This proposed rule is issued under Marketing Agreement and Marketing Order No. 945, both as amended (7 CFR part 945), regulating the handling of Irish potatoes grown in certain designated counties in Idaho, and Malheur County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposal will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This proposed rule would relax the minimum size requirement for U.S. No. 2 grade round potatoes handled under the order. The current requirement for U.S. No. 2 grade round varieties, other than red-skinned, is 2 inches minimum diameter or 4 ounces minimum weight, provided that at least 40 percent of the potatoes in each lot shall be 5 ounces or heavier. This rule would establish a minimum size requirement of 1 7/8 inches minimum diameter, as is currently in effect for round red-skinned varieties, for all U.S. No. 2 grade round potatoes.

Sections 945.51 and 945.52 of the order provide authority for the establishment and modification of grade, size, quality, and maturity regulations applicable to the handling of potatoes.

Section 945.341 establishes minimum grade, size, and maturity requirements for potatoes handled subject to the order. Current requirements provide that round red-skinned varieties that grade U.S. No. 2 shall have a minimum diameter of 1 7/8 inches. All other U.S. No. 2 grade potatoes are required to meet a 2 inches minimum diameter or 4 ounce minimum weight requirement, provided that at least 40 percent of the potatoes in each lot shall be 5 ounces or heavier. Section 945.341 also allows potatoes that are U.S. No. 1 grade to meet a less stringent size B requirement (1 1/2 inches minimum and 2 1/4 inches maximum) as specified in the United States Standards for Grades of Potatoes (7 CFR 51.1540-51.1566).

At its meeting on November 4, 2004, the Committee unanimously recommended reducing the minimum size requirement for all varieties of U.S. No. 2 grade round potatoes to 1 7/8 inches minimum diameter.

Committee members stated that round potato production, particularly for non-red varieties, has been increasing in recent years and now makes up a significant percentage of total round potato production. In the past, red-skinned varieties were essentially the only round varieties produced within the production area. Some new round varieties that have been introduced have skin colors such as white, yellow, gold, purple, blue, and pink.

Committee members believe that it is important that the handling regulations be changed to recognize the significant increase in the production of non-red varieties of round potatoes. They believe that relaxing the minimum size requirement for U.S. No. 2 grade round potatoes would enable handlers to market a larger portion of the crop in fresh market outