary. or payment standards based on those BILLING CODE 4210–32–P
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 E:\FR\FM\25AUN3.SGM 25AUN3 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50143
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN3.SGM 25AUN3 EN25AU05.060 50144 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN3.SGM 25AUN3 EN25AU05.061 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50145
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN3.SGM 25AUN3 EN25AU05.062 50146 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN3.SGM 25AUN3 EN25AU05.063 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices 50147
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4725 E:\FR\FM\25AUN3.SGM 25AUN3 EN25AU05.064 50148 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Notices
[FR Doc. 05–16865 Filed 8–24–05; 8:45 am] BILLING CODE 4210–32–C
VerDate jul<14>2003 18:01 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 E:\FR\FM\25AUN3.SGM 25AUN3 EN25AU05.065 i
Reader Aids Federal Register Vol. 70, No. 164 Thursday, August 25, 2005
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 948...... 48903 Executive orders and proclamations 741–6000 983...... 49885 Proclamations: 1755...... 45314 The United States Government Manual 741–6000 7916...... 46401 Other Services 7917...... 48473 9 CFR Electronic and on-line services (voice) 741–6020 Executive Orders: 77...... 47078 Privacy Act Compilation 741–6064 13222 (See Notice of 78...... 47078 Public Laws Update Service (numbers, dates, etc.) 741–6043 August 2, 2005) ...... 45273 Proposed Rules: TTY for the deaf-and-hard-of-hearing 741–6086 Administrative Orders: 3...... 45322 Memorandums: 94...... 48494, 49200 ELECTRONIC RESEARCH Memorandum of April 101...... 48325 21, 2005 ...... 48633 World Wide Web 116...... 48325 Memorandum of July 304...... 47147 Full text of the daily Federal Register, CFR and other publications 1, 2005 (Amends 308...... 47147 is located at: http://www.gpoaccess.gov/nara/index.html Memorandum of 310...... 47147 April 21, 2005) ...... 48633 Federal Register information and research tools, including Public 320...... 47147 Memorandum of July Inspection List, indexes, and links to GPO Access are located at: 327...... 47147 4, 2005 ...... 44041 http://www.archives.gov/federallregister/ 381...... 47147 Memorandums of July 391...... 48238 E-mail 30, 2005 ...... 46741 416...... 47147 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Memorandum of 417...... 47147 an open e-mail service that provides subscribers with a digital August 5, 2005...... 46397 590...... 48238 form of the Federal Register Table of Contents. The digital form Presidential 592...... 48238 of the Federal Register Table of Contents includes HTML and Determination: 10 CFR PDF links to the full text of each document. No. 2005-31 of August 2, 2005 ...... 46395 110...... 46066 To join or leave, go to http://listserv.access.gpo.gov and select Notices: 170...... 46265 Online mailing list archives, FEDREGTOC-L, Join or leave the list Notice of August 2, 171...... 46265 (or change settings); then follow the instructions. 2005 ...... 45273 1303...... 47079 PENS (Public Law Electronic Notification Service) is an e-mail Proposed Rules: 5 CFR service that notifies subscribers of recently enacted laws. 20...... 45571 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 213...... 44219 32...... 45571 and select Join or leave the list (or change settings); then follow 315...... 44219 51...... 47148, 48329 the instructions. 337...... 44847 150...... 45571 370...... 47711 FEDREGTOC-L and PENS are mailing lists only. We cannot 576...... 46065 11 CFR respond to specific inquiries. 841...... 48839 Proposed Rules: Reference questions. Send questions and comments about the 842...... 48839 100...... 49508 Federal Register system to: [email protected] 843...... 48839 12 CFR The Federal Register staff cannot interpret specific documents or Proposed Rules: regulations. 532...... 48899 11...... 46403 591...... 44976 25...... 44256 FEDERAL REGISTER PAGES AND DATE, AUGUST 1201...... 48081 201...... 48269 2634...... 47138 226...... 46066 44041–44218...... 1 228...... 44256 44219–44462...... 2 7 CFR 229...... 47085, 48842 44463–44846...... 3 1...... 47077 335...... 44270 44847–45272...... 4 247...... 47052 345...... 44256 45273–45522...... 5 301 ...... 44222, 45523, 46065 Proposed Rules: 45523–46064...... 8 400...... 44222 Ch. I ...... 46779 46065–46402...... 9 916...... 44243 4...... 45323 46403–46740...... 10 917...... 44243 205...... 49891 46741–47076...... 11 920...... 48839 19...... 45323 47077–47710...... 12 923...... 44249 Ch. II ...... 46779 47711–48056...... 15 946...... 44252 263...... 45323 48057–48268...... 16 996...... 44043 264a...... 45323 48269–48472...... 17 Proposed Rules: Ch. III ...... 46779 48473–48632...... 18 51...... 49882 308...... 45323 48632–48838...... 19 82...... 44525 330...... 45571 48839–49152...... 22 762...... 46779, 47730 336...... 45323 49153–49478...... 23 916...... 48900 363...... 44293 49479–49844...... 24 917...... 48900 Ch. V...... 46779 49845–50148...... 25 920...... 48082 507...... 45323
VerDate jul 14 2003 19:44 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\25AUCU.LOC 25AUCU ii Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Reader Aids
509...... 45323 Proposed Rules: 15...... 46336, 48871 39 CFR 410...... 48923 18...... 46336, 48871 3001...... 48276 13 CFR 19...... 46336, 48871 19 CFR 3002...... 48276 Ch. III...... 47002, 47049 20...... 46336, 48871 3003...... 48276 Proposed Rules: 22...... 46336, 48871 14 CFR 101...... 47151 23...... 46336, 48871 40 CFR 351...... 47738 23...... 44463, 45275 27...... 46336, 48871 51...... 44470 25 ...... 48842, 48844, 49153, 20 CFR 28...... 46336, 48871 52 ...... 44052, 44055, 44478, 49155 33...... 46336, 48871 44481, 44852, 44855, 45539, Proposed Rules: 36...... 45502 35...... 46336, 48871 45542, 46090, 46770, 46772, 404...... 46792, 48342 36...... 46336, 48871 39 ...... 44046, 44273, 44274, 416...... 46792 48073, 48078, 48277, 48280, 44276, 45526, 46067, 46069, 250...... 49871 48283, 48285, 48287, 48640, 46072, 46074, 46076, 46743, 21 CFR 256...... 49871 48642, 48645, 48647, 48650, 46747, 46752, 46754, 47086, Proposed Rules: 48652, 48874, 48877, 48880, 3...... 49848 5...... 46345, 48925 47716, 47720, 47722, 48848, 179...... 48057 49377, 49493, 49496, 49498, 15...... 46345, 48925 48850, 48852, 48854, 48857, 510...... 48272 49878 18...... 46345, 48925 49164, 49167, 49169, 49170, 520...... 44048 62...... 46773, 48654 19...... 46345, 48925 49173, 49174, 49178, 49182, 522...... 48272, 48868 63 ...... 44285, 46684, 50118 20...... 46345, 48925 49184 524...... 44719 81...... 44470, 48238 22...... 46345, 48925 61...... 45264 556...... 44048 82...... 49836 23...... 46345, 48925 71 ...... 44465, 45275, 45527, 558...... 44049 180 ...... 44483, 44488, 44492, 27...... 46345, 48925 46078, 46754, 48057, 48238, 866...... 49862 44857, 46410, 46419, 46428, 28...... 46345, 48925 48859, 48860, 49185, 49187, 1240...... 48073 46706, 49499 33...... 46345, 48925 49845, 49846, 49847 1301...... 47094 258...... 44150 73...... 44466, 45528 35...... 46345, 48925 260...... 45508 95...... 44278 22 CFR 36...... 46345, 48925 261 ...... 44150, 44496, 45508, 925...... 48925 97...... 47090, 48635 Proposed Rules: 49187 257...... 44848 62...... 47152, 49515 31 CFR 264...... 44150, 45508 1260...... 46079 265...... 45508 24 CFR 537...... 48240 Proposed Rules: 268...... 44505, 45508 25 ...... 46099, 46100, 46102, Proposed Rules: 32 CFR 270...... 45508 200...... 45492 273...... 45508 46104, 46106, 46108, 46110, 21...... 49460 206...... 45498 300...... 44063 46112, 46113, 46115, 46785 22...... 49460 290...... 45492 Proposed Rules: 39 ...... 44297, 45581, 45585, 25...... 49460 Ch. I ...... 46444 45587, 45590, 45592, 45595, 32...... 49460 25 CFR 26...... 46448 46437, 43439, 46788, 46790, 33...... 49460 542...... 47097 51...... 44154, 49708 48084, 48085, 48333, 48336, 34...... 49460 52 ...... 44075, 44537, 45607, 48339, 48500, 48502, 48657, 26 CFR 37...... 49460 46126, 46127, 46448, 46798, 48660, 48904, 48906, 48908, 505...... 49486 1 ...... 44467, 45529, 45530, 47757, 48093, 48238, 49525, 48911, 48914, 48918, 49207, 706 ...... 46758, 46759, 46761, 46758, 47108, 47109, 48868, 49526, 49708 49210, 49213, 49215, 49217 46762, 46763, 46765, 46766 49864 60...... 45608 71 ...... 44300, 44533, 44868, 806b...... 46405 44869, 45599, 49221, 49222 40...... 49869 62...... 46798, 48662 Proposed Rules: 93...... 45250, 49515 49...... 49869 63 ...... 45608, 46452, 46701, 54...... 47109 174...... 46116 49530, 40114 15 CFR Proposed Rules: 175...... 46116 72...... 49708 1 ...... 44535, 47155, 48924, 176...... 46116 73...... 49708 4...... 47725 581...... 44536 738...... 45276 49894, 49897 74...... 49708 740...... 45276 41...... 47160 33 CFR 78...... 49708 48...... 47160 96...... 49708 745...... 45276 100 ...... 44470, 45531, 46405, 772...... 45276 145...... 47160 97...... 49708 48475, 48477, 48479 136...... 48256 774...... 45276 27 CFR 117 ...... 44852, 45534, 45535, 141...... 49094 801...... 48270 4...... 49479 45536, 48273, 48637, 49877 155...... 48356 902...... 48860 24...... 49479 165 ...... 44470, 45531, 45537, 180...... 45625 Proposed Rules: 27...... 49479 46407, 48274, 48872, 49487, 197...... 49014 806...... 48920 Proposed Rules: 49490 271...... 46799 Proposed Rules: 16 CFR 4...... 49516 300...... 44076, 45334 9...... 47740 100...... 47160, 48505 420...... 46459 Proposed Rules: 24...... 49516 110...... 45607 803...... 47733 27...... 49516 117 ...... 46441, 48088, 48091, 42 CFR 48354, 48929, 49900 405...... 47278 17 CFR 28 CFR 409...... 45026 36 CFR 200...... 44722 16...... 49870 411...... 45026 228...... 44722, 46080 Proposed Rules: 242...... 46768 412...... 47278, 47880 229...... 44722, 46080 94...... 49518 1191...... 45283 413...... 47278 230...... 44722 Proposed Rules: 415...... 47278 239...... 44722 29 CFR 111...... 47754 418...... 45130 240 ...... 44722, 46080, 46089 1601...... 47127, 47128 242...... 46795 419...... 47278 242...... 45529 4022...... 47725 1011...... 44870 422...... 47278 243...... 44722 4044...... 47725 1260...... 47161 424...... 45026 249...... 44722 485...... 47278 Proposed Rules: 37 CFR 274...... 44722 1910...... 44074 489...... 45026 201...... 44049 Proposed Rules: 18 CFR 30 CFR Proposed Rules: 402...... 44879 35...... 47093 5...... 46336, 48871 202...... 44878 405...... 45764
VerDate jul 14 2003 19:44 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\25AUCU.LOC 25AUCU Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Reader Aids iii
410...... 45764 46 CFR Proposed Rules: 18...... 48321 411...... 45764 501...... 44866 204...... 46807 20...... 49194 413...... 45764 502...... 44866 235...... 46807 100...... 46768 246...... 44077 414...... 45764 Proposed Rules: 229...... 44289 252...... 44077, 46807 426...... 45764 389...... 47771 622...... 48323 483...... 47759 531...... 45626 49 CFR 635...... 48490 648 ...... 44066, 44291, 48860 47 CFR 385...... 49978 43 CFR 660 ...... 44069, 44070, 44072, 390...... 48008, 49978 2...... 46576 47727, 48897 39...... 44512 392...... 48008 25...... 46576 679 ...... 44523, 46097, 46098, 1820...... 45312 393...... 48008 51...... 48290 46436, 46776, 46777, 47728, 395...... 49978 73 ...... 44513, 44514, 44515, 49197, 49198, 49507 44 CFR 44516, 44517, 44518, 44519, 541...... 46092 Proposed Rules: 44520, 46576, 48291, 48292, 551...... 45565 64...... 48481 17 ...... 44078, 44301, 44544, 67...... 47128, 47129 48293, 48294 571 ...... 44520, 46431, 47131, 48295, 48313, 48883 44547, 46387, 46465, 46467, Proposed Rules: 76...... 48295 586...... 46431 48093, 48094 67...... 47166 90...... 46576 97...... 46576 Proposed Rules: 20 ...... 44200, 45336, 49068, 49541 Proposed Rules: 567...... 48507 45 CFR 1...... 44537 571 ...... 46807, 48362, 49223, 100...... 46795 1611...... 45545 73 ...... 44537, 44542, 44543, 49248 229...... 49902 2102...... 49193 48357, 48358, 48359, 48360, 572...... 49248 300...... 47774, 48804 2510...... 48882 48361, 48362 584...... 48507 600...... 47777, 48804 2520...... 48882 635...... 48804 2521...... 48882 48 CFR 50 CFR 648...... 45628 2540...... 48882 52...... 46776 17 ...... 46304, 46366, 46924, 660 ...... 47777, 47781, 47782 2550...... 48882 6101...... 48882 48482, 48896, 49380 679...... 45638
VerDate jul 14 2003 19:44 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4712 E:\FR\FM\25AUCU.LOC 25AUCU iv Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Reader Aids
REMINDERS organizations; marking further notice; published ENERGY DEPARTMENT The items in this list were requirements; Open for 5-9-05 [FR 05-09150] Acquisition regulations: editorially compiled as an aid comments until further AGRICULTURE Technical revisions or to Federal Register users. notice; published 8-26-05 DEPARTMENT amendments to update [FR 05-16698] Inclusion or exclusion from Practice and procedure: clauses; comments due this list has no legal AGRICULTURE Audits of States, local by 8-29-05; published 7- significance. DEPARTMENT governments and non- 29-05 [FR 05-14810] Agricultural Marketing profit organizations; Meetings: RULES GOING INTO Service comments due by 8-30- Environmental Management EFFECT AUGUST 25, California Clingstone Peach 05; published 6-16-05 [FR Site-Specific Advisory 05-11840] 2005 Diversion Program; Board— comments due by 9-2-05; COMMERCE DEPARTMENT Oak Ridge Reservation, published 8-3-05 [FR 05- National Oceanic and TN; Open for comments ENVIRONMENTAL 15231] PROTECTION AGENCY Atmospheric Administration until further notice; Cotton classing, testing and Air quality implementation Fishery conservation and published 11-19-04 [FR standards: plans; approval and management: 04-25693] promulgation; various Classification services to Magnuson-Stevens Act Research misconduct policy; States: growers; 2004 user fees; provisions— comments due by 8-29-05; Open for comments until published 6-28-05 [FR 05- Tennessee; published 8-25- Bering Sea and Aleutian further notice; published 12645] 05 Islands king and tanner 5-28-04 [FR 04-12138] HOMELAND SECURITY crabs; fishing capacity ENERGY DEPARTMENT DEPARTMENT Nectarines and peaches reduction program; Energy Efficiency and Federal Emergency grown in— industry fee system; Renewable Energy Office Management Agency California; comments due by comments due by 8-29- Commercial and industrial Assistance Program Under the 9-1-05; published 8-22-05 05; published 7-28-05 equipment; energy efficiency 9/11 Heroes Stamp Act of [FR 05-16572] [FR 05-14951] program: 2001; published 7-26-05 Pistachios grown in West Coast States and Test procedures and HOUSING AND URBAN California; comments due by Western Pacific efficiency standards— DEVELOPMENT 9-1-05; published 8-25-05 fisheries— Commercial packaged DEPARTMENT [FR 05-16981] Salmon and coho; boilers; Open for FHA programs; introduction: AGRICULTURE recreational fishery comments until further Multifamily accelerated DEPARTMENT adjustments; comments notice; published 10-21- due by 8-30-05; processing; lender quality Energy Office, Agriculture 04 [FR 04-17730] published 8-15-05 [FR assurance enforcement; Department ENERGY DEPARTMENT published 7-26-05 05-16118] Biobased products; Federal Energy Regulatory JUSTICE DEPARTMENT designation guidance for COURT SERVICES AND Commission OFFENDER SUPERVISION Privacy Act; implementation; federal procurement; Electric rate and corporate published 8-25-05 comments due by 8-30-05; AGENCY FOR THE DISTRICT OF COLUMBIA regulation filings: LABOR DEPARTMENT published 7-5-05 [FR 05- Virginia Electric & Power Employment Standards 12978] Semi-annual agenda; Open for comments until further Co. et al.; Open for Administration AGRICULTURE comments until further Longshore and Harbor notice; published 12-22-03 DEPARTMENT [FR 03-25121] notice; published 10-1-03 Workers’ Compensation Act; Food and Nutrition Service [FR 03-24818] implementation; published 7- DEFENSE DEPARTMENT Child nutrition programs: ENVIRONMENTAL 26-05 Army Department Child and Adult Care Food PROTECTION AGENCY TRANSPORTATION Personnel: Air quality implementation DEPARTMENT Program— Army Board for Correction plans; approval and Federal Aviation Management and program of Military Records; integrity improvement; promulgation; various Administration policies, procedures, and States; air quality planning Airworthiness directives: comments due by 9-1- administrative instructions; 05; published 9-1-04 purposes; designation of Airbus; published 7-21-05 comments due by 9-2-05; areas: [FR 04-19628] published 8-3-05 [FR 05- McDonnell Douglas; Indiana; comments due by published 7-21-05 AGRICULTURE 15299] DEPARTMENT 8-29-05; published 7-29- TREASURY DEPARTMENT DEFENSE DEPARTMENT 05 [FR 05-15058] Forest Service Internal Revenue Service Acquisition regulations: Air quality implementation Excise taxes: National Forest System timber; Pilot Mentor-Protege plans; approval and Duties of collector; sale and disposal: Program; Open for promulgation; various published 8-25-05 Market-related contract term comments until further States: Income taxes: additions; indices; notice; published 12-15-04 California; comments due by Guidance under section 951 comments due by 8-29- [FR 04-27351] 8-29-05; published 7-28- for determining pro rata 05; published 6-29-05 [FR EDUCATION DEPARTMENT 05 [FR 05-14931] 05-12811] share; published 8-25-05 Grants and cooperative Colorado; comments due by AGRICULTURE agreements; availability, etc.: 8-31-05; published 8-1-05 DEPARTMENT COMMENTS DUE NEXT Vocational and adult [FR 05-15053] WEEK Natural Resources education— Maryland; comments due by Conservation Service Smaller Learning 8-29-05; published 7-29- AGENCY FOR Reports and guidance Communities Program; 05 [FR 05-15051] INTERNATIONAL documents; availability, etc.: Open for comments Oregon; correction; DEVELOPMENT National Handbook of until further notice; comments due by 9-2-05; Assistance awards to U.S. Conservation Practices; published 2-25-05 [FR published 8-3-05 [FR 05- non-Governmental Open for comments until E5-00767] 15337]
VerDate jul 14 2003 19:44 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\25AUCU.LOC 25AUCU Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Reader Aids v
