The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture regulates the importation of animals and animal products into the United States to guard against the introduction of animal diseases not currently present or prevalent in this country. The regulations pertaining to the importation of animals and animal products are set forth in the Code of Federal Regulations (CFR), title 9, chapter I, subchapter D (9 CFR parts 91 through 99).

Until several years ago, the regulations in parts 91 through 99 (referred to below as the regulations) governed the importation of animals and animal products according to the recognized disease status of the exporting country. In general, if a disease occurred anywhere within a country's borders, the entire country was considered to be affected with the disease, and importations of animals and animal products from anywhere in the country were regulated accordingly. However, international trade agreements entered into by the United States—specifically, the North American Free Trade Agreement and the World Trade Organization Agreement on Sanitary and Phytosanitary Measures—require APHIS to recognize regions, rather than only countries, for the purpose of regulating the importation of animals and animal products into the United States.

Consequently, on October 28, 1997, we published in the Federal Register a final rule (62 FR 56000-56026, Docket No. 94-106-9, effective November 28, 1997) and a policy statement (62 FR 56027-56033, Docket No. 94-106-8) that established procedures for recognizing regions (referred to below as “regionalization”) for the purpose of regulating the importation of animals and animal products. With the establishment of those procedures, APHIS may consider requests to allow the importation of a particular type of animal or animal product from a foreign region, as well as requests to recognize all or part of a country or countries as a region. The regulations define the term region, in part, as “any defined geographic land area identifiable by geological, political, or surveyed boundaries.”

In accordance with these regionalization procedures, on May 13, 2002, we published in the Federal Register (67 FR 31987-31992, Docket No. 01-074-1) a proposal to amend the regulations in §§ 94.9 and 94.10 by adding the Mexican States of Baja California, Baja California Sur, Chihuahua, and Sinaloa to the lists of regions considered free of classical swine fever (CSF), thus allowing the importation into the United States of pork, pork products, live swine, and swine semen from these regions. We also proposed to remove references to those four States in § 94.15(b) because we believed that the provisions of that paragraph, which, among other things, govern the transiting through the United States of pork and pork products not otherwise eligible for entry into the United States under part 94, would no longer apply to those States once they were recognized as CSF-free.

We solicited comments concerning our proposal for 60 days ending July 12, 2002. We received six comments by that date. They were from U.S. and Mexican swine producers, a swine producers' association, importers, and a representative of the Mexican Government. Five of the commenters wrote in favor of the proposed rule.

The remaining commenter raised a number of issues, which we will discuss in the paragraphs that follow. Areas of concern discussed by the commenter included APHIS' risk assessment methodology; the conditions under which live swine and swine semen could be imported from the four Mexican States; the possibility that imports of those two commodities, in particular, could transmit not only CSF to U.S. herds but other diseases as well; the adequacy of surveillance programs in the four Mexican States; and the possibility that Chihuahua might export to the United States pork and pork products derived from swine imported into the State from CSF-affected regions.

The commenter cited several concerns regarding the methodology APHIS used in conducting its risk evaluations of Baja California, Baja California Sur, Chihuahua, and Sinaloa. Noting that an earlier rule allowing pork imports from the States of Yucatan and Sonora had been based on a qualitative “risk assessment,” the commenter questioned why “risk evaluations” of the four Mexican States preceded the current rulemaking process. The commenter requested explanations of the differences between the two and of how APHIS decides which type of analysis to do, and also questioned whether a “full risk assessment” had been completed for Baja California, Baja California Sur, Chihuahua, and Sinaloa. The commenter also pointed out that a proposal to recognize several European Union (EU) countries, as well as parts of Italy and Germany, as CSF-free (see 64 FR 34155-34168, Docket No. 98-090-1, published June 25, 1999) followed an APHIS risk analysis that included quantitative risk assessments for live swine, semen, and pork. Because live swine and swine semen imports may pose a greater risk of CSF transmission than pork imports, the commenter asserted, APHIS should conduct separate risk assessments for live swine and semen and then apply appropriate risk-mitigation strategies. Finally, the commenter also expressed some concern about the age of the data collected during the site visits APHIS conducted as part of the risk evaluations of the four Mexican States, pointing out that the most recent site visit took place in February 1997.

In conducting our risk evaluations of the four Mexican States, we used our standardized approach, which complies with § 92.2 of the regulations. It is unclear what the commenter means by a “full risk assessment.” The risk evaluation is equivalent, whether it is called a risk assessment or a risk evaluation. Historically, we have not conducted separate risk assessments for live swine and swine semen in similar rulemakings and have conducted quantitative as well as qualitative analyses primarily for rules designated as “significant” by the Office of Management and Budget. The EU proposal, unlike the one involving the four Mexican States, was a “significant” rule and was much larger in scope, involving various countries within the EU and regions within EU countries. For our proposed rule regarding Baja California, Baja California Sur, Chihuahua, and Sinaloa, we used our standard risk assessment methods and found the risk of CSF transmission to the United States via imports from the four Mexican States to be low. Because there have been no CSF outbreaks in any of the four States since our February 1997 site visit and APHIS had no information that risk levels had changed, APHIS did not view additional site visits as necessary.

The commenter requested additional information about the conditions under which live swine would be imported, since, heretofore, they have not been imported into the United States from Mexico, and about the types, locations, biosecurity policies, etc., of the semen centers that would have the potential to ship semen for use in U.S. swine herds.

Though this final rule allows imports of live swine and swine semen from the four Mexican States, we do not intend to issue import permits for live swine and swine semen from Mexico until we have resolved several issues related to the presence of blue eye disease in Mexico (those issues are discussed in greater detail later in this document). We are confident, however, that once the blue eye disease issue is settled, the regulations will provide for the safe importation into the United States of live swine and swine semen from Baja California, Baja California Sur, Chihuahua, and Sinaloa.

The importation of live swine is subject to the conditions set out in §§ 93.500 to 93.521. These conditions include, among other things, requirements for import permits, health certification, inspection and cleaning of conveyances used to transport swine, inspection of swine at the port of entry, and quarantine methods and facilities. Section 93.507, which pertains to port-of-entry inspection, provides that only those swine found to be free of communicable diseases and not to have been exposed to communicable diseases in the 60 days prior to their importation are eligible for entry. Section 93.510 requires that all imported swine be quarantined for a period of not less than 15 days, dating from the arrival of the swine at the port of entry. For the most part, the regulations in part 93 provide effective prevention against transmission of CSF to the U.S. swine population by means of imports of live swine. After reviewing our regulations in light of the issues raised by the commenter, however, we did determine that we needed to provide more protection against the possible commingling of live swine from the four CSF-free States with swine from other regions before the eligible swine are exported to the United States. This additional protection will take the form of a certification requirement, which we will discuss later in this document.

The importation of swine semen is subject to the conditions in §§ 98.30 to 98.36. These conditions include requirements for the inspection, unloading, cleaning, and disinfection of aircraft, other means of conveyance, and shipping containers used to move animal semen into the United States; import permits; and health certificates and other documents. Part 98 also offers protection against the commingling of animal semen from disease-free and disease-affected regions. Section 98.31(b) states that animal semen may not be imported into the United States from any region other than that in which it was collected. All shipping containers carrying animal semen for importation into the United States must be sealed with an official seal of the national veterinary service of the region of origin. Also, under part 98, import permits for semen may be denied because of, among other things, communicable disease conditions in the region of origin or in a region through which the shipment has been or will be transported. Taken together, these and other provisions in part 98 will make the prospect of CSF transmission to U.S. swine herds via the importation of swine semen from Baja California, Baja California Sur, Chihuahua, and Sinaloa very unlikely. Our review of part 98 in light of the issues raised by the commenter led us to conclude that we did not need to make any changes in the regulations pertaining to semen.

Another concern expressed by the commenter was that allowing the importation of live swine and swine semen from the four Mexican States could increase the risk of infection of U.S. swine herds with diseases such as pseudorabies, vesicular stomatitis, and blue eye disease.

The inspection, permitting, certification, and quarantine provisions in part 93 allow APHIS to screen imported live swine for pseudorabies and to take effective measures, which include refusal of entry, to prevent its spread. APHIS does not regard imports of live swine from Mexico as a source of risk for transmission of vesicular stomatitis and does not require testing of other species from Mexico for that disease. Blue eye disease does provide greater cause for concern. Although several laboratory tests have been developed for the detection of that disease, none has been validated or is commercially available in the United States. Moreover, APHIS does not have current and complete information on the geographic distribution of blue eye disease in Mexico. In the absence of specific clinical signs, a reliable laboratory test, and complete epidemiologic information, specific mitigation measures for blue eye disease of swine are difficult to design. Under § 93.504(a)(3), however, APHIS may deny permits for the importation of live swine and swine specimens if such imports would pose a disease risk. We intend to rely on this authority to support our decision to not issue any permits for the importation of live swine and swine semen from the four Mexican States until the issue of blue eye disease can be addressed more comprehensively. With that goal in mind, APHIS intends to collect information and conduct an assessment of the risk of introducing blue eye disease in live swine and swine semen imported from Mexico.

The commenter also questioned why the import conditions we proposed to apply to pork and pork products from the four Mexican States differed from those specified in an earlier final rule pertaining to imports of pork and pork products from the Mexican States of Sonora and Yucatan that was published in the Federal Register on January 11, 2000 (65 FR 1529-1537, Docket No. 97-079-2).

Risk evaluations carried out during the 1990s led APHIS to promulgate the January 2000 final rule referred to by the commenter after concluding that pork and pork products could safely be imported into the United States from Yucatan and Sonora under conditions designed to prevent the commingling of such products prior to exportation with pork and pork products from surrounding regions with lower CSF status. Unlike this final rule, however, the January 2000 final rule did not recognize Yucatan and Sonora as free of CSF. Generally, import requirements tend to be more stringent for disease-affected regions than for those we recognize as disease-free, so it is to be expected that the requirements imposed on imports from Yucatan and Sonora would be more rigorous than those imposed on imports from Baja California, Baja California Sur, Chihuahua, and Sinaloa. On September 30, 2002, however, we published in the Federal Register (67 FR 61293-61300, Docket No. 02-002-1) a proposal to add Yucatan and Sonora, along with the Mexican States of Campeche and Quintana Roo, to the lists in §§ 94.9 and 94.10 of CSF-free regions. Should that proposed rule be finalized, pork and pork products imported from those States will be subject to the same requirements as pork and pork products from Baja California, Baja California Sur, Chihuahua, and Sinaloa.

The commenter also expressed concerns regarding surveillance activities in the four Mexican States. The commenter raised questions regarding the prevention of backyard swine from entering the commercial slaughtering process, the existence of feral swine populations in the four States and the prevalence of CSF among those populations, the States' plans for coping with future CSF outbreaks, the ability of APHIS to trace infected swine back to particular farms or slaughterhouses, and the procedures APHIS would use to notify U.S. importers in the event of an outbreak of CSF in any of the four States.

We believe that if a region from which swine are being imported is free of CSF, then there is no reason to prevent backyard swine from that region from being slaughtered and imported. We only view feral swine as a cause for concern if such animals are transmitting disease to swine being raised for slaughter. As noted in the risk assessment documents, in accordance with Mexico's National Eradication Program, the four Mexican States all have active disease surveillance programs, strict border controls for animal movement, and emergency response systems or teams available in the event of CSF outbreaks. The certificate of origin required under § 93.505 would enable APHIS to trace infected animals back to specific slaughterhouses or farms. In the event of an outbreak in any of the four States, APHIS would notify U.S. importers by imposing an immediate ban and enforcing it by publishing an interim rule.

The commenter also raised some issues with regard to individual States. The commenter requested more details regarding the process by which backyard herds are randomly selected for CSF surveillance in Baja California. Regarding Baja California Sur, the commenter requested information on the number of backyard herds tested for CSF and the sources of the four CSF outbreaks that have occurred in the State since it was declared free of the disease by Mexico in 1991. With regard to Sinaloa, the commenter requested information regarding the source of the 1998 outbreak of CSF in neighboring Durango.

In Baja California, as in the other three Mexican States covered by this rule, the size of backyard animal samples is established through the determination of the presence or absence of CSF by the Cannon and Roe formula (1982), with a confidence interval of 99 percent and an expected prevalence in backyard premises of 0.15 percent. The number of municipalities in the State and the number of backyard farms in each municipality are determined by the Secretariat for Agriculture, Livestock, Rural Development, Fisheries, and Food Safety (SAGARPA). Premises are randomly selected for sampling by the assigned veterinarian according to the number of samples assigned to each municipality. Based on a swine census conducted in the State in 1998 and 1999, it was determined that samples would be taken from 172 and 241 backyard premises for those years, respectively, and would consist of 10 percent of the animals randomly selected from the total on each farm.

A description of the methodology used in sampling backyard herds in Baja California Sur is provided in the risk evaluation report for that State. APHIS did not collect data on the sources of the CSF outbreaks in Baja California Sur because the last of them occurred in 1995, and the State has remained CSF-free since then.

APHIS did not see a need to collect information on the source of the 1998 CSF outbreak in Durango because Durango was not among the Mexican States that were the subject of the proposed rule and we have not proposed to make any changes to the regulations regarding Durango's CSF status. Durango, which was declared free of CSF by the Mexican Government subsequent to the 1998 outbreak and is separated from Sinaloa by the Sierra Madre Occidental Mountains, is not seen as a likely source for the introduction of CSF into Sinaloa. In addition, animals or pork from Durango would be excluded by the certification requirements in this rule.

Noting the paucity of commercial swine in Chihuahua relative to backyard swine and the fact that Chihuahua is a net exporter of pork, the commenter suggested that most of the slaughter volume in the State must come from swine raised in other regions, possibly including regions affected with CSF. The commenter requested information on the origin of the swine that are slaughtered in Chihuahua and on restrictions on interstate movement of swine into the State.

APHIS has requested data from Chihuahua on the specific origin of any swine entering the State for slaughter and is awaiting a response. In any event, APHIS does not consider the importation of pork or pork products from Chihuahua under the certification requirements of this final rule to constitute a risk for spreading CSF. Also, as noted in the risk evaluation document for Chihuahua and in the proposed rule, some safeguards already exist to prevent Chihuahua from exporting contaminated pork or pork products to the United States. Movement of live swine from Mexican States with a lower CSF status into Chihuahua is prohibited, so even though it does appear that much of the pork Chihuahua exports comes from imported swine, the swine are likely to have come from CSF-free regions. Moreover, the swine are slaughtered at Tipo Inspección Federal (TIF) plants that comply with international sanitary requirements and have official veterinary sanitary officers and supervision and certification by the countries to which they export.

Still, APHIS shares the commenter's broader concerns about products imported into the United States from certain regions designated as free of CSF. Historically, the CSF-free designation has been justified not only by the absence of the disease in a particular country but also by the strong border controls existing at national boundaries. These border controls were thought to provide effective mitigation against the risks presented by the possibility of pork, pork products, live swine, or swine semen being imported into CSF-free countries for subsequent export to the United States. The advent of regionalization has allowed APHIS to designate regions within countries, as well as entire countries, as free of CSF. While regionalization has allowed APHIS to exercise more flexibility in its regulatory process and has helped to facilitate trade, it has caused APHIS to reconsider the issue of border controls in some cases. Border controls between higher- and lower-risk regions within a country or within a larger community, such as the EU, may not always be equivalent to border controls between nations. The possibility that pork or pork products intended for export to the United States from some CSF-free regions could be derived from swine that originated in CSF-affected regions or could be commingled with pork or pork products from affected regions prior to export to the United States appears to be greater than it did in the past. Such imports could present a risk of introducing CSF into this country. Commingling is also a concern with live swine intended for export to the United States from certain CSF-free regions.