Utah; comments due by 8- Technological Advisory Maryland; Open for Embutramide; placement 31-05; published 8-1-05 Council; Open for comments until further into Schedule III; [FR 05-15149] comments until further notice; published 1-14-04 comments due by 8-29- Environmental statements; notice; published 3-18-05 [FR 04-00749] 05; published 7-29-05 [FR availability, etc.: [FR 05-05403] Drawbridge operations: 05-15035] Coastal nonpoint pollution Common carrier services: New Jersey; comments due NUCLEAR REGULATORY control program— Interconnection— by 8-29-05; published 7- COMMISSION Minnesota and Texas; Incumbent local exchange 29-05 [FR 05-15065] Environmental statements; Open for comments carriers unbounding Ports and waterways safety; availability, etc.: until further notice; obligations; local regulated navigation areas, Fort Wayne State published 10-16-03 [FR competition provisions; safety zones, security Developmental Center; 03-26087] wireline services zones, etc.: Open for comments until Pesticides; tolerances in food, offering advanced Hudson River, NY; further notice; published animal feeds, and raw telecommunications comments due by 8-29- 5-10-04 [FR 04-10516] agricultural commodities: capability; Open for 05; published 7-29-05 [FR Rulemaking petitions: Acetonitrile, etc.; comments comments until further 05-15079] Salsman, James; comments due by 8-31-05; published notice; published 12-29- Regattas and marine parades: due by 8-29-05; published 8-8-05 [FR 05-15606] 04 [FR 04-28531] Liberty Grand Prix; 6-15-05 [FR 05-11799] Cyprodinil; comments due Practice and procedure: comments due by 9-2-05; Spano, Andrew J.; by 8-29-05; published 6- Economic impact of published 8-18-05 [FR 05- comments due by 8-29- 30-05 [FR 05-12921] Commission’s rules on 16411] 05; published 6-15-05 [FR Ethyl maltol; comments due small entities; regulatory Montauk Channel and Block 05-11800] by 8-29-05; published 6- review; comments Island Sound; comments SMALL BUSINESS 30-05 [FR 05-12920] request; comments due due by 8-30-05; published ADMINISTRATION by 9-1-05; published 6-8- Terbacil, etc.; comments 7-1-05 [FR 05-13066] Disaster loan areas: due by 8-29-05; published 05 [FR 05-11170] HOUSING AND URBAN Maine; Open for comments 6-30-05 [FR 05-12919] Radio stations; table of DEVELOPMENT until further notice; assignments: Solid waste: DEPARTMENT published 2-17-04 [FR 04- Hazardous waste; California; comments due by Grants and cooperative 03374] identification and listing— 9-2-05; published 7-13-05 agreements; availability, etc.: OFFICE OF UNITED STATES [FR 05-13465] Exclusions; comments due Homeless assistance; TRADE REPRESENTATIVE by 9-2-05; published 7- Kansas; comments due by excess and surplus Trade Representative, Office 19-05 [FR 05-14189] 8-29-05; published 8-3-05 Federal properties; Open of United States Superfund program: [FR 05-14965] for comments until further Generalized System of National oil and hazardous notice; published 8-5-05 HEALTH AND HUMAN Preferences: substances contingency SERVICES DEPARTMENT [FR 05-15251] plan priorities list; 2003 Annual Product Centers for Medicare & INTERIOR DEPARTMENT Review, 2002 Annual comments due by 8-29- Medicaid Services Fish and Wildlife Service 05; published 7-29-05 [FR Country Practices Review, Medicare and Medicaid: Endangered and threatened 05-15043] and previously deferred Long term care facilities; species permit applications product decisions; Water pollution control: immunization standard; Recovery plans— petitions disposition; Open National Pollutant Discharge participation condition; Paiute cutthroat trout; for comments until further Elimination System— comments due by 8-30- Open for comments notice; published 