Some sections of the regulations in part 94 do contain provisions aimed at reducing the potential risks posed by the importation of animal products from disease-free regions when circumstances exist that indicate there may be the possibility that those products may be commingled with animal products from disease-affected regions. For example, § 94.11 places certain restrictions on meat and other animal products imported from certain regions that are designated in § 94.1 as free of rinderpest and foot-and-mouth disease (FMD) but that (1) supplement their meat supplies by the importation of fresh meat of ruminants or swine from regions affected by rinderpest or FMD, (2) share a common land border with such regions, or (3) import ruminants or swine from such regions under conditions less restrictive than would be acceptable for importation into the United States. Section 94.13 has similar provisions for pork and pork products imported from certain regions that are designated in § 94.12(a) as being free of swine vesicular disease but that have risk factors like those of the FMD-free countries listed in § 94.11. The requirements currently in effect for the importation of pork and pork products from Yucatan and Sonora in § 94.20 include requirements for slaughtering, processing, and certification that are intended to address the risk of commingling.

Notwithstanding the requirements in § 94.20, the regulations in part 94 lack specific provisions for imports from CSF-free regions that are analogous to those of §§ 94.11 and 94.13. To mitigate the risks associated with importing live swine, pork, and pork products from the Mexican States of Baja California, Baja California Sur, Chihuahua, and Sinaloa—States that are subject to risk factors similar to those associated with the regions listed in §§ 94.11 and 94.13—we are adding a certification requirement to this final rule. This certification requirement will help to ensure that live swine and pork and pork products from these four Mexican States will not be commingled with swine and products from CSF-affected regions in the region of origin, the region of export, or in transit prior to exportation, and that pork and pork products derived from swine originating in affected regions will not be exported to the United States from the four Mexican States.

Specifically, we are adding a new § 94.24, which specifies the contents of a certification that will have to accompany live swine, pork, or pork products imported into the United States from the Mexican States of Baja California, Baja California Sur, Chihuahua, and Sinaloa. The new section has three components. The introductory text enumerates the risk factors that necessitate applying the certification requirement to the four States. Paragraph (a) specifies the certification requirements for live swine, and paragraph (b), for pork and pork products.

Paralleling §§ 94.11 and 94.13, the introductory text of new § 94.24 notes that although Baja California, Baja California Sur, Chihuahua, and Sinaloa are declared to be free of CSF in §§ 94.9 and 94.10, they supplement their pork supplies with fresh (chilled or frozen) pork imported from regions designated in §§ 94.9 and 94.10 as being affected by CSF, share a common land border with such affected regions, or import swine from such affected regions under conditions less restrictive than would be acceptable for importation into the United States. Thus, there exists a possibility that live swine, pork, or pork products from these CSF-free regions may be commingled with live swine, pork, or pork products from regions where CSF is considered to exist, resulting in a risk of introducing the disease into the United States. Therefore, live swine, pork, or pork products and shipstores, airplane meals, and baggage containing pork or pork products, other than those regulated under 9 CFR part 95 (which regulates, among other things, such swine products as hides and bristles) or part 96 (which regulates, among other things, swine casings) must meet the requirements of new § 94.24 in addition to other applicable requirements in the regulations. For imported live swine, other applicable requirements include those in §§ 93.500 to 93.521, which, as noted earlier, cover, among other things, import permits, health certification, inspection and cleaning of conveyances that transport swine, inspection of swine at the port of entry, and quarantine methods and facilities. Other applicable requirements that govern the importation of pork and pork products are specified in the regulations of the Food Safety Inspection Service (FSIS) of the U.S. Department of Agriculture. Of particular relevance in this case are the foreign country eligibility requirements for products imported into the United States in 9 CFR 327.2 and the foreign meat inspection certificate requirements in § 327.4.

Paragraph (a) of new § 94.24 states that the swine must be accompanied by a certification issued by a full-time salaried veterinary officer of the Government of Mexico. Upon arrival of the swine in the United States, the certification must be presented to an authorized inspector at the port of arrival. The certification must identify both the exporting region and the region of origin as a region designated in §§ 94.9 and 94.10 as free of CSF.

Paragraph (a)(1) specifies that the certification must state that the swine have not lived in a region designated in §§ 94.9 and 94.10 as affected with CSF. This provision, along with the certification in paragraph (a) that the region of origin and exporting regions are both CSF-free, will help to ensure that swine exported from Baja California, Baja California Sur, Chihuahua, and Sinaloa to the United States will in fact have come from one of those States and will not have been kept on premises in any region where CSF exists.

Paragraph (a)(2) specifies that the certification must state that the swine have never been commingled with swine that have been in a region that is designated in §§ 94.9 and 94.10 as affected with CSF. This provision will help to ensure that the swine will not be commingled while in Baja California, Baja California Sur, Chihuahua, or Sinaloa with swine imported into those States from other regions that may be affected with CSF.

Paragraph (a)(3) specifies that the certification must state that the swine have not transited through a region designated in §§ 94.9 and 94.10 as affected with CSF unless moved directly through the region to their destination in a sealed means of conveyance with the seal intact upon arrival at the point of destination. This provision will help to ensure that swine intended for export to the United States from the four Mexican States are not exposed to CSF while in transit prior to being exported.

Paragraph (a)(4) specifies that the certification must state that the conveyances or materials used in transporting the swine, if previously used for transporting swine, have been cleaned and disinfected in accordance with the requirements of § 93.502. This provision will help ensure that swine from Baja California, Baja California Sur, Chihuahua, or Sinaloa will not be exposed to CSF as a result of being transported in a contaminated conveyance.

Paragraph (b) states that pork or pork products intended for export to the United States must, like live swine, be accompanied by a certification issued by a full-time salaried veterinary officer of the Government of Mexico. Upon arrival of the pork or pork products in the United States, the certification must be presented to an authorized inspector at the port of arrival. The certification must identify both the exporting region and the region of origin of the pork or pork products as a region designated in §§ 94.9 and 94.10 as free of CSF at the time the pork or pork products were in the region. This provision will help to ensure that no pork or pork products exported from the four States to the United States will have originated in or been in a CSF-affected region.

Paragraph (b)(1) specifies that the certification must state that the pork or pork products were derived from swine that were born and raised in a region designated in §§ 94.9 and 94.10 as free of CSF and were slaughtered in such a region at a federally inspected slaughter plant that is under the direct supervision of a full-time salaried veterinarian of the Government of Mexico and that is eligible to have its products imported into the United States under the Federal Meat Inspection Act (21 U.S.C. 601 et seq.) and the FSIS regulations in 9 CFR 327.2. This provision will help ensure that the pork or pork products will only be derived from swine that are free of CSF and that slaughtering will take place in establishments and under conditions that meet FSIS standards.

Paragraph (b)(2) specifies that the certification must state that the pork or pork products have never been commingled with pork or pork products that have been in a region that is designated in §§ 94.9 and 94.10 as affected with CSF. This provision will help to ensure that the pork or pork products are not placed at risk of contamination in their region of origin via contact with pork or pork products that originated in a CSF-affected region.

Paragraph (b)(3) specifies that the certification must state that the pork or pork products have not transited through a region designated in §§ 94.9 and 94.10 as affected with CSF unless moved directly through the region to their destination in a sealed means of conveyance with the seal intact upon arrival at the point of destination. This provision will help to ensure that pork or pork products from the four Mexican States will remain safe from contamination by being kept in sealed containers while transiting through CSF-affected regions prior to importation into the United States.

Finally, paragraph (b)(4) specifies that the certification must state that if processed, the pork or pork product was processed in a region designated in §§ 94.9 and 94.10 as CSF-free in a federally inspected processing plant that is under the direct supervision of a full-time salaried veterinary official of the Government of Mexico. This provision will help to ensure that contamination will not occur during processing because the pork or pork products will be processed under appropriate supervision in establishments that are eligible to export pork and pork products to the United States.

As we noted earlier in this document, in our May 2002 proposed rule, we had proposed to remove references to Baja California, Baja California Sur, Chihuahua, and Sinaloa that were contained in § 94.15(b) of the regulations because we believed that the provisions of that paragraph, which, among other things, govern the transiting through the United States of pork and pork products not otherwise eligible for entry into the United States under part 94, would no longer apply to those States once we recognized them as CSF-free. Some of the pork and pork products produced in those States for export, however, may be produced in plants that are not FSIS-approved. Such pork and pork products, while ineligible for importation into the United States under the conditions of this final rule, are allowed to transit through the United States under current § 94.15(b). In order to allow such products to continue to transit the United States, we have decided not to finalize our proposed changes to § 94.15(b).

The May 2002 proposed rule also discussed our intention to substitute the term “classical swine fever,” which has become standard usage among veterinary practitioners, for “hog cholera” wherever the latter term appeared in 9 CFR parts 71, 93, 94, 98, and 130. Because these editorial changes were included in another final rule pertaining to the CSF status of various regions in the EU, published in the Federal Register on April 7, 2003 (68 FR 16922-16941, Docket No. 98-090-5), we will not be finalizing that aspect of the proposed rule in this final rule.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register. This rule adds the Mexican States of Baja California, Baja California Sur, Chihuahua, and Sinaloa to the lists of regions considered free of CSF and allows pork, pork products, live swine, and swine semen to be imported into the United States from those regions, subject to certain conditions. We have determined that approximately 2 weeks are needed to ensure that APHIS personnel at ports of entry receive official notice of this change in the regulations. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective 15 days after publication in the Federal Register.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

Based on the assumption that these four States will not drastically increase their levels of pork production over that of the last few years, the amount of pork, pork products, live swine, and swine semen that may potentially be imported into the United States from Baja California, Baja California Sur, Chihuahua, and Sinaloa is likely to be negligible. In 2000, the State of Sinaloa produced 1.1 percent of Mexico's live swine and 1.1 percent of its pork (FAS, USDA, GAIN Report, 2001), and Chihuahua produced 0.7 percent of Mexico's live swine and 0.5 percent of Mexico's pork (tables 1 and 2). The States of Baja California and Baja California Sur, which are not self-sufficient in pork production, produced smaller percentages. In 2001, these four States together produced less than 2 percent of Mexico's total number of live swine (table 1) and slaughtered swine (table 2). Between 1999 and 2001, Mexico exported around 5 percent of its annual production of pork (table 3), which amounted to 50,667 metric tons on average. Mexico has not exported any live swine since 1997 (table 4).

The Regulatory Flexibility Act requires that agencies specifically consider the economic effects of their rules on small entities. The domestic entities most likely to be affected by our declaring the Mexican States of Baja California, Baja California Sur, Chihuahua, and Sinaloa free of CSF are pork producers and importers.

According to the 1997 Agricultural Census, there were about 102,106 hog and pig farms in the United States in that year, of which 93 percent received $750,000 or less in annual revenues. Agricultural operations with $750,000 or less in annual receipts are considered small entities, according to the Small Business Administration's size criteria.

We do not anticipate that any U.S. entities (i.e., importers of swine and pork and pork products, and swine and pork producers), small or otherwise, will experience any negative economic effects as a result of this rule. This is because the amount of pork, pork products, live swine, and swine semen likely to be imported into the United States from Chihuahua and Sinaloa is negligible. We expect that the amount of these articles likely to be imported from Baja California and Baja California Sur will either be less than that from the other two States or none at all.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains an information collection requirement that was not included in the proposed rule. Specifically, this final rule requires 50 burden hours for a certification that will have to be completed by Federal animal health authorities in Mexico to ensure that, prior to importation into the United States, live swine, pork, and pork products from Baja California, Baja California Sur, Chihuahua, and Sinaloa are not commingled with live swine, pork, and pork products from CSF-affected regions. In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), we submitted this information collection requirement for approval to the Office of Management and Budget (OMB). OMB has approved the information collection for a period of 6 months under control number 0579-0230. We plan, in the near future, to request continuation of that approval for 3 years.

The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

The airplane manufacturer notified the FAA that results of fatigue testing conducted on the main landing gears (MLG) of Learjet Model 45 airplanes indicate that certain shear pins in the trunnion assemblies of the MLGs do not meet their expected life limit of 20,000 total landings. The shear pins in the trunnion assemblies are made of a material that allows hydrogen to penetrate the surface of the material, causing the material to become brittle. Under impact or dynamic loading such as landing, the brittle material could fracture or shatter causing the shear pin(s) to fail before reaching the expected life limit. This type of hydrogen penetration usually occurs during the manufacturing process.

The results of fatigue testing also indicate that the shear pin bushings in the trunnion fitting housings had migrated outward from the fitting, which further weakened the shear pins and contributed to their premature failure.

This condition, if not corrected, could result in the collapse of a MLG, and consequent reduced controllability of the airplane during takeoff or landing.

The FAA has reviewed and approved Bombardier Service Bulletin 45-57-6, dated June 9, 2003, which describes procedures for replacing certain shear pins in the trunnion assemblies of the MLGs with new, improved shear pins. This replacement also includes reidentifying the trunnion assemblies. The new, improved shear pins have a maximum life limit of 1,800 total landings.

In addition, we have reviewed Revision 32 of Chapter 4-11-00, dated June 13, 2003, of the Learjet 45 Maintenance Manual. Page 2 of Chapter 4-11-00 specifies a maximum life limit of 1,800 landings for the shear pins in the trunnion assemblies of the MLGs.

Accomplishment of the actions specified in the service bulletin and Learjet 45 Maintenance Manual is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD incorporates a reduced replacement interval for certain shear pins in the trunnion assemblies of the MLGs into the airworthiness limitations section of the Instructions for Continued Airworthiness, and requires replacement of those certain shear pins with new, improved shear pins. The actions are required to be accomplished in accordance with the service bulletin and Learjet 45 Maintenance Manual described previously, except as discussed below.

Operators should note that this AD is applicable to Learjet Model 45 airplanes, serial numbers (S/N) 45-005 through 45-208 inclusive, 45-210 through 45-222 inclusive, 45-224, 45-225, 45-227, and 45-229 through 45-231 inclusive. The effectivity of Bombardier Service Bulletin 45-57-6 lists Model 45 airplanes, S/N 45-005 through 45-222 inclusive, 45-224, 45-225, and 45-229 through 45-232 inclusive. Since that service bulletin was issued, the manufacturer has determined that the affected airplanes listed in that service bulletin are incorrect and has advised us that it will revise Service Bulletin 45-57-6 to apply to the correct airplanes subject to the unsafe condition described previously. We agree with the manufacturer's determination and have made this AD applicable to those correctly identified airplanes.

Operators should also note that, although the Accomplishment Instructions of the service bulletin describe procedures for reporting compliance with the service bulletin to the airplane manufacturer, this AD does not include such a requirement.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD. However, Note 1 of this AD has been included to address material that relates to altered products.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-141-AD.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

History: Airspace Docket 01-ANM-16 published on May 7, 2003 (68 FR 24341), established Class E Airspace at Richfield Municipal Airport, Richfield, UT effective date of May 7, 2003. An error was discovered in the published description for the East side Class E Airspace boundary of the Richfield Municipal Airport, Richfield, UT. This action corrects that error.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Seward, NE. It incorporates the current airport reference point for Seward Municipal Airport and the current location of the Seward NDB. It brings the legal description of this airspace area into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may advise. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2003-15710/Airspace Docket No. 03-ACE-61.” The postcard will be date/time stamped and returned to the commenter.

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

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

This amendment to 14 CFR part 71 modifies the Class E airspace at Waimea-Kohala, HI. An RNAV (GPS) RWY 22/04 SIAP and a VOR/DME RWY 22/04 SIAP have been developed to serve Waimea-Kohala Airport, HI. These SIAPs require additional controlled airspace to contain aircraft executing the new approach procedures. This action expands Class E airspace to support Instrument Flight Rules (IFR) operations to Waimea-Kohala Airport, Kamuela, HI. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of FAA Order 7400.9K dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

Although this action is the form of a final rule and was not preceded by a notice of proposed rulemaking, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, view, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action is needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this action will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 03-AWP-10.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, this regulation only involves an established body of technical regulations that require frequent and routine amendments to keep operationally current. Therefore, this regulation—(1) Is not a “significant regulatory action” under Executive Order 12866; (20 is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We amend our regulations on Over-The-Counter (OTC) medications (28 CFR part 549, subpart B). We published a proposed rule on this subject in the Federal Register on March 1, 1999 (64 FR 10094).

We received six comments. One generally supported the proposed rule, but five commenters objected.

Citing statutory authority requiring the Bureau to provide for the subsistence of persons charged to its custody, one commenter alleged that the proposed rule promoted the Bureau's economic interests over inmates' health needs and would further erode the quality of health care available to inmates.

This commenter argued that conditions in Bureau facilities leave inmates vulnerable to infection. The commenter further stated that Bureau health services staff do not act responsibly. For example, the commenter states that, at one institution, sick call appointments may be scheduled 3 to 5 work days after the initial request. The commenter suggests that this is intended to discourage inmates from coming to sick call and that requiring inmates to buy OTC medications would deter inmates from making sick call appointments. The commenter further charges that the Bureau would use profits from the sale of OTC medications to fund tort claim or law suit settlements.

Two additional commenters alleged that costs associated with the upkeep of inmates are the government's responsibility and should remain so. These commenters also objected to the pricing of OTC medications currently available in the institution's commissary. One commenter suggested that if the cost of OTC medications was passed on to the inmate, the inmate should be given a wider choice of medications. The other commenter alleged that staff were likely to abuse the administration of the proposed regulations and that staff improperly followed outdated procedures for addressing inmate complaints. The commenter also criticized the general quality of staff and the level of professional training available to staff.

Another commenter stated that having OTC medications available through the commissary does not justify discontinuing sick call distribution. This commenter states that access to the commissary at some institutions is limited to one scheduled visit per week, that the commissary closes quarterly for inventory, and that the medications are not affordable or are overpriced. This commenter suggested that the proposed procedures may encourage inmates to break other Bureau rules, namely the prohibition on sharing personal property with other inmates.

One commenter believes it is dangerous to permit mental health patients to purchase OTC medications which may adversely interact with prescribed medications. Another also objected to potential negative interactions between prescribed and OTC medications.

Another commenter raised administrative procedural objections to the proposed rule and various Bureau policies for providing inmate health care. This commenter stated that the proposed rule did not cite a need for the change nor expected results from application of the new regulation. The commenter argued that OTC medications can be used for illnesses, and consequently the Bureau is contradicting itself when it states that OTC medications are being used for cosmetic and general hygiene issues.

The commenter also disagreed with the Bureau's assertion that inmate health care conformed to community standards. The commenter criticized the actual provisioning of health care to inmates, citing as an example alleged misdiagnosis of a “rash of illness over night among the prisoners” at a Bureau institution.

Administrative Procedure. Procedures for providing for the health needs of inmates in federal facilities are in the Bureau's Health Services Manual. Because these procedures conform to the community standard of medical care (requiring us to meet inmates' medically mandatory and medically necessary needs), the procedures do not require separate rulemaking.

In instances where correctional management needs require adjustments to the procedures, we do go through rulemaking. For example, special provisions dealing with correctional management needs and chronic infectious disease are in 28 CFR part 549, subpart A.

The provisions for OTC medications are another example where we go through rulemaking because of our correctional management needs. We believe these regulations are necessary to allocate medical resources efficiently and cost-effectively.

The regulation should promote efficiency because Bureau health services staff will not need to see an inmate merely to dispense OTC medications. Health services staff can then devote more time to necessary medical care needs of inmates which they can only address through prescribed medications.

Also, limiting free distribution of OTC medications reduces government expenses. While requiring the inmate to purchase OTC medications may increase costs to the inmate, doing so will prepare inmates for post-incarceration life where individuals have the opportunity and responsibility to address their health care needs through sensible and prudent use of OTC medications.

Providing Health Care. By statute, we must provide for the safekeeping, care, and subsistence of the inmates in our custody. Title 18 of the United States Code, section 4042(a)(2) states that, with regard to inmates, we must “provide for their proper government, discipline, treatment, care, rehabilitation, and reformation.”

We disagree with the comments that this rule will compromise our obligation to provide “treatment” and “care” to inmates or that inmates” health is being used as the target of a money-making enterprise. This rule will, in fact, improve the quality of health care available to inmates: While continuing to meet inmates' medical needs by providing OTC medications in the commissary, we will free valuable medical staff time to more effectively meet inmates' medical needs.

In fact, only OTC medications that are approved by the Pharmacy and Therapeutics Committee (the Bureau's national formulary board) are available for sale in institution commissaries. Under this regulation, our commissaries will continue to sell OTCs such as aspirin, acetaminophen, ibuprofen, chlorpheniramine, antacids, hemorrhoidal ointment, hydrocortisone cream, and a fiber supplement (e.g. Metamucil®), and all other such medications that are available at the institution commissary.

It is consistent with community standards to expect inmates to responsibly, sensibly and prudently use OTC medications. While inmates can get various OTC medications through the institution commissary, some may choose to get these same medications for free through sick call.

The impact for the Bureau's medical resources is not limited merely to the cost of the free OTC medications dispensed at sick call, but also includes health services staff time, which could be more efficiently used during greater medical urgency. An inmate who needs to be evaluated by health care staff ought not to be deterred by the revised procedures. Instead of detracting from our quality of health care, this rule will allow us to use our health care resources where and when the inmates need them the most, thereby improving the quality of health care for inmates.

To clarify that we will still dispense OTC medications to those who do not have ready access to commissary purchases, we state in the rule that it applies to all inmates except those in inpatient status at Federal Medical Centers. Those in inpatient status who, necessarily, do not have commissary access, will receive OTC medications as needed. All other inmates, who have commissary access and are physically able to purchase OTC medications at the commissary will be required to do so by this rule.

Examples cited by some of the commenters of alleged excessive delay in scheduling sick call appointments may well be explained by the need for health services staff to spend time with inmates who attend sick call primarily to receive free OTC medications.

Commissary Sales. National policy established by the FDA and the Department of Health and Human Services specifies what medical items, including OTC medications, our commissaries may sell, and a national Pharmacy and Therapeutics Committee (a Bureau formulary committee composed of a group of accredited pharmacists) annually reviews and modifies the list of permissible OTC medications. The committee reviews medications to ensure that, before we sell or give them to inmates as “OTC medications”, they are dispensed “over the counter” in the public community. In this way, we ensure that we conform to the community standard of medical care. The committee must give us permission before we may sell “OTC medications” to inmates in our commissaries.

We operate the commissary under generally accepted accounting principles. We use profits from commissary sales to provide benefits to inmates in general. We do not use profits to fund tort claim or law suit settlements.

Because of limitations imposed by the correctional setting, the institution commissary cannot offer the variety of items possibly available at local retailers. The commissary does not compete with local retailers, and we are not obligated to provide the lowest price on any particular item.

In any case, as noted above, profits from commissary sales are used for the general benefit of inmates. Even so, we conducted surveys comparing the prices of identical or similar items sold in retail convenience stores and supermarkets in the community surrounding the correctional institutions to assist in pricing policies.

One survey of 50 commissary items was conducted at the following locations: LSCI Allenwood, FPC Alderson, USP Leavenworth, FCI Dublin, FMC Fort Worth, and FCI Miami. We compared the prices of commissary items to identical or similar items in a local retail convenience store and a local supermarket at each location. In 70 percent of the comparisons, we found that the items surveyed were less expensive in the commissaries than in the local convenience stores and supermarkets.

While we limit access to the institution commissary, the proposed regulations allow for exceptions where health services staff determine that the inmate has an immediate medical need which must be addressed before the inmate's regularly scheduled commissary visit (see § 549.30(a)). The proposed regulations also allow for exceptions where the inmate does not have access to the commissary because the inmate is in administrative detention or special housing.

Inmates Without Funds. The proposed regulations also allow for exceptions to be made for inmates without funds. In the final rule, we define an inmate without funds as one who has had an average daily trust fund account balance of less than $6.00 for the past 30 days. This definition is similar to that used in the Bureau's inmate telephone regulations (see § 540.105(b)) and in implementing instructions for payment of postage procedures (§ 540.21(d) and (e)). We believe this definition has proved to be both warranted and reasonable.

Interactions. Federal law and Bureau policy addresses issues on drug interactions between prescribed and OTC medications. These laws and our policy require verbal and/or written counseling information for all prescription drugs. When we prescribe such drugs, we give inmates information about potential drug-drug and drug-food interactions, including those with OTC medications.

Also, the regulations specify that Bureau medical centers (that is, the U.S. Medical Center for Federal Prisoners, other Federal Medical Centers, and psychiatric referral centers) will continue dispensing OTC medications through sick call, where inmates taking complex medication regimens, or inmates with cognitive impairments, would be at higher risk of inadvertent drug interactions with OTC medications.

Commissary procedures on the amount of items sold through the commissary serve to minimize the potential for misuse of purchased OTC medications.

Miscellaneous Issues. We believe that our discipline policy (see 28 CFR part 541, subpart B) will discourage inmates from violating Bureau regulations.

Concerns expressed over possible abuse of the administration of the proposed regulations, training available to staff, or over the general quality of staff are not relevant to the procedures of this specific proposed rule. Our administrative remedy program (see 28 CFR part 542) permits inmates to seek formal review of issues which relate to their confinement and is the appropriate channel to seek redress.

One commenter alleged that the administrative remedy program itself is outdated and improperly followed by staff. We disagree. Nevertheless, we will be revising the regulations for the administrative remedy program as part of the “plain language” initiative.

Members of the public may submit further comments concerning this rule by writing to the previously cited address. We will consider but not respond to these comments in the Federal Register.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review”, section 1(b), Principles of Regulation. The Director of the Bureau of Prisons has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications for which we would prepare a Federalism Assessment.

The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By approving it, the Director certifies that it will not have a significant economic impact upon a substantial number of small entities because: This rule is about the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

This rule will not cause State, local and tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. We do not need to take action under the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

We want to make Bureau documents easier to read and understand. If you can suggest how to improve the clarity of these regulations, call or write to Sarah Qureshi at the address or telephone number listed above.

We did not publish a notice of proposed rulemaking (NRPM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM is impracticable and contrary to the public interest, because it would delay immediate and required repairs to the bridge.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The contractor, PCL, needs to immediately perform necessary repairs to the bridge. In order to do the repairs and ensure worker and public safety, this temporary final rule is required. This temporary rule requires scheduled bridge openings, which provide for the reasonable needs of navigation, and will allow the contractor the time needed to safely repair the bridge.

The Fort Pierce North Bridge, mile 964.8 at Fort Pierce, St. Lucie County, Florida, has a vertical clearance of 26 feet at mean high water and a horizontal clearance of 45 feet between the down span and the fender system. The existing operating regulations in 33 CFR 117.5 require the bridge to open on signal.

PCL Contractors notified the Coast Guard that work was needed on the bascule leaves of the Bridge beginning May 5, 2003, and continuing until January 9, 2004. The repair involves welding deck plates, painting, and rebalancing each leaf. In order to provide for worker and public safety, they requested a 20-minute single-leaf opening schedule. Additionally, since both leaves of the Bridge will be unable to open simultaneously, two-hours advance notice will be required to effect a double-leaf opening whenever necessary. However, from 6 a.m. on August 1, 2003, to 6 p.m. on August 10, 2003, the contractor will be performing counterweight girder modifications to the Bridge, and the Bridge will not be able to effect a double-leaf opening at any time during this period, but will open only a single-leaf. This temporary final rule will facilitate immediate and necessary repairs to the Bridge and address worker and public safety issues without significantly hindering navigation.

From 6:01 p.m. August 1, 2003, to 8 p.m. January 9, 2004, this temporary rule requires the Bridge to open a single-leaf on a 20-minute schedule and provide double-leaf openings with two hours notice to the Bridge tender. This action is necessary to facilitate bridge repairs safely without significantly hindering navigation. During this time of year, the majority of vessels that require a double-leaf opening are traversing the open ocean, and not using the Intracoastal Waterway, due to favorable, seasonal weather.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary, because the rule will affect only a limited amount of marine traffic.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities, because the regulations will affect only marine traffic that require double-leaf bridge openings. The impact will be limited to providing a two-hour advance notice to the bridge tender for a double-leaf opening. For a short period, vessels that require double-leaf openings will not be able to pass through at all; however, these types of vessels would most likely be traversing the open ocean and not using the Intracoastal Waterway, due to favorable, seasonal weather.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this temporary final rule so that they can better evaluate its effects on them and participate in the rulemaking. If this temporary rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in FOR FURTHER INFORMATION CONTACT.

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

The CSX Railway Company requested a temporary deviation on July 17, 2003 for the operation of the drawbridge to allow the bridge owner time for preventative maintenance. Presently, the draw opens on signal for passage of river traffic. This deviation allows the bridge to remain closed to navigation for six separate increments from 7 a.m. until 7 p.m., September 15, 2003; from 5 a.m. until 9 p.m., September 17, 2003; from 7 a.m., until 7 p.m., September 19, 2003; from 7 a.m. until 7 p.m., September 22, 2003, from 5 a.m., until 9 p.m., September 24, 2003; and from 7 a.m. until 7 p.m., September 26, 2003. Vessels not exceeding the vertical clearance of the drawbridge may pass under the drawbridge during repairs. There are no alternate routes for vessels transiting through mile 287.6 on the Illinois Waterway. The drawbridge will be incapable of opening for emergencies during the six increment repair periods.

The Chicago, Rock Island and Pacific Railway Drawbridge provides a vertical clearance of 9.5 feet above normal pool in the closed to navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. In order to replace the counterweight cables the bridge must be kept inoperative and in the closed to navigation position. This deviation has been coordinated with waterway users. No objections were received.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

On April 18, 2003, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; Tampa Bay, Florida” in the Federal Register (68 FR 19166). We did not receive any letters commenting on the proposed rule. No public hearing was requested, and none was held.

The terrorist attacks of September 11, 2001, killed thousands of people and heightened the need for development of various security measures throughout the seaports of the United States, particularly those vessels and facilities which are frequented by foreign nationals and are of interest to national security. Following these attacks by well-trained and clandestine terrorists, national security and intelligence officials have warned that future terrorists attacks are likely. The Captain of the Port of Tampa has determined that these security zones are necessary to protect the public, ports, and waterways of the United States from potential subversive acts.

These security zones are similar to the existing temporary security zones established for waters around power facilities in Tampa Bay that will soon expire. The following temporary final rule, temporary final rule correction, and notice of proposed rulemaking were published in the Federal Register:

Security Zones; Tampa Bay, Port of Tampa, Port of Saint Petersburg, Port Manatee, Rattlesnake, Old Port Tampa, Big Bend, Weedon Island, and Crystal River, FL. (68 FR 15328, March 25, 2003). This temporary final rule established 15 security zones including security zones at Weedon Island and Big Bend Power Facilities. These zones were extended through June 30, 2003.

Security Zones; Tampa Bay, Port of Tampa, Port of Saint Petersburg, Port Manatee, Rattlesnake, Old Port Tampa, Big Bend, Weedon Island, and Crystal River, FL; Correction. (68 FR 17291, April 9, 2003) This correction to the temporary final rule published in March 2003 in (68 FR 14328) changed the size of the security zone around the Big Bend Power facility and corrected erroneous descriptions of coordinates at both the Big Bend and Weedon Island Power facilities.

A notice proposing permanent security zones around Weedon Island and Big Bend Power facilities and soliciting comments on this proposal was published in the Federal Register (68 FR 19166, April 18, 2003). The comment period on the proposed rule concluded on June 17, 2003.

No comments were received therefore no substantive changes have been made to the rule. We did, however, update the phone number for contacting the COTP.