7-6-04 Concentrated animal 05; published 8-15-05 [FR until further notice; [FR 04-15361] feeding operations in 05-16160] published 9-10-04 [FR TRANSPORTATION New Mexico and HEALTH AND HUMAN 04-20517] DEPARTMENT Oklahoma; general SERVICES DEPARTMENT permit for discharges; Endangered and threatened Federal Aviation Open for comments Food and Drug species: Administration until further notice; Administration Critical habitat Airworthiness directives: published 12-7-04 [FR Reports and guidance designations— Bell Helicopter Textron 04-26817] documents; availability, etc.: Arkansas River shiner; Canada; comments due Water pollution; effluent Evaluating safety of Arkansas River Basin by 8-29-05; published 6- guidelines for point source antimicrobial new animal population; comments 28-05 [FR 05-12690] categories: drugs with regard to their due by 8-31-05; Boeing; Open for comments Meat and poultry products microbiological effects on published 8-1-05 [FR until further notice; processing facilities; Open bacteria of human health 05-15164] published 8-16-04 [FR 04- for comments until further concern; Open for Findings on petitions, etc.— 18641] notice; published 9-8-04 comments until further Karst meshweaver; Pilatus Aircraft Ltd.; [FR 04-12017] notice; published 10-27-03 comments due by 8-30- comments due by 8-31- EQUAL EMPLOYMENT [FR 03-27113] 05; published 8-16-05 05; published 8-2-05 [FR OPPORTUNITY COMMISSION Medical devices— [FR 05-16150] 05-15181] Freedom of Information Act Dental noble metal alloys Migratory bird hunting: Robinson Helicopter Co.; (FOIA): and base metal alloys; Late-season migratory bird comments due by 8-29- Fee schedule; revision; Class II special hunting regulations; 05; published 6-28-05 [FR comments due by 8-30- controls; Open for comments due by 9-1-05; 05-12688] 05; published 7-1-05 [FR comments until further published 8-22-05 [FR 05- Turbomeca; comments due 05-12979] notice; published 8-23- 16393] by 8-29-05; published 6- 04 [FR 04-19179] FEDERAL JUSTICE DEPARTMENT 28-05 [FR 05-12692] COMMUNICATIONS HOMELAND SECURITY Drug Enforcement Airworthiness standards: COMMISSION DEPARTMENT Administration Special conditions— Committees; establishment, Coast Guard Schedules of controlled Maule Aerospace renewal, termination, etc.: Anchorage regulations: substances: Technology, Inc., Model
VerDate jul 14 2003 19:44 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4712 Sfmt 4711 E:\FR\FM\25AUCU.LOC 25AUCU vi Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Reader Aids
M-7-230, M-7-230C, published 6-30-05 [FR land to Eureka County, Trade Agreement and M-9-230 airplanes; 05-12864] Nevada, for continued use as Implementation Act (Aug. 2, comments due by 9-2- cemeteries. (Aug. 2, 2005; 2005; 119 Stat. 462) 05; published 8-3-05 119 Stat. 448) H.R. 2361/P.L. 109–54 [FR 05-15310] LIST OF PUBLIC LAWS H.R. 794/P.L. 109–47 Class C and Class E Colorado River Indian Department of the Interior, airspace; comments due by This is a continuing list of Reservation Boundary Environment, and Related 8-29-05; published 7-29-05 public bills from the current Correction Act (Aug. 2, 2005; Agencies Appropriations Act, [FR 05-14977] session of Congress which 119 Stat. 451) 2006 (Aug. 2, 2005; 119 Stat. have become Federal laws. It 499) Class D and E airspace; may be used in conjunction H.R. 1046/P.L. 109–48 comments due by 8-31-05; with ‘‘P L U S’’ (Public Laws To authorize the Secretary of H.R. 2985/P.L. 109–55 published 7-29-05 [FR 05- Update Service) on 202–741– the Interior to contract with 14984] the city of Cheyenne, Legislative Branch 6043. This list is also Appropriations Act, 2006 (Aug. Class E