The Coast Guard is establishing two permanent security zones in waters immediately adjacent to power facilities at Big Bend, and Weedon Island in Tampa Bay, Florida, to ensure public safety and security in the greater Tampa Bay area. Entry into or remaining within these zones will be prohibited unless authorized by the Coast Guard Captain of the Port, Tampa, Florida or that officer's designated representative. Persons desiring to transit the security zone must contact the Captain of the Port at telephone number 813-228-2189/91 or on VHF channel 16 to seek permission to transit the area. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port or the COTP designated representative.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security. No significant changes have been made to the rule.

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. There is ample room for vessels to navigate around the security zones and the Captain of the Port may allow vessels to enter the zones, on a case-by-case basis with the express permission of the Captain of the Port of Tampa or their designated representative.

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

The majority of the zones are limited in size and leave ample room for vessels to navigate around the zones. The zones will not significantly impact commuter and passenger vessel traffic patterns, and vessels may be allowed to enter the zones, on a case-by-case basis, with the express permission of the Captain of the Port of Tampa or their designated representative. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2. of the Instruction. Therefore, of this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction from further environmental documentation. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM and delaying the effective date of this rule would be contrary to the public interest since immediate action is needed to continue to protect the public, ports and waterways of the United States. The Coast Guard will issue a broadcast notice to mariners and place Coast Guard vessels in the vicinity of these zones to advise mariners of the restriction. We did issue an NPRM on April 18, 2003, concerning security zones in the vicinity of Big Bend and Weedon Island (68 FR 19166) and anticipate the final rule will become effective on September 1, 2003.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction. The Coast Guard published a NPRM proposing a permanent rule for security zones in these same locations and requesting public comment. The comment period for the proposed permanent rule ended on June 17, 2003.

The terrorist attacks of September 11, 2001, killed thousands of people and heightened the need for development of various security measures throughout the seaports of the United States, particularly those vessels and facilities which are frequented by foreign nationals and are of interest to national security. Following these attacks by well-trained and clandestine terrorists, national security and intelligence officials have warned that future terrorists attacks are likely. The Captain of the Port of Tampa has determined that these security zones are necessary to protect the public, ports, and waterways of the United States from potential subversive acts.

These security zones are similar to the existing temporary security zones established for power facilities that will soon expire. A temporary final rule was published on March 23, 2003 (68 FR 14328), creating a temporary security zone around the Weedon Island and Big Bend Power Facilities. These zones expired at approximately 11:59 p.m. on June 30, 2003.

This temporary rule establishes security zones in areas covered by a past temporary rule to ensure consistent security of facilities, and infrastructure throughout the Tampa Captain of the Port Zone. One security zone will encompass a portion of water adjacent to the Big Bend Power Plant in Tampa Bay, Florida. The zone encompasses all waters of Tampa Bay, from surface to bottom, shoreward of a line connecting the following points: 27°47.85′ N, 082°25.02′ W then east and south along the shore and pile to 27°47.63′ N, 082°24.70′ W then north along the shore to 27°48.02′ N, 082°24.70′ W then north and west along a straight line to 27°48.12′ N, 082°24.88'W then south along the shore and pile to 27°47.85′ N, 082°25.02′ W, closing off entrance to the Big Bend Power Facility.

We are establishing another zone adjacent to the Weedon Island Power Plant in Tampa Bay, Florida. The zone encompasses all waters of Tampa Bay, from surface to bottom, extending 50 yards from the shore, seawall and piers around the Power Facility at Weedon Island shoreward of a line connecting the following points: 27°51.52′ N, 082°35.82′ W then north and east along the shore to 27°51.54′ N, 082°35.78′ W then north to 27°51.68′ N, 082°35.78′ W then north to 27°51.75′ N, 082°35.78′ W closing off entrance to the canal then north to 27°51.89′ N, 082°35.82′ W then west along the shore to 27°51.89′ N, 082°36.10′ W then west to 27°51.89′ N, 082°36.14′ W closing off entrance to the canal. No person or vessel may enter the zone without the permission of the Captain of the Port.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary because there is ample room for vessels to navigate around the security zones and the Captain of the Port may allow vessels to enter the zones, on a case-by-case basis with the express permission of the Captain of the Port of Tampa or their designated representative.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The majority of the zones is limited in size and leave ample room for vessels to navigate around the zones. The zones will not significantly impact commuter and passenger vessel traffic patterns, and vessels may be allowed to enter the zones, on a case-by-case basis, with the express permission of the Captain of the Port of Tampa or their designated representative.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking. If the rule would effect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2. of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

This is a summary of the Commission's Order on Reconsideration in IB Docket No. 01-185, FCC No. 03-162, adopted July 3, 2003 and released on July 3, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The document is also available for download over the Internet at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-0-162A1.pdf. The complete text may also be purchased from the Commission's copy contractor, Qualex International, in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via telephone at (202) 863-2893, via facsimile at (202) 863-2898, or via e-mail at qualexint@aol.com.

On January 29, 2003, the Commission adopted a Report and Order, 68 FR 33640 (June 5, 2003), to permit flexibility in the delivery of communications by MSS providers that operate in three sets of radio frequency bands: the 2GHz MSS band, the L-band and the Big LEO bands. In the Report and Order, the Commission permitted MSS licensees to integrate ATCs into their MSS networks for the purpose of enhancing their ability to offer high-quality, affordable mobile services on land, in the air and over the oceans without using any additional spectrum resources beyond spectrum already allocated and authorized by the Commission for MSS in these bands.

Following release of the Report and Order, several wireless carriers made ex parte presentations stating that certain portions of the item required clarification. To resolve the concerns of the wireless carriers, the Commission on its own motion reconsidered the Report and Order in this proceeding.

In the Reconsideration Order, the Commission amended § 25.149 to clarify that the rule does not preclude an MSS operator from filing an ATC application prior to actually meeting all of the gating requirements. However, the Commission will not grant an ATC authorization prior to an MSS operator's demonstrating that it has, in fact, met the gating criteria. This rule change will serve the public interest by granting ATC applications only after the Commission is satisfied that each of the gating criteria has in fact been met, or will be met at the same time the application is granted.

The Commission adopted a new rule section that requires an MSS operator that is granted ATC authority to notify the Commission within 30 days once it begins providing ATC service. This notification must take the form of a letter formally filed with the Commission in the appropriate MSS license docket and shall contain a certification that the MCC ATC service is consistent with its ATC authority.

In the event that an MSS operator anticipates that its proposal will present complex or controversial issues that may warrant a longer deliberative process, the MSS operator may seek an initial finding from the Commission that its proposed service offerings are “integrated” as required by the Commission's Report and Order.

The Commission revised § 25.143 to eliminate the language that required MSS operators have a conditioned ATC authorization before engaging in preoperational construction and testing. Rather, the Commission will permit such construction and testing, at the operator's risk, at any time after an MSS provider has initiated physical construction on the MSS system satellites and notified us concerning the initiation of MSS system satellite construction and the MSS operator's intent to construct and test ATC facilities. The MSS operator must notify the Commission in the form of a letter formally filed with the Commission in the appropriate MSS license docket. The letter shall specify the frequencies on which the MSS licensee proposes to engage in pre-operational testing and shall specify the name, address, telephone number and other such information as may be necessary to contact a MSS licensee representative for the reporting and mitigation of any interference that may occur as a result of such pre-operational testing and build-out. Upon the filing of such a notification letter, the Commission will issue an informational public notice stating that such a notification letter has been filed. The Commission requires pre-operational construction and testing operations be in compliance with all appropriate technical rules including § 25.255 relating to procedures for resolving possible harmful interference. Also, MSS licensees engaging in pre-operational build-out and testing are required to comply with §§ 5.83, 5.85(c), 5.111 and 5.117.

Finally, the Commission modified § 25.117(f) to require that any initial application for the modification of a space station license to add an ancillary terrestrial component be placed on notice for public comment.

The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” (The RFA, 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).) The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. See 5 U.S.C. 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the U.S. Small Business Administration (SBA). See 15 U.S.C. 632. The SBA has developed a small business size standard for Satellite Telecommunications, which consists of all such companies having $12.5 million or less in annual revenue. See 13 CFR 121.201, NAICS code 517410.

Pursuant to the RFA, the Commission incorporated a Final Regulatory Flexibility Certification into the Report and Order. For the reasons described below, we now incorporate this supplemental final certification into the Order on Reconsideration and certify that the policies and rules adopted in the Order on Reconsideration will not have a significant economic impact on a substantial number of small entities.

The Order on Reconsideration will allow MSS operators to file applications prior to meeting the gating requirements. MSS operators that have been granted authorization will be required to notify the Commission within thirty days once the MSS operator begins providing ATC service. Finally, the rules will permit an MSS provider to construct and test, at the operator's risk, at any time after an MSS provider has initiated physical construction on the MSS system satellites and notified the Commission concerning the initiation of MSS system satellite construction and the MSS operator's intent to construct and test ATC facilities. The rule changes adopted in the Order on Reconsideration will have no significant economic impact on small entities because the MSS operators will not be required to make use of the additional capability. Under the rules adopted in the Order on Reconsideration, the Commission has permitted additional flexibility that will enhance the ability of MSS operators to offer American consumers high quality, affordable mobile services on land, in the air, and over the oceans without using spectrum resources beyond the spectrum already allocated and authorized for MSS use in these bands.

The Commission also finds that this Order on Reconsideration—which brings additional flexibility to existing MSS licensees—will not affect a substantial number of small entities. There are currently five 2 GHz MSS licensees, two Big LEO MSS licensees and three L-band MSS licensees authorized to provide service in the United States. Although at least one of the 2 GHz MSS system licensees and one of the Big LEO licensees are small businesses, small businesses often do not have the financial ability to become MSS system operators because of the high implementation costs associated with satellite systems and services. We expect that, by the time of MSS ATC system implementation, these current small businesses will no longer be considered small due to the capital requirements for launching and operating a proposed system.

Pursuant to sections 4(i), 7, 302, 303(c), 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. sections 154(i), 157, 302, 303(c), 303(e), 303(f) and 303(r), this Order on Reconsideration is adopted and that part 25 of the rules is amended, as specified in the rule changes, effective September 11, 2003.

Background Congressional Mandate to Regulate Small Passenger-Carrying Commercial Motor Vehicles (CMVs)

Section 212 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA), (Pub. L. 106-159, 113 Stat. 1748, December 9, 1999), requires that the FMCSA make its safety regulations applicable to: (1) Commercial vans referred to as “camionetas,” and (2) those commercial vans operating in interstate commerce outside of commercial zones that have been determined to pose serious safety risks.

Prior to enactment of the MCSIA, section 4008(a)(2) of the Transportation Equity Act for the 21st Century (TEA-21) Public Law 105-178, 112 Stat. 107, June 9, 1998) amended the passenger-vehicle component of the commercial motor vehicle (CMV) definition in 49 U.S.C. 31132(1). CMV is now defined statutorily to mean a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle—

(A) has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater;

(B) is designed or used to transport more than 8 passengers (including the driver) for compensation;

(C) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or

(D) is used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103.

Under section 4008(b) of the TEA-21, operators of the CMVs defined by section 31132(1)(B) would automatically become subject to the FMCSRs one year after the date of enactment of the TEA-21, if they were not already covered, “except to the extent that the Secretary [of Transportation] determines, through a rulemaking, that it is appropriate to exempt such operators of commercial motor vehicles from the application of those regulations.” Section 4008(b) of the TEA-21 is a mandate either to impose the FMCSRs on previously unregulated smaller-capacity passenger vehicles, or to exempt through notice and comment rulemaking some or all of the operators of such vehicles.

On September 3, 1999, the Federal Highway Administration (FHWA) published an interim final rule to adopt the new statutory definition of a CMV (64 FR 48510).1 The agency revised its regulatory definition of CMV to be consistent with the statute, but exempted the operation of these small passenger-carrying vehicles from all of the FMCSRs pending the completion of a separate rulemaking in which the agency proposed requiring operators of such vehicles to file a motor carrier identification report, mark their CMVs with a USDOT identification number and certain other information, and maintain an accident register. The notice of proposed rulemaking (NPRM) for that rule was also published on September 3, 1999, at 64 FR 48518.

On January 11, 2001 (66 FR 2756), the FMCSA published a final rule that amended 49 CFR 390.5 to adopt the statutory definition of “commercial motor vehicle” published in the interim final rule on September 3, 1999. The final rule also revised § 390.3(f)(6) to require that all operators of CMVs designed or used to transport between 9 and 15 passengers for compensation (1) complete a motor carrier identification report (Form MCS-150) (49 CFR 390.19); (2) comply with certain provisions of the CMV marking regulation (49 CFR 390.21); and (3) maintain an accident register (49 CFR 390.15). These actions were intended to enable the agency to monitor the operational safety of all motor carriers operating small passenger-carrying vehicles for compensation. In addition, the three requirements were intended to help the agency compile information on the number of motor carriers operating small passenger-carrying vehicles for compensation, the location of their principal places of business, the number of vehicles operated, and the number of drivers employed.

On January 11, 2001 (66 FR 2767), FMCSA also published an NPRM for this proceeding. Section 212 of MCSIA required FMCSA to complete a rulemaking to determine whether motor carriers operating motor vehicles designed or used to transport between 9 and 15 passengers (including the driver) for compensation should be covered by the FMCSRs. Congress directed that, as a minimum, the regulations shall apply to (1) commercial vans referred to as “camionetas,” and (2) those commercial vans operating in interstate commerce outside of commercial zones that have been determined to pose serious safety risks.

This final rule makes the FMCSRs applicable to all motor carriers operating CMVs, designed or used to transport between 9 and 15 passengers (including the driver), in interstate commerce for “direct compensation” when the vehicle is operated beyond a 75 air mile radius (86.3 statute miles or 138.9 kilometers) from the driver's normal work-reporting location. This decision is based on: (1) The FMCSA's understanding of Congress's and the commercial passenger carrier industry's usage of the term “camionetas”; (2) analysis of comments submitted in response to the agency's August 5, 1998 (63 FR 41766) advance notice of proposed rulemaking (ANPRM) concerning the definition of CMV; (3) analysis of comments submitted in response to the September 3, 1999 interim final rule and NPRM; (4) analysis of comments submitted in response to the January 11, 2001 NPRM; and (5) an analysis of accident data concerning commercial van transportation of passengers. The agency believes that this approach will be more effective than other alternatives for responding to congressional and public safety concerns about the use of small passenger-carrying CMVs in long-haul for-hire operations throughout the United States, including such operations for compensation by foreign-based motor carriers to and from the United States.

Furthermore, section 212 of the MCSIA requires the agency to make the safety regulations applicable to camioneta operations. The statute did not define the term camioneta, but Congress issued an explanatory statement (see 145 Cong. Rec. H12868, at H12873, November 18, 1999) that suggests camioneta operations are those that involve transporting passengers from Mexico to the United States and vice versa.

FMCSA does not have information concerning the number of motor carriers with CMV operations that fit the description of camioneta. The Texas Department of Public Safety, in comments to the September 3, 1999 interim final rule and NPRM published on the same day, described camioneta operations as those transporting passengers “between major cities in Texas and the other southern States to and from our borders with Mexico.” Based on analysis of the National Highway Traffic Safety Administration (NHTSA) Fatality Analysis Reporting System (FARS), the agency believes the accident data suggest that, if there are fatal accidents involving these operators, the vast majority of vehicles appear to be registered in the United States. While they may travel between points in Mexico and the United States, the vehicles are not necessarily based in Mexico.

Rather than adopting a rule that specifically targets, in part, vehicles that actually cross the border, FMCSA continues to believe section 212 should be implemented by focusing on the distance traveled. The distance-based approach used in this final rule will capture CMV operators that transport passengers from the U.S.-Mexico border to major cities in Texas and other States. Carriers that actually cross the border will also be covered, but only in those instances where the driver operates the vehicle beyond a 75 air-mile radius from his or her normal work-reporting location. The distance the driver operates could be determined by enforcement personnel, by questioning the drivers about their employers, and by reviewing any available paperwork concerning the origin and the destination, regardless of which side of the U.S.-Mexico border the trip begins or ends.

Several alternatives or options to implement section 212 of MCSIA were considered. They included making the safety-related operational FMCSRs applicable to: (1) All motor carriers operating small passenger-carrying CMVs in interstate commerce for compensation (direct and indirect), irrespective of the distance traveled; (2) all motor carriers operating small passenger-carrying CMVs in interstate commerce that are directly compensated, irrespective of the distance traveled; and (3) only those motor carriers operating small passenger-carrying CMVs across the U.S.-Mexico border for compensation. FMCSA believes the alternative being implemented through this final rule will improve the safety performance of for-hire motor carriers that pose a serious safety risk to their customers and the traveling public, while avoiding to the greatest extent practicable, the imposition of Federal safety regulations on van operations that are local in nature and appear to pose a significantly lower level of safety risk.

In the NPRM (66 FR 2767, January 11, 2001), the FMCSA requested public comment on making the safety regulations in parts 390, 391, 392, 393, 395 and 396, and the safety fitness rules in part 385, applicable to motor carriers operating CMVs designed or used to transport between 9 and 15 passengers (including the driver) in interstate commerce, when they are directly compensated for such services and the transportation of any passenger covers a distance greater than 75 air miles (86.3 statute miles or 138.9 kilometers). The agency made clear that the operators of these small passenger-carrying vehicles would be subject to the same safety requirements as motorcoach operations, with the exception of the commercial driver's license, and controlled substances and alcohol testing regulations.

FMCSA received 29 comments in response to the NPRM. The commenters were: Academy Bus Co. (Academy); Advocates for Highway and Auto Safety (Advocates); AFL-CIO Transportation Trades Department (AFL-CIO); Amalgamated Transit Union (ATU); American Bus Association (ABA); the Association for Commuter Transportation (ACT); California Highway Patrol (CHP); Colorado Department of Public Safety (CDPS); the Commercial Vehicle Safety Alliance (CVSA); Farmworkers Justice Fund (FJF); Greyhound Lines, Inc. (Greyhound); League of United Latin American Citizens (LULAC); Pennsylvania Bus Association (PBA); Mr. Alan Jay Pomerance, a concerned citizen; National Association of State Directors of Pupil Transportation Services (State Directors); National Automobile Dealers Association (NADA); National Council of La Raza (NCLR); National Limousine Association (NLA); National School Transportation Association (NSTA); New Jersey Department of Transportation (NJDOT); Taxicab, Limousine & Paratransit Association (TLPA); Texas Bus Association (TBA); Texas Department of Public Safety (TXDPS); United Motorcoach Association (UMA); and four college students.

TXDPS, PBA, LULAC, NCLR and FJF fully supported the proposal as published. ABA, TBA, Greyhound, Academy, CHP, CDPS, CVSA, Advocates, ATU, NJDOT, AFL-CIO, NSTA, State Directors, Mr. Pomerance, and the four students were in favor of the FMCSA's rulemaking, although they generally believed that more remains to be done to protect public safety and help level the playing field. Advocates and UMA opposed the exclusion of small passenger-carrying vehicle operations within the proposed 75 air mile range. NLA, TLPA, NADA, and ACT, on the other hand, opposed making the safety regulations applicable to their members.

Eight commenters opposed the direct compensation criterion for determining the applicability of the safety requirements. Five commenters supported making safety-related operational regulations applicable to vehicles designed or used to transport between 9 and 15 passengers when the company holds itself out to the public as providers of transportation services, or when a company is primarily engaged in providing surface transportation. ABA suggested that the agency use the phrase “primarily engaged in for-hire transportation.” ABA points out that in applying requirements of the Americans with Disabilities Act for over-the-road buses, DOT used the terminology “primarily engaged in transportation” in 1998 regulations (63 FR 51670, 51692; September 1998).

Response: FMCSA agrees with commenters that the rule should focus first and foremost on motor carriers of passengers that offer their services to the general public. However, the agency disagrees with commenters' assertions that the term “primarily engaged in providing surface transportation” is a better criterion for determining the applicability of the FMCSRs to these motor carriers. The term “primarily engaged in providing surface transportation” requires that both the motor carrier and enforcement officials consider all of the motor carrier's business activities before determining whether the safety regulations apply. Each entity that operates small passenger-carrying vehicles for compensation in interstate commerce, regardless of the distance traveled, is considered a motor carrier, as defined in 49 CFR 390.5. Motor carriers and enforcement officials would have to determine whether the percentage of business that concerns the for-hire transportation of passengers is sufficient for the motor carrier to be primarily engaged in providing surface transportation. This may vary from season to season, or year to year. Generally, enforcement opportunities would be limited to carrier visits, unless enforcement officials conducting destination inspections or similar activities knew, or had reason to believe, that the entity responsible for the operation of the vehicle was primarily engaged in providing surface transportation of passengers.

By contrast, the approach FMCSA proposed and adopts makes the FMCSRs applicable for each interstate trip beyond a 75 air mile radius of the driver's normal work-reporting location, regardless of the percentage of the motor carrier's business involving the for-hire transportation of passengers. Motor carriers and enforcement officials need only determine the distance that the vehicle would be operated (in the case of the motor carrier planning a trip) or was operated (in the case of the enforcement official), and whether the vehicle was being operated for direct compensation. This could be accomplished by interviewing the driver and passengers to determine the nature of the trip. The inspector need not know about, and the motor carrier need not estimate, the percentages of the company's business operations involving for-hire passenger transportation in order to determine whether the FMCSRs are applicable to the trip in question.

We believe that our approach establishes a higher standard of safety for the operators of small passenger carrying vehicles than the approach recommended by the commenters. FMCSA's approach makes the rules applicable to every trip that meets the criterion, regardless of whether the entity is primarily engaged in transportation. Conversely, commenters would permit potentially unsafe operators to legally continue their long-haul van operations, provided they were not primarily engaged in the for-hire transportation of passengers. FMCSA believes that the approach adopted by this rule achieves a higher standard of safety.

Generally, only entities that assess a fee, monetary or otherwise, directly for the transportation of passengers would be subject to the safety regulations. The use of small passenger-carrying CMVs for compensation, by such operators as hotel/motel shuttle, rental car shuttle, and whitewater river rafter transporter services, using small passenger-carrying CMVs, would not be subject to the safety-related operational regulations, irrespective of the distance traveled. Since these businesses do not hold themselves out to the public as providers of transportation services and generally operate over short distances, FMCSA continues to believe that it is not necessary to impose safety-related operational regulations on them.

In response to Greyhound, the ATU, and other commenter assertions that the proposed rule would enable some motor carriers to avoid safety oversight by structuring their fees or fares as a total package charge, FMCSA does not believe the nature of most of these carrier operations is such that their identity as for-hire motor carriers of passengers can be effectively concealed. In such instances, carriers would have to devise a scheme wherein they would provide some other substantive service so that the transportation by motor vehicle of the passenger is incidental to some other function. Given that most passengers of these motor carriers expect to depart specific locations at specific times, and arrive at their destinations in a timely manner, it is unlikely the motor carriers this rule is intended to cover could maintain effective customer relationships by engaging in activities that would increase significantly the time required to complete a trip, or the fares customers must pay for the transportation service. In addition to differences in the nature of the transportation service, FMCSA believes the market forces of supply and demand and competitive pricing would discourage a commercial operator of a small passenger-carrying vehicle from employing this strategy to avoid regulation. Motor carriers that employ this strategy would place themselves at an economic disadvantage with other for-hire carriers that provide transportation services between the same locations.

FMCSA proposed making the safety regulations applicable when the transportation of any passenger covers a distance greater than 75 air miles. Greyhound and the ABA supported the 75 air-mile standard. However, fifteen commenters opposed the standard.

The CVSA argued that commercial motor vehicles should be subject to the FMCSRs regardless of how far they travel. The State Directors stated a distance-based approach to applying the FMCSRs to commercial vans is neither reasonable nor feasible. The State Directors opined that the 37 percent of fatal van crashes at distances less than 75 miles is a substantial number and should not be ignored.

Response: FMCSA carefully analyzed accident data from the NHTSA Fatality Analysis Reporting System (FARS). Based on this analysis, FMCSA determined, to the greatest extent practicable, that vans most likely to pose a safety risk were those operating at a distance approximately 75 air miles or more from the driver's work-reporting location. The methodology for estimating this distance is explained below.

FMCSA reviewed the data fields in FARS to determine whether it would be possible to estimate the distance a large van may have traveled prior to being involved in the fatal accident, and if there was any way to identify those accidents most likely to have involved interstate transportation. The agency determined that FARS could provide potentially useful information to help identify the accidents most likely to have involved interstate transportation, based on a comparison of data fields for the State in which the vehicle crashed, the State in which the vehicle was registered, and the State of the driver's license.

FMCSA estimated the approximate distance between the geographic area of the driver's residential zip code and the county and State in which the crash took place. The distances were computed for almost all fatal accidents involving a large van transporting 9 or more people at the time of the accident for calendar years 1996, 1997, and 1998. The agency operated under the assumption that the most likely trips to be considered interstate in nature are ones in which the State of registration of the vehicle and State of issuance for the driver's license differ from the State where the vehicle crashed.

There were 161 fatal accidents between 1996 and 1998 (49 crashes in 1996, 54 crashes in 1997, and 58 crashes in 1998) in which the vehicle was transporting 9 or more passengers at the time of the crash. The FARS information for seven of the accidents lacked one or more of the data items needed for the analysis. Two of the accidents involved U.S. Government vehicles and were excluded from the analysis since they would not be covered by the rulemaking—the FMCSRs include an exception for transportation performed by the Federal government, a State, or any political subdivision of a State (49 CFR 390.3(f)). Five of the accidents involved Mexico-licensed drivers operating vehicles registered in the United States and one involved a Mexico-licensed driver operating a vehicle for which the database did not include registration information. It was not possible to complete the distance analysis for those accidents.

Of the remaining 146 fatal accidents in which the large van was transporting 9 or more people at the time of the crash, 45 of them (approximately 31 percent) appear to have been interstate trips with the crash taking place in a State other than the State where the driver was licensed, and at a distance greater than 100 statute miles from the driver's residence. The shortest distance among the likely interstate trips was just over 100 statute miles, while the longest was more than 2,100 statute miles (a trip involving a driver licensed in California, a large van registered in Oregon, and a fatal crash in Louisiana).

Forty-seven of the 146 fatal accidents (approximately 32 percent) appear to have been intrastate trips with the fatal accident taking place in the State where the driver was licensed and where the vehicle was registered, and at a distance greater than 100 statute miles from the driver's residence. The shortest distance among the likely intrastate trips was just over 100 statute miles, while the longest was more than 550 statute miles (a trip involving a driver licensed in California, a large van registered in California, and a fatal crash in California).

Fifty-four of the accidents (37 percent) occurred within 100 statute miles of the driver's residence with only a small percentage (seven out of 54 crashes, approximately 13 percent) involving what appears to be an interstate trip.

Overall, approximately 63 percent of the fatal accidents involving large vans occurred between 100 and 2,200 statute miles from the driver's residence with the longest distances linked typically to the trips that were most likely interstate in nature.

It is not possible to determine the distance the driver may have traveled to get to the work-reporting location, or to determine whether the van was operated by an individual working from home. However, FMCSA has factored into the analysis a maximum distance of 25 statute miles between the driver's residence and a possible work-reporting location. The Federal Highway Administration (FHWA) “Summary of Travel Trends 1995 Nationwide Personal Transportation Survey,” FHWA-PL-00-006, December 1999, discussed in the NPRM, indicates that the average commute to work among the individuals participating in the survey was 11.63 miles. To decrease the likelihood of underestimating the average commuting distances of drivers of small passenger-carrying CMVs, the agency used an estimate of 25 miles, a little more than twice the average in the nationwide survey. When the estimated 25 statute miles for commuting to work is deducted from the estimates of the distance between the driver's residence and the crash location, the result is an estimate of 75 statute miles as the distance the driver may have traveled from the work reporting location to the crash site.

For simplicity, the agency used 75 air miles, which is equivalent to 86.3 statute miles, because the motor carrier industry and enforcement community have experience using air-miles, and the hours-of-service rules include an exemption from the records-of-duty status requirement for drivers operating within a 100 air-mile radius of their work-reporting location.

As discussed in the above analysis that was the basis for the NPRM, the agency continues to believe a mileage threshold of 75 air miles (86.3 statute miles or 138.9 kilometers) should be used for determining the applicability of the safety regulations to for-hire operations of small passenger-carrying vehicles operating in interstate commerce. The analysis indicates that approximately 63 percent of 146 fatal accidents, in which a large van was actually transporting 9 or more occupants at the time of the crash, involved drivers that apparently traveled more than 75 statute miles from their work-reporting location. While the agency certainly agrees with commenters' concerns that the remaining 37 percent of the fatal accidents should not be ignored, this rule would not affect most of those accidents, given that they appear to be primarily intrastate in nature. Section 212 of the MCSIA does not extend FMCSA's jurisdiction to regulate intrastate passenger-carrier operations. Accordingly, the final rule adopts a 75 air-mile threshold.

However, in this final rule, the agency is revising its proposed distance threshold to focus on the distance that the driver operates the vehicle, as opposed to the distance that the passengers are transported. The agency is aware of the potential complexities involved with the 75 air-mile standard proposed in the NPRM. In many cases, it would be difficult to determine the distance the passengers were transported in order to determine whether the safety-related operational regulations apply to the motor carrier. This is especially true when passengers are picked up or dropped off at multiple locations. To simplify compliance and enforcement, FMCSA will apply its safety regulations whenever a vehicle that is designed or used to transport between 9 and 15 passengers (including the driver) for direct compensation is operated beyond a 75 air mile radius from the driver's normal work-reporting location. The agency believes that use of the driver's normal work reporting location provides an easier means for motor carriers and enforcement personnel to determine the applicability of the safety regulations, and will help to promote greater levels of compliance and ensure consistency in the enforcement of the rules.

FMCSA requested public comment on the feasibility of making the adoption and enforcement of compatible safety regulations applicable to small passenger-carrying CMVs operated in interstate commerce a condition of receiving Motor Carrier Safety Assistance Program (MCSAP) funds. The agency also requested comments on whether the variances from the FMCSRs allowed in State laws and regulations should be amended to require the adoption and enforcement of intrastate regulations applicable to the intrastate operation of these types of vehicles. Six commenters believed FMCSA should require the States to adopt compatible safety regulations concerning the operation of small passenger carrying commercial vehicles.

Response: Although FMCSA agrees with the commenters that States should have compatible regulations, the agency does not believe it is necessary to require that all States adopt intrastate requirements that are compatible with this final rule. The agency continues to believe that State agencies should be given flexibility in responding to unique safety issues or concerns involving the intrastate operation of small passenger-carrying vehicles.

The MCSAP is a Federal grant program that provides financial assistance to States to reduce the number and severity of accidents and hazardous materials incidents involving CMVs. The goal of the MCSAP is to reduce CMV-involved accidents, fatalities, and injuries through consistent, uniform, and effective CMV safety programs. The MCSAP sets forth the conditions for participation by States and local jurisdictions and promotes the adoption and uniform enforcement of safety rules, regulations, and standards compatible with the FMCSRs and Federal Hazardous Materials Regulations (HMRs) for both interstate and intrastate motor carriers and drivers. The MCSAP rules are codified in 49 CFR parts 350 and 355.

As a condition of participation in the MCSAP, States are required to adopt and enforce compatible regulations concerning the interstate operation of small passenger-carrying CMVs since FMCSA is adopting regulations applicable to these operations. The agency is not amending the variances under § 350.341, which means that the States are not required to adopt and enforce regulations concerning the intrastate operation of small passenger-carrying CMVs. However, FMCSA encourages the States to adopt and enforce intrastate laws and regulations concerning the operation of these CMVs if their accident data warrants such action.