airspace; comments Wyoming, for the storage of available online at http:// 2, 2005; 119 Stat. 565) due by 8-29-05; published www.archives.gov/ the city’s water in the 7-29-05 [FR 05-14981] Kendrick Project, Wyoming. federal—register/public—laws/ S. 45/P.L. 109–56 (Aug. 2, 2005; 119 Stat. 455) Commercial space public—laws.html. To amend the Controlled transportation; safety H.J. Res. 59/P.L. 109–49 Substances Act to lift the approvals; comments due The text of laws is not Expressing the sense of published in the Federal patient limitation on by 8-30-05; published 6-1- Congress with respect to the prescribing drug addiction 05 [FR 05-10723] Register but may be ordered women suffragists who fought in ‘‘slip law’’ (individual treatments by medical TRANSPORTATION for and won the right of practitioners in group pamphlet) form from the women to vote in the United DEPARTMENT Superintendent of Documents, practices, and for other States. (Aug. 2, 2005; 119 purposes. (Aug. 2, 2005; 119 National Highway Traffic U.S. Government Printing Stat. 457) Safety Administration Office, Washington, DC 20402 Stat. 591) S. 571/P.L. 109–50 Motor vehicle safety (phone, 202–512–1808). The To designate the facility of the S. 1395/P.L. 109–57 standards: text will also be made United States Postal Service available on the Internet from Controlled Substances Export Child restraint systems— located at 1915 Fulton Street GPO Access at http:// Reform Act of 2005 (Aug. 2, Exposed webbing; in Brooklyn, New York, as the www.gpoaccess.gov/plaws/ 2005; 119 Stat. 592) minimum breaking ‘‘Congresswoman Shirley A. index.html. Some laws may strength; comments due Chisholm Post Office Last List August 2, 2005 not yet be available. by 8-29-05; published Building’’. (Aug. 2, 2005; 119 6-30-05 [FR 05-12875] H.R. 3423/P.L. 109–43 Stat. 459) TREASURY DEPARTMENT Medical Device User Fee S. 775/P.L. 109–51 Public Laws Electronic Alcohol and Tobacco Tax Stabilization Act of 2005 (Aug. To designate the facility of the Notification Service and Trade Bureau 1, 2005; 119 Stat. 439) United States Postal Service (PENS) Alcoholic beverages: H.R. 38/P.L. 109–44 located at 123 W. 7th Street in Holdenville, Oklahoma, as Labeling; wines, vintage Upper White Salmon Wild and the ‘‘Boone Pickens Post date statement minimum Scenic Rivers Act (Aug. 2, Office’’. (Aug. 2, 2005; 119 PENS is a free electronic mail content requirement 2005; 119 Stat. 443) Stat. 460) notification service of newly amendment; comments H.R. 481/P.L. 109–45 enacted public laws. To due by 8-30-05; published S. 904/P.L. 109–52 subscribe, go to http:// Sand Creek Massacre To designate the facility of the 7-1-05 [FR 05-13041] National Historic Site Trust Act listserv.gsa.gov/archives/ United States Postal Service publaws-l.html VETERANS AFFAIRS of 2005 (Aug. 2, 2005; 119 located at 1560 Union Valley DEPARTMENT Stat. 445) Road in West Milford, New Note: This service is strictly Board of Veterans Appeals: H.R. 541/P.L. 109–46 Jersey, as the ‘‘Brian P. for E-mail notification of new Appeals regulations and To direct the Secretary of Parrello Post Office Building’’. laws. The text of laws is not rules of practice— Agriculture to convey certain (Aug. 2, 2005; 119 Stat. 461) available through this service. Disagreement notice; land to Lander County, H.R. 3045/P.L. 109–53 PENS cannot respond to clarification; comments Nevada, and the Secretary of Dominican Republic-Central specific inquiries sent to this due by 8-29-05; the Interior to convey certain America-United States Free address.
VerDate jul 14 2003 19:44 Aug 24, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4712 Sfmt 4711 E:\FR\FM\25AUCU.LOC 25AUCU