Based on the agency's analysis of the FARS data for 1996, 1997, and 1998, approximately 32 percent (51 out of 161) of all fatal crashes involving large vans transporting 9 or more passengers at the time of the accident during those three years occurred in just three States (California (24 fatal accidents), Texas (15 fatal accidents), and Florida (12 fatal accidents)). This suggests that it may not be necessary for each State to adopt and enforce intrastate regulations concerning small passenger-carrying CMVs. However, States such as California, Texas, and Florida should give strong consideration to adopting and enforcing intrastate regulations given the FARS data.

Seven commenters supported making the commercial driver's license (CDL), and controlled substances and alcohol testing regulations applicable to commercial van operations.

Response: While FMCSA understands commenter concerns, section 212 of the MCSIA did not expand the agency's statutory authority concerning the establishment and enforcement of the CDL and controlled substances and alcohol testing rules. Congress did not amend the statutory definition of “commercial motor vehicle” in chapter 313 of title 49, United States Code, which governs the applicability of the CDL and controlled substances and alcohol testing requirements. Therefore, FMCSA does not have the statutory authority to apply these requirements to commercial van operations. The passenger-carrying threshold that Congress provided under that statutory definition remains at 16 or more passengers, including the driver.

The proposed rule requested comments on making the safety fitness procedures under part 385 applicable to motor carriers operating small passenger-carrying CMVs. The safety fitness procedures in 49 CFR part 385 provide guidance in assessing the safety management controls that motor carriers use to ensure compliance with the FMCSRs. Five commenters supported applicability of safety fitness procedures to such carriers. No commenter expressed specific opposition in relation to this proposal.

Response: FMCSA continues to believe that it is appropriate to make the safety fitness procedures applicable to motor carriers that operate vehicles designed or used to transport between 9 and 15 passengers, when the carrier is directly compensated for its transportation services, and the commercial vehicle is operated beyond a 75 air mile radius from the driver's normal work-reporting location. Motor carriers operating small passenger-carrying CMVs are now subject to compliance reviews and the same safety fitness procedures and standards used to evaluate other interstate motor carriers. Therefore, section 385.1, as amended on May 13, 2002 (67 FR 31978), by the interim final rule concerning new entrant motor carriers, made part 385 applicable to all motor carriers subject to the FMCSRs, except non-business private motor carriers of passengers. Carriers that operate small passenger-carrying vehicles, and that receive an “Unsatisfactory” safety rating will be prohibited from operating CMVs to transport passengers in interstate commerce. In addition, these motor carriers will be ineligible to contract or subcontract with any Federal agency for transportation of passengers in interstate commerce.

The FMCSA is revising the FMCSRs to require that motor carriers operating CMVs that are designed or used to transport between 9 and 15 passengers (including the driver) for direct compensation in interstate commerce (including transportation between points in Canada or Mexico, and points in the United States) comply with the regulations contained in 49 CFR parts 390, 391, 392, 393, 395 and 396, and the safety fitness procedures in part 385, when the driver of the vehicle operates it beyond a 75 air mile radius (86.3 statute miles or 138.9 kilometers) from his/her normal work-reporting location. This means the motor carriers are required to ensure that each of their drivers meet all of the minimum qualifications for interstate CMV drivers, including physical qualifications prescribed in part 391, and maintain records to document compliance. The driver disqualification provisions of 49 CFR 391.15 are also applicable. Motor carriers and their drivers must also comply with the driving rules of part 392, and vehicles must meet all applicable requirements in part 393 concerning parts and accessories necessary for safe operation.

To avoid potential confusion, the exception under § 390.3(f)(6) has been revised to exempt the operation of CMVs designed or used to transport between 9 and 15 passengers, not for direct compensation, provided the vehicle does not otherwise meet the definition of a commercial motor vehicle (emphasis added). The agency believes that the proposed regulatory language could have been misunderstood to imply that vehicles designed or used to transport between 9 and 15 passengers, not for direct compensation, are exempt from the FMCSRs, even if the CMV meets the 10,001-pound weight threshold for applicability of the safety regulations, or is used to transport hazardous materials in a quantity requiring the use of placards.

Part 396 requires that each motor carrier must have a systematic inspection, repair, and maintenance program for the CMVs it operates, and must ensure that vehicles are in safe and proper operating condition at all times. They must also maintain records to document compliance with these rules.

In addition, motor carriers must ensure that each vehicle is inspected at least once every 12 months by a qualified inspector/mechanic and that any motor carrier employee responsible for the adequacy of any brake-related inspection, repair, or maintenance work meets certain minimum qualifications. They must also maintain records to document compliance with these rules.

Motor carriers must ensure that their drivers comply with the hours-of-service requirements of part 395, including reporting, recordkeeping, verifying, and responding to law enforcement requests. No driver of a passenger-carrying CMV may drive more than 10 hours following 8 consecutive hours off duty. No driver may operate a passenger-carrying CMV if the driver has been on duty more than 15 hours following 8 consecutive hours off duty (regardless of whether he or she drove). Furthermore, drivers of passenger-carrying CMVs must not drive after being on duty 60 hours in any seven consecutive days if the motor carrier does not operate CMVs every day of the week (60-hour rule), or after being on duty 70 hours in any eight consecutive days if the motor carrier operates CMVs every day of the week (70-hour rule). For drivers that operate passenger-carrying CMVs beyond a 100 air-mile radius of the normal work-reporting location, a record of duty status (log book) is required to document the number of hours on duty and the number of hours driving.

The hours of service rules include a 100 air-mile radius exemption from the log book requirement for drivers who operate passenger-carrying vehicles within a 100 air-mile radius of their normal work reporting location, provided the driver: returns to the work reporting location and is released from work within 12 consecutive hours; has at least 8 consecutive hours off duty separating each 12 hours on duty; and does not exceed 10 hours maximum driving time following 8 consecutive hours off duty. As an alternative to the log book, motor carriers of passengers must maintain accurate time records showing the time the driver reports for duty each day, the total number of hours the driver is on duty each day, the time the driver is released from duty each day, and the total time for the preceding 7 days for drivers used for the first time or intermittently.

As discussed above, the agency is not (emphasis added) making the CDL and controlled substances and alcohol testing requirements applicable to operators of small passenger-carrying CMVs, because neither section 4008 of the TEA-21 nor section 212 of the MCSIA amended the statutory definition of CMV used for those regulations (49 U.S.C. 31301). Consequently, the passenger-carrying threshold for CDL, and controlled substances and alcohol testing requirements remains at 16 (including the driver).

After the effective date of this rule, motor carriers will have 90 days (or 120 days from the Federal Register publication date) to comply with the safety regulations. The agency believes this is sufficient time for the affected motor carriers to establish and implement safety management controls to achieve compliance with the FMCSRs. Furthermore, the agency believes that NHTSA FARS data suggest that it is in the public interest to require compliance with the FMCSRs as soon as practicable.

The FMCSA has determined that some of the motor carriers covered by this rulemaking may also be subject to the agency's rules for transporters of migrant workers in 49 CFR part 398. The agency prescribes certain requirements for motor carriers that transport migrant workers a total distance of more than 75 miles in interstate or foreign commerce. Section 398.1 defines a migrant worker as any individual proceeding to or returning from employment in agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 203(f)) or section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)). The term “carrier of migrant workers by motor vehicle” means any person, with certain limited exceptions, who transports in interstate or foreign commerce at any one time three or more migrant workers to or from their employment by any motor vehicle other than a passenger automobile or station wagon.

Carriers of migrant workers that are directly compensated for their transportation services and that operate vehicles designed or used to transport between 9 and 15 passengers, in interstate commerce, are covered by this final rule if the driver operates beyond a 75 air-mile radius from their normal work reporting location. The final rule generally establishes more stringent safety requirements than those found in 49 CFR part 398. This is not the case, however, with § 398.6, which prohibits motor carriers from permitting or requiring drivers to operate vehicles for more than 10 hours in any 24-hour period, unless the driver is given eight hours rest immediately following the 10 hours driving time. This daily limit is more restrictive than the comparable provision for drivers of larger passenger-carrying CMVs (§ 395.5(a)(1)), which allows a driver to drive up to 16 hours out of 24 under certain circumstances.

Although compliance with part 395 would result in a less restrictive requirement in this instance, FMCSA does not believe this deviation is significant in terms of highway safety. The restriction in part 398 is based only on the amount of time the driver operates the vehicle that transports the migrant workers but does not take into account other activities that may affect the driver's fitness for duty and level of alertness. Part 395 includes rules to prohibit driving after being on-duty (both driving time and time spent performing other tasks) for more than 15 hours following at least eight consecutive hours off-duty. Part 395 also takes into account any compensated work, irrespective of whether the work was performed for the motor carrier. For example, if the driver has a part-time job, the time spent on the part-time job must be factored into the calculations to determine the available driving time. FMCSA believes that overall, part 395 is more stringent than part 398 and that compliance with all of the requirements of part 395 will improve safety.

FMCSA believes that it is appropriate to require more rigorous safety standards for carriers of migrant workers if their operations are conducted in a manner similar to intercity motorcoach businesses. Therefore, the agency is amending § 398.2, Applicability, of the transporters of migrant worker rules to make it clear to the affected motor carriers when they must comply with the same FMCSRs as intercity motorcoach operations.

Part 385 of the FMCSRs establishes procedures to determine the safety fitness of motor carriers, assign safety ratings, take remedial action when required, and prohibit motor carriers receiving an “Unsatisfactory” safety rating from operating a CMV. As a result of this final rule, motor carriers operating small passenger-carrying CMVs are now covered by the same safety fitness procedures and standards used to evaluate other interstate motor carriers. This means that motor carriers affected by this rulemaking will be subject to compliance reviews and receive safety ratings. Those receiving an “Unsatisfactory” safety rating will be prohibited from operating CMVs to transport passengers in interstate commerce. In addition, these motor carriers will be ineligible to contract or subcontract with any Federal agency for transportation of passengers in interstate commerce. The agency is amending § 385.1, Purpose and scope, to reflect the new passenger-carrying threshold for the applicability of the FMCSRs and the safety fitness procedures.

FMCSA has attempted to evaluate the potential costs of the final rule. The agency has considered currently available data concerning the number of affected motor carriers, CMVs, and drivers. The agency estimates that this rulemaking could affect up to 1,843 for-hire motor carriers of passengers with active operating authority who operate only CMVs with a seating capacity of 15 passengers or less.

Each of these motor carriers has on file with the FMCSA proof of financial responsibility at the minimum level required for the operation of vehicles designed to transport less than 16 passengers. This number does not include the following: (1) motor carriers that may have pending applications for operating authority; (2) passenger carriers shown as inactive because their authority was revoked for failure to maintain evidence of the required minimum levels of financial responsibility; (3) private motor carriers of passengers; or (4) carriers which also operate larger vehicles, as well as smaller vehicles. This number may also overstate the population of affected carriers since some of the licensed carriers may be exclusively operating equipment carrying less than 9 passengers.

With regard to the number of drivers and vehicles that would be covered by the safety regulations, FMCSA does not have a definitive source for this information at this time because for-hire small passenger motor carriers were only recently required to complete the Form MCS-150, Motor Carrier Identification Report, which is used to gather information about motor carriers subject to the FMCSRs. However, the agency is now gathering data to better estimate the number of affected carriers, drivers, and vehicles.

In the absence of other sources of information, the agency believes certain estimates provided by the Taxicab, Limousine & Paratransit Association (TLPA) is useful in helping to estimate the number of drivers and vehicles that will be covered by this final rule. In comments submitted in response to the August 5, 1998, ANPRM (63 FR 41766) on the subject of safety requirements for the operators of small passenger-carrying CMVs, the TLPA estimated that there are 74,000 vans nationwide being operated for compensation. The TLPA estimated that van fleets average less than 10 vans. In addition, the TLPA estimated that if the agency made the FMCSRs applicable to the operation of small passenger-carrying vehicles, approximately 14,000 companies, 125,000 vehicles, and 165,000 drivers would be covered.

FMCSA believes most of the estimates provided by the TLPA appear to be representative of businesses that would not be covered by this rule, because this rulemaking applies to long-haul van operations, not for-hire operations that are local in nature. However, the agency will use the TLPA's previous estimate of the number of vehicles per fleet (10 vans) as a baseline estimate for the number of vehicles that would be covered. This means that approximately 18,430 small passenger-carrying vehicles (10 vans per fleet × 1,843 for-hire operations) would be covered under the FMCSRs.

The use of the estimates above is not intended to serve as a determination whether the passenger-carrying operations are small businesses. The estimates are used solely for the purpose of estimating the potential costs of this rulemaking action. TLPA's comments concerning the agency's estimate of the number of small businesses that could be affected by this rulemaking are addressed in the rulemaking analysis portion of this notice.

The agency estimates that the number of drivers affected will be a fraction of the 165,000 drivers in the TLPA estimate since the proposal is targeted at drivers in the long-haul segment of the small passenger carrier industry. The agency believes the total number of drivers will be approximately 22,000 (165,000 divided by 7.5) since the number of motor carriers currently operating as for-hire motor carriers of passengers with small passenger-carrying vehicles is approximately one-seventh of the TLPA's estimate of all for-hire motor carriers.

In order to evaluate accurately the cost implications of the proposed rule, FMCSA reviewed earnings information from the “Occupational Outlook Handbook,” 2000-01 Edition, Bulletin 2520, published by the U.S. Department of Labor. We are using the earnings information to determine the costs of requiring motor carrier employees and individuals who perform services for motor carriers to complete certain records that would not otherwise be completed in the normal course of business, and to perform certain tasks associated with complying with the requirements.

The agency is using the earnings figures for taxi-drivers and chauffeurs because the drivers in question generally do not meet the qualifications requirements for intercity bus drivers. The median hourly earnings of taxi drivers and chauffeurs, excluding tips, were $7.48 in 1998. The middle 50 percent earned between $6.02 and $9.79 an hour. The lowest 10 percent earned less than $5.55 and the highest 10 percent earned more than $12.44 an hour. For the purpose of preparing cost estimates for imposing safety-related operational rules, the agency will use $12.44 an hour to decrease the likelihood of underestimating the impact of this rulemaking.

The “Occupational Outlook Handbook” shows the estimated median hourly earnings for automotive mechanics and service technicians, including commission, were $13.16 in 1998. The middle 50 percent earned between $10.02 and $17.14 an hour. The lowest 10 percent earned less than $7.44 and the highest 10 percent earned more than $21.25 an hour. For the purpose of preparing cost estimates for this rulemaking the agency is using $21.25 an hour.

FMCSA is using $22 an hour as the estimated earnings for supervisors and managers of transportation. The “Occupational Outlook Handbook” did not include a specific category for transportation supervisors so the agency is operating under the assumption that these supervisors are paid more than the individuals they supervise. The agency estimated that the supervisors are paid $ 0.75 an hour more than the service technicians, or $22.

Drivers subject to the rule are required to obtain a medical examiner's certificate. FMCSA estimates that the average cost of a comprehensive medical examination is $300. This cost includes an estimate of the driver's out-of-pocket expenses or co-payment and an estimate of the amount the driver's health insurance company would pay the medical examiner. Since a medical examiner's certificate is usually valid for 24 months, the FMCSA estimates the prorated annual cost of CMV driver medical certifications to be approximately $3,300,000 [($300 per exam per driver ) × (22,000 drivers) = $6,600,000 every two years] based on an estimated 22,000 drivers who would be subject to the rule.

Generally, it takes a medical examiner, such as a physician, doctor of osteopathy, physician assistant, advance practice nurse, or doctor of chiropractic, about 20 minutes to complete a medical examination form and one minute to fill out the medical certificate. Based on the $132,000 median annual earning of a general/family practice physician listed in the Department of Labor's “Occupational Outlook Handbook” and an estimated 2,080 hours of work per year, the earnings are equal to approximately $63 an hour. The estimated costs to the industry for having medical examiners complete the required paperwork would be $485,100 ($63 an hour × (21 minutes × 1 hour per 60 minutes) × 22,000 medical exams performed for drivers). This is the cost every two years. The cost each year would be $242,550.

Therefore, the total annual costs for the physical exam would be approximately $3,542,550.

FMCSA estimates that the operators of small passenger-carrying CMVs will have to create 22,000 driver qualifications files during the first year and create approximately 2,860 new files (13 percent of 22,000) each year thereafter as a result of driver turnover, retirement, etc. The estimate of driver turnover is the same used for previous information collection burden estimates for driver qualifications files. This means that motor carriers will be responsible for maintaining approximately 19,140 existing files (22,000 − 2,860) every year after the first year this rule is in effect and creating 2,860 new files per year.

The creation of a single, complete driver qualification file involves an annual expenditure of approximately 25 minutes, which is the sum of 21 minutes of paperwork by a safety director, driver supervisor, or equivalent position, and 4 minutes of paperwork by a driver. For the first year, the cost would be $188,557 (0.35 hours per driver employed × 22,000 drivers × $22 an hour per supervisor) plus (0.07 hours per driver employed × 22,000 drivers × $12.44 an hour per driver), or $169,400 for the time supervisors spend on this task and $19,157 for drivers. For subsequent years the cost for creating new driver qualification files would be $24,512 (0.35 hours per driver employed × 2,860 drivers × $22 an hour per supervisor) plus (0.07 hours per driver employed × 2,860 driver × $12.44 an hour per driver), or $22,022 for the time supervisors spend on this task and $2,490 for drivers.

Each driver is required by § 391.27 to furnish their employing motor carrier with a list of traffic violations. FMCSA estimates that it takes a driver approximately 2 minutes to complete the list. Motor carriers are required to conduct an annual review of their drivers' records. The agency estimates that it takes approximately 5 minutes per driver to complete this task. The cost of complying with the list of traffic violations is $7,143 [19,140 drivers × (0.03 hours per driver) × ($12.44 an hour for a driver)]. The cost of complying with the annual review is $33,686 [(19,140 drivers) × (0.08 hours per driver) × ($22 an hour for a supervisor)]. The total cost per year for the annual list of violations and the review of the driving record is $40,829.

Therefore, the estimated cost for driver qualification files is $188,557 for the first year carriers are required to comply with the safety-related operational provisions of the FMCSRs, and $65,341 for each subsequent year ($24,512 for creating new qualification files, $7,143 for the list of traffic violations, and $33,686 for the driving record review).

As indicated above, FMCSA believes the final rule will apply to 22,000 drivers. It is estimated that each driver would spend approximately 6.5 minutes per workday to complete a record of duty status and work 240 workdays a year. The information collection burden for completing the record of duty status would be approximately 571,999 hours [22,000 drivers × (6.5 minutes per day × 1 hour per 60 minutes) × (240 workdays)]. The estimated total cost burden related to completing the record of duty status is approximately $7,115,667 based on an estimated time burden of 571,999 hours at $12.44 an hour for drivers. This time and cost burden estimate takes into consideration two weeks of sick/vacation leave for these drivers.

FMCSA estimates that each motor carrier, affected by this rule, will need a supervisor responsible for reviewing its drivers' records of duty status and that the supervisor will spend approximately three minutes per day reviewing each driver's records to ensure compliance with the hours-of-service rules. The information collection burden for reviewing the record of duty status would be approximately 264,000 hours [22,000 drivers x (3 minutes per day per driver's log x 1 hour per 60 minutes) x (240 workdays)]. Using the earnings estimate presented above (i.e., $22 per hour for supervisors), the annual cost would be $5,808,000.

Therefore, the total costs for requiring motor carriers to comply with part 395 would be $12,923,667.

FMCSA estimates the various recordkeeping requirements in part 396 related to vehicle inspection, repair, and maintenance would involve an estimated total annual expenditure of 12 hours and 57 minutes per CMV (48 minutes for systematic inspection, repair, and maintenance; 724 minutes for driver vehicle inspection reports; and 5 minutes for periodic inspection). Evidence of an individual's qualifications to perform periodic vehicle inspections must be retained by the motor carrier. Evidence of an individual's qualifications to be a brake inspector must also be retained. The creation of these two types of qualification evidence involves an estimated one-time, non-recurring expenditure of 5 minutes by a safety director, driver supervisor, or equivalent position for each type of qualification.

The systematic inspection, repair, and maintenance records would be completed by a mechanic. The periodic inspection records would also be prepared by a mechanic. The estimated hourly earnings for a mechanic is $21.25 as indicated above. If the mechanic must spend approximately 53 minutes per year per vehicle, the cost per year per vehicle for recordkeeping would be approximately $18.77. If there are 18,430 vehicles that would be covered by the proposed rule, the total cost for systematic inspection, repair, and maintenance, and periodic inspection records would be $345,931.

Drivers must prepare vehicle inspection reports at the end of each workday. It is estimated that each driver would spend 724 minutes per year, or 12.06 hours per year completing the paperwork. Using the earnings estimate of $12.44 an hour, the cost for having drivers prepare vehicle inspection reports would be $150 per driver per year. Based on an estimate of 22,000 drivers, the cost per year for the industry would be $3,300,000.

Finally, looking at the cost for inspector qualifications, FMCSA believes the paperwork would be completed by a supervisor. Using the earnings estimate of $22 an hour, and an information collection burden of 10 minutes (five minutes for each certification of qualifications), the cost per carrier would be $3.66. The total non-recurring cost would be approximately $6,745.

Therefore, the estimated total cost burden related to the vehicle inspection, repair, and maintenance recordkeeping is approximately $3,652,676 per year.

The sum of all estimated costs of requiring operators of small passenger-carrying CMVs to comply with parts 391, 395, and 396 is $23,850,000 for the first year and $20,184,234 each year thereafter. A summary of the first-year costs is presented below:

FMCSA is not able to quantify the benefits at this time because the agency does not have detailed accident causation data. However, the agency believes that operational safety will be improved through compliance with the FMCSRs. Furthermore, section 212 of the MCSIA requires that the agency make its safety regulations applicable to: (1) Commercial vans referred to as “camionetas,” and (2) those commercial vans operating in interstate commerce outside of commercial zones that have been determined to pose serious safety risks.

The agency believes the benefits of this rulemaking outweigh the estimated costs. The benefit of preventing as few as 8 of the 58 fatal accidents in 1998 involving large vans transporting 9 or more passengers at the time of the crash would outweigh the estimated costs. This is especially the case when consideration is also given to the prevention of injury and property-damage only accidents that occur annually.

FMCSA has considered the accident information submitted by commenters. The agency also considered data from the NHTSA FARS. The data suggests that there may be serious safety management control problems with some commercial van operations that transport passengers for compensation in interstate commerce. Having the FMCSRs apply to these operations should help to reduce the incidence of crashes involving large vans thereby reducing to some extent the number of fatalities and injuries.

Anyone is able to search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

We have determined that this rulemaking action is a significant regulatory action under Executive Order 12866, Regulatory Planning and Review, and significant under Department of Transportation regulatory policies and procedures because of the substantial public interest concerning extending the FMCSRs to a larger population of for-hire motor carriers of passengers. This final rule requires that operators of vehicles designed or used to carry between 9 and 15 passengers (including the driver) for direct compensation, in interstate commerce comply with the following rules when the commercial vehicle is operated beyond a 75 air mile radius (86.3 statute miles or 138.9 kilometers) from the driver's normal work-reporting location: 49 CFR part 391, Qualifications of drivers; 49 CFR part 392, Driving of commercial motor vehicles; 49 CFR part 393, Parts and accessories necessary for safe operation; 49 CFR part 395, Hours of service of drivers; and 49 CFR part 396, Inspection, repair, and maintenance.

Executive Order 12866 requires that regulatory agencies assess both the costs and benefits of intended regulations and proposed regulations. Based upon the information above, the agency anticipates that the economic impact associated with this rulemaking action will be $23,850,000 for the first year, and $20,184,234 for each subsequent year. The benefit of preventing as few as 8 of the 58 fatal accidents in 1998 involving large vans transporting 9 or more passengers at the time of the crash would outweigh the estimated costs. The agency estimates that each fatality prevented would be equivalent to a benefit of $3 million, based on the Department of Transportation's guidance memorandum on “Treatment of Value of Life and Injuries in Preparing Economic Evaluations.” Preventing 8 single-fatality accidents per year would result in at least $24 million in benefits per year. Additional benefits would be achieved through reductions in injuries and property-damage only accidents involving small passenger-carrying CMVs.

For purposes of Executive Order 12866, this rulemaking does not impose an economic burden greater than $100 million on these motor carriers. Therefore, a full Regulatory Impact Statement is not necessary.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), FMCSA considered the effects of this regulatory action on small entities and determined that this final rule will not affect a substantial number of small entities that operate CMVs designed or used to transport between 9 and 15 passengers, for compensation, in interstate commerce. However, the agency believes the rule will have a significant impact on some of the small entities operating such vehicles.

FMCSA is requiring motor carriers that operate CMVs, designed or used to transport between 9 and 15 passengers, in interstate commerce, to be made subject to the safety-related operational FMCSRs when they are directly compensated for such services and the vehicle is operated beyond 75 air miles (86.3 statute miles or 138.9 kilometers) from the driver's normal work-reporting location. These motor carriers will be required to comply with 49 CFR parts 390, 391, 392, 393, 395, and 396. FMCSA estimates that this rule will affect 1,843 of the estimated 14,000 entities that operate CMVs designed or used to transport between 9 and 15 passengers for compensation, and that most, if not all, of these 14,000 businesses are small entities based on criteria established by the Small Business Administration (SBA).2

The estimate of 1,843 is based on the current number of for-hire motor carriers of passengers with active authority that operate only CMVs with a seating capacity of 15 passengers or less. Although the universe of for-hire motor carriers of passengers potentially subject to this rule consists of approximately 14,000 entities, we estimate that the final rule will apply to only the 1,843 carriers whose operations require interstate operating authority under the FMCSA's commercial regulations. Each of these motor carriers has on file with the FMCSA proof of financial responsibility at the minimum level required for the operation of vehicles designed to transport less than 16 passengers. This number may overstate the population of affected carriers since some of the licensed carriers may be exclusively operating equipment carrying less than 9 passengers. However, FMCSA's estimate does not include the following: (1) Motor carriers that may have pending applications for operating authority; (2) passenger carriers shown as inactive because their authority was revoked for failure to maintain evidence of the required minimum levels of financial responsibility; (3) private motor carriers of passengers; or (4) carriers which also operate larger vehicles, as well as smaller vehicles. Therefore, the agency believes its estimate of 1,843 motor carriers of passengers is a reasonable estimate of the number of entities that will be subject to this rule.

This final rule is the last in a series of rulemaking actions intended to improve the safety of operation of vehicles designed or used to transport between 9 and 15 passengers, for compensation, in interstate commerce. After reviewing the public comments received in response to previous rulemaking notices in this series, and completing an analysis of accident data, the agency continues to believe that it is appropriate to limit the applicability of the rule to those motor carriers that are most likely to have safety performance problems. Therefore, this rule involves 1,843 out of the 14,000 small entities that the agency is authorized to regulate under section 212 of MCSIA.

The rulemaking series mentioned above began with the August 5, 1998 (63 FR 41766) ANPRM in which the agency requested public comment from all interested parties concerning the potential impact of amending the definition of “commercial motor vehicle” to make the FMCSRs applicable to the operation of small passenger-carrying CMVs. The agency specifically asked for comments concerning the types and numbers of passenger carriers that would be covered by the safety regulations under the revised definition of CMV provided in section 4008(a) of TEA-21. At that time, we indicated that due to the preliminary nature of the ANPRM and the lack of information about the potential costs of the rulemaking, the agency could not evaluate the potential regulatory changes on small entities. The agency solicited comments, information, and data on these potential impacts on small entities.

On September 3, 1999, the agency published an interim final rule (64 FR 48510) and a NPRM (64 FR 48518) based on the comments received in response to the ANPRM. The agency used the interim final rule to adopt the statutory definition of CMV provided by TEA-21, and temporarily exempt the operation of small passenger-carrying vehicles from all of the FMCSRs pending completion of a companion rulemaking that would help the agency gather additional information about the entities operating vehicles designed or used to transport between 9 and 15 passengers. The exemption was necessary because the agency viewed section 4008(a) of TEA-21 as a mandate either to impose the FMCSRs on previously unregulated smaller capacity vehicles, or to exempt through a rulemaking proceeding some or all of the operators of such vehicles. The statute provided that operators of small passenger-carrying vehicles would automatically become subject to the FMCSRs unless the agency, through a rulemaking proceeding, determines that it is appropriate to exempt such operators from the safety regulations.

While none of the commenters responded to the request for information about potential impacts of the rulemaking on small entities, the TLPA estimated that if the agency made the FMCSRs applicable to the operation of small passenger-carrying vehicles, approximately 14,000 companies, 125,000 vehicles, and 165,000 drivers would be covered. The agency reviewed its database of for-hire interstate motor carriers of passengers to determine whether TLPA's estimate was reasonable. At that time, we indicated there were 1,636 for-hire motor carriers of passengers with active operating authority that had on file with the agency proof of financial responsibility at the minimum level required for the operation of vehicles designed to transport less than 16 passengers. Recognizing that TLPA's estimate included a wide range of passenger-carrying operations that far exceeded the limited number of carriers with active operating authority, the agency stated that it could not confirm the accuracy of the number.

The September 3, 1999 NPRM proposed that each motor carrier operating small passenger-carrying vehicles submit a Motor Carrier Identification Report (FMCSA Form MCS-150), maintain an accident register, and mark their CMVs with the motor carrier identification number assigned by the agency (64 FR 48518). The agency stated that this would provide it with information about the number of passenger carriers, their business locations, and the number of drivers employed and vehicles operated. We believed that the proposal could affect a substantial number of small entities, but would not have a significant impact on them. The agency stated that if the TLPA's estimate of 14,000 interstate motor carriers operating CMVs designed or used to transport 9- to 15- passengers was accurate, and most or all of these businesses are classified as small businesses by SBA, the rulemaking would affect up to 14,000 small entities. The agency provided examples of the potential costs to mark each vehicle, in accordance with 49 CFR 390.21, with a worse case scenario of a one-time cost of $420 for a carrier with a fleet of 20 vehicles.

With the enactment of MCSIA, the agency was required to take a more aggressive regulatory approach and impose safety requirements on: (1) Commercial vans referred to as “camionetas,” and (2) those commercial vans operating in interstate commerce outside of commercial zones that have been determined to pose serious safety risks. Therefore, the agency was required to continue the series of rulemaking actions in the absence of definitive industry characteristic and safety performance data, including data concerning the potential impact on small businesses that would be made subject to the FMCSRs.

On January 11, 2001, FMCSA issued a final rule adopting the statutory definition of CMV as revised by section 4008 of TEA-21, and requiring motor carriers operating small passenger-carrying vehicles to submit the identification report, mark their vehicles, and maintain an accident register (66 FR 2756). On the same day, in response to section 212 of MCSIA, the agency issued an NPRM (66 FR 2767) proposing that motor carriers operating vehicles designed or used to transport between 9 and 15 passengers (including the driver) in interstate commerce comply with the safety regulations when they are directly compensated for such services, and the transportation of any of the passengers covers a distance greater than 75 air miles (86.3 statute miles).

FMCSA indicated that in order to avoid underestimating the potential impact of the rule on small entities, it estimated that 1,648 passenger carriers would be subject to the proposed requirements. This estimate was based on the number of for-hire motor carriers of passengers with active authority to operate CMVs with a seating capacity of 15 passengers or less. The agency argued that using the estimate of 1,648 carriers from the database of motor carriers of passengers provided a reasonable estimate of the number of entities that could be subject to the proposed rules. The agency estimated that the costs per carrier would be $6,200 for the first year the requirements are in effect, and $6,100 per year thereafter, if the costs are distributed evenly among the carriers.

FMCSA estimated that the costs per carrier associated with the NPRM would, on average, be 2.2 percent of their revenues based on data from the SBA's 1997 “Employer Firms, Employment and Estimated Receipts by Employment Size of Firm” tables. The agency reviewed revenues for motor carriers in the intercity and rural bus transportation segment of the industry. The SBA data indicated there are 145 firms in this category with less than 20 employees—the 20-employee threshold was chosen by FMCSA to be consistent with its estimate of the average number of drivers likely to be employed by the 1,648 for-hire passenger carriers. These 145 carriers had combined revenues of $41,793,000. The average revenues were considered by dividing the combined revenues by the total number of firms, or $288,227 in revenues per year for each carrier.

FMCSA made a preliminary determination that the proposed rule would not affect a substantial number of small entities because it would be applicable to only a fraction of the 14,000 entities operating 9- to 15-passenger vehicles for compensation. However, the agency recognized that the NPRM would have a significant impact on some of the small entities, especially in those cases where the profit margins are approximately 2.2 percent or less. The agency indicated that there is a possibility for failure of some small passenger-carrying CMV operations, especially those with profit margins of 2.2 percent or less. Because it was limiting the applicability of the rules to only a fraction of the universe of eligible small entities (thus minimizing the overall impact), and the estimated costs of the rule would be 2.2 percent of the revenues of the affected small entities, the agency did not believe that a more comprehensive analysis was needed to ensure compliance with the Regulatory Flexibility Act. This was particularly in view of the fact that the agency was statutorily required to regulate operators of 9- to 15-passenger vehicles and had exercised its discretion, as limited by MCSIA, to minimize the impact on small entities.

After publication of the January 11, 2001 NPRM, the agency increased its estimate of the potential costs of the rule for small entities based on: (1) A revision of the estimated information collection burden for driver records of duty status; (2) a correction of the estimate of the costs for medical examinations for drivers; and (3) consultation with SBA about the number of small businesses and their revenues.

First, the agency revised the estimated costs associated with the information collection burden for drivers' records of duty status, and submitted the revised estimate to OMB for approval. The agency estimated that the information collection burden for the records of duty status (required by 49 CFR part 395) for the operators of 9- to 15-passenger vehicles would be 137,250 hours, based on an estimated 18,300 drivers being subject to the requirements. Using the new estimates, approved by OMB [OMB Control No. 2126-0001] on information collection burden for the records of duty status, and applying the burden per driver and carrier to the entities that would operate small passenger-carrying CMVs, the agency now believes the additional burden would be 836,000 annual burden hours, for approximately 22,000 drivers. The result of the increased estimate of the annual burden hours for completing and retaining the records of duty status, and an increase in the number of drivers that would be subject to the hours of service rules, is an increase from $2,539 per carrier per year for such records to $7,012 per carrier per year.

FMCSA also revised its estimates of the costs for medical examinations of drivers. The agency's previous calculations included an error resulting in an estimate of $1,718 per carrier per year. A correction of the error, plus a revision of the estimate of the number of drivers yields an estimate of $3,844 per carrier per year for medical examinations.

As indicated earlier, FMCSA estimates that the sum of all estimated costs of requiring operators of small passenger-carrying CMVs to comply with 49 CFR parts 391, 395, and 396 is approximately $23,850,000 for the first year and $20,184,234 per year thereafter. If the costs of the rulemaking are distributed evenly among these 1,843 motor carriers, the costs per carrier would be approximately $12,940 for the first year the requirements are in effect, and a little more than $10,952 per year thereafter.

A summary of the estimated first-year costs per motor carrier is presented below:

The actual costs each individual fleet would experience depend on the number of drivers employed and the number of small passenger-carrying CMVs operated. The above estimates are intended to serve as a baseline of 10 CMVs per fleet and about 11 drivers per business. Driver-related costs, such as driver qualifications and hours-of-service, for each business would decrease or increase as the number of drivers employed decreases below the baseline or increases above the baseline. The same holds true for vehicle-related costs.

In order to better determine the potential impact on small businesses, FMCSA met with representatives of SBA. As a result of that meeting, the FMCSA reviewed the U.S. Department of Commerce's 1997 Economic Census, Transportation and Warehousing (Publication No. EC 97T48S-LS, Issued August 2000) to better determine the revenues of businesses under the NAICS subsector 485, which covers transit and ground transportation, and more accurately assess the number of small entities based on SBA's $6,000,000 threshold for defining a small business in the passenger transportation industry.

For businesses covered by NAICS code 4852, interurban and rural bus transportation, the 1997 census data indicate there are 407 firms with combined revenues of $1,147,432,000. For the purposes of this analysis, the revenues for the businesses in this group were divided by the number of firms resulting in an estimate of $2,819,243 in revenues per year for each carrier [$1,147,432,000/407 firms = $2,819,243].

The agency also considered businesses covered by NAICS code 4853, taxi and limousine service. The 1997 census data indicate there are 6,418 firms with combined revenues of $3,154,521,000. For purposes of this analysis, the revenues for businesses in this group were also divided by the number of firms resulting in an estimate of $491,511 in revenues per year for each carrier [($3,154,521,000/6,418) = $491,511].

Based on the estimates above for the revenues per firm for interurban and rural bus transportation businesses, and revenues per firm for taxi and limousine service businesses, FMCSA believes that most, if not all, of the firms in these categories appear to be small businesses based on SBA's $6,000,000 threshold.

The costs per carrier associated with this rule would, on average, be approximately 0.45 percent of the revenues for interurban and rural bus services [($12,940 costs per carrier)/($2,819,243 revenues per carrier) x 100 = 0.45 percent], and 2.6 percent of the revenues for taxi and limousine services [($12,940 costs per carrier)/$491,511 revenues per carrier) x 100 = 2.6 percent].

For interurban and rural bus services with a profit margin greater than 0.45 percent, the new rule will decrease their profits but the businesses would maintain some level of profit. For bus services with profit margins of 0.45 percent or less, the rule could result in the failure of the business. Likewise, for taxi and limousine services with a profit margin greater than 2.6 percent, the rule would decrease their profits but the businesses would maintain some level of profit. For taxi and limousine businesses with profit margins of 2.6 percent or less, the rule could result in failure of the business.

FMCSA does not have data on the revenues or profit margins of the 1,843 motor carriers likely to be impacted by the rule or more precise information about their revenues. Also, the agency does not have sufficient data about these motor carriers to determine the distribution of drivers and vehicles, such as the number of carriers with 1 to 5 vehicles, the number of carriers with 6 to 10 vehicles, the number of carriers with 11 to 20 vehicles, and similar data for the number of drivers, to make more precise its estimates concerning revenues. However, the agency believes it is appropriate to consider all 1,843 motor carriers of passengers likely to be affected by this rulemaking to be small entities to avoid underestimating the impact this rule will have on them. The agency believes the estimates presented above are reasonable given the limited information available about this segment of the motor carrier industry. Therefore, the agency has made a determination that this rule would not affect a substantial number of small entities. However, it could have a significant impact on some of these 1,843 small entities, especially in those cases where the profit margins are approximately 2.6 percent or less.

FMCSA has considered the comments to the previous rulemaking documents concerning the regulation of small passenger-carrying CMVs, and believes this group of motor carriers provides an important service to its clients. These motor carriers provide services to individuals for whom motor coach services are not available, those who may not be able to afford to use motor coach operators, or individuals who choose, for whatever reason, not to use motor coach operators for their intercity travel. The agency believes the industry is very important to those who rely on it. There is a possibility for failure of some small passenger-carrying CMV operations, especially those with profit margins of 2.6 percent or less. However, the number of failures among the estimated 1,843 motor carriers operating small passenger-carrying CMVs is expected to be small. Therefore, the agency believes there could be a small degree of disruption in the services provided by small passenger-carrying CMV operations that are not capable of putting into place the safety management controls necessary to achieve compliance with 49 CFR parts 390, 391, 392, 393, 395, and 396.

FMCSA has considered other regulatory alternatives as described earlier, and determined that this action is necessary to fulfill section 212 of the MCSIA and respond to the safety problem indicated by the FARS and General Estimates System (GES) data. It is unlikely that a rule establishing less stringent requirements would have the same potential for improving the safety of operations of these CMVs.

Accordingly, FMCSA has considered the economic impacts of the requirements on small entities and certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. FMCSA determined that the requirements in this final rule will impact four currently-approved information collections. FMCSA is requiring that motor carriers operating CMVs designed or used to transport 9- to 15- passengers be required to meet the recordkeeping requirements of 49 CFR parts 391, 395, and 396.

Drivers operating CMVs designed or used to transport between 9 and 15 passengers will be required to meet the medical examination and certification requirements at 49 CFR part 391, subpart E. The information collection requirements related to that subpart have been approved by the OMB under provisions of the PRA and assigned the OMB Control No. 2126-0006, which is currently due to expire on October 31, 2003. FMCSA estimates it takes a medical examiner approximately 20 minutes to complete and document the medical examination and 1 minute to complete the medical certificate, and that it takes a motor carrier approximately 1 minute to make a copy of the medical certificate and file it. Therefore, the total time associated with this information collection, per driver, is 22 minutes. FMCSA estimates that approximately 22,000 drivers will be subject to the final rule. The estimated burden for the first year will be 8,067 burden hours [22,000 drivers × 22 minutes per driver, divided by 60 minutes in an hour]. Since the medical examiner's certificate is usually made valid for 24 months, the prorated annual burden will be approximately half that amount. Therefore, the annual burden hours will be 4,034. FMCSA submitted the amended medical qualification information collection to the OMB for review and approval.

Motor carriers that employ drivers of CMVs designed or used to transport between 9 and 15 passengers will be required to maintain a complete driver qualification file for each driver in accordance with 49 CFR 391.51. The information collection requirements related to driver qualification files have been approved by the OMB under the provisions of the PRA and assigned the OMB Control No. 2126-0004, which is currently due to expire on August 31, 2004. The following components are involved in this information collection: driver's employment application (2 minutes for drivers), review of driver's employment application (1 minute for motor carriers), initial inquiry of driving record and investigation of employment (15 minutes for motor carriers), list or certification of violations (2 minutes for drivers), and annual review of driving record (5 minutes for motor carriers). The burden hour estimate associated with this information collection is 25 minutes per driver, which includes 21 minutes for motor carriers and 4 minutes for drivers. Therefore, FMCSA estimates that the addition of the 22,000 drivers who will be subject to this final rule will increase the burden hours of this information collection by 9,167 [22,000 drivers × 25 minutes, divided by 60 minutes in an hour]. FMCSA submitted the amended driver qualification information collection to OMB for review and approval.

Drivers operating CMVs designed or used to transport between 9 and 15 passengers will be required to record their duty status in accordance with 49 CFR 395.8. The information collection requirements related to records of duty status have been approved by the OMB under the provisions of the PRA and assigned the OMB Control No. 2126-0001, which expires on March 31, 2005. FMCSA estimates the annual burden on each CMV driver to be approximately 26 hours [6 minutes and 30 seconds for each daily log × 240 workdays a year, divided by 60 minutes in an hour]. The total burden for the 22,000 drivers affected by this rule will be 572,000 [22,000 drivers × 26 hours per year]. In addition, each motor carrier affected by this rule will have a supervisor responsible for reviewing its driver records of duty status and that the supervisor will spend approximately 12 hours per year reviewing these records to ensure compliance with the hours-of-service rules [3 minutes per day to review logs × 240 workdays]. The total burden for the supervisors of the 22,000 drivers affected by this rule will be 264,000 [22,000 drivers × 12 hours per year]. Therefore, the total additional burden for OMB Control No. 2126-0001 will be 836,000 annual burden hours [572,000 + 264,000]. FMCSA submitted the amended driver records of duty status information collection to OMB for review and approval.

Motor carriers operating CMVs designed or used to transport between 9 and 15 passengers for direct compensation will be required to maintain records of inspection, repair, and maintenance for their CMVs in accordance with 49 CFR part 396. The information collection requirements related to inspection, repair, and maintenance have been approved by the OMB under the provisions of the PRA and assigned OMB Control No. 2126-0003, which expires on May 31, 2004. FMCSA estimates that it will take a total expenditure of 12 hours and 57 minutes (or 777 minutes) per year per CMV to complete the required recordkeeping related to vehicular inspection, repair, and maintenance (48 minutes per vehicle for systematic inspection, repair, and maintenance; 12 hours and 4 minutes per year per vehicle for driver vehicle inspection reports; and 5 minutes per year per vehicle for periodic inspection).

Evidence of an individual's qualifications to perform periodic vehicle inspections must be retained by the motor carrier. Evidence of an individual's qualifications to be a brake inspector must also be retained. The creation of these two types of qualification evidence involves an estimated one-time, non-recurring expenditure of 5 minutes by a safety director, driver supervisor, or equivalent position for each type of inspector. Based on an estimate of 1,843 motor carriers that will be subject to the rule and on the assumption that each motor carrier has at least (1) one employee who is a qualified periodic vehicle inspector and (2) one employee who is a qualified brake inspector, the estimated total time burden related to the inspector qualifications rules is approximately 307 annual burden hours [(5 minutes for each periodic vehicle inspector certification × 1,843 motor carriers) + (5 minutes for each brake inspector certification × 1,843 motor carriers) = 18,430 minutes, divided by 60 minutes in an hour = 307 hours].

FMCSA estimates that the total inspection, repair, and maintenance recordkeeping burden is approximately 238,976 burden hours per year [18,430 CMVs × 777 minutes (or 12 hours and 57 minutes) per year per CMV, divided by 60 minutes in an hour = 238,669, plus an additional 307 = 238,976]. FMCSA submitted the amended inspection, repair, and maintenance information to OMB for review and approval.

The total estimated additional burden hours imposed by this rule will be 1,088,177 [4,034 (associated with OMB Control No. 2126-0006) + 9,167 (associated with OMB Control No. 2126-0004) + 836,000 (associated with OMB Control No. 2126-0001) + 238,976 (associated with OMB Control No. 2126-0003)]. The following table displays this information:

In the NPRM stage, we requested comments regarding the information collection burden hour estimates. However, no comments were received during the NPRM comment period regarding the estimated information collection burdens.

The agency has analyzed this rulemaking for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has determined that this action does not have any effect on the quality of the environment.

We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not economically significant and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

This final rule does not impose an unfunded mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), that will result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector.

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

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

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

We have analyzed this rule in accordance with the principles and criteria of Executive Order 13132, Federalism. We have determined that this action does not have a substantial direct effect on States or impose additional costs or burdens on the States. Nothing in this document limits the policymaking discretion of the States or directly preempts any State law or regulation. Therefore, we have determined that this final rule does not have federalism implications.

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

For 2003, the chinook salmon PSC limit for the pollock fishery was set at 33,000 fish (68 FR 9907, March 3, 2003). Of that limit, 7.5 percent is allocated to the groundfish CDQ program as prohibited species quota reserve. Consequently, the 2003 non-CDQ limit of chinook salmon caught by vessels using trawl gear while directed fishing for pollock in the BSAI, is 30,525 animals (§ 679.21(e)(1)(i) and (vii)).

In accordance with § 679.21(e)(7)(viii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2003 non-CDQ limit of chinook salmon caught by vessels using trawl gear while directed fishing for pollock in the BSAI has been reached. Consequently, the Regional Administrator is prohibiting directed fishing for non-CDQ pollock with trawl gear in the Chinook Salmon Savings Areas defined at Figure 8 to 50 CFR part 679.

Maximum retainable amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the 2003 non-CDQ limit of chinook salmon caught by vessels using trawl gear while directed fishing for pollock in the BSAI, and therefore reduce the public's ability to use and enjoy the fishery resource.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by 50 CFR 679.21 and is exempt from review under Executive Order 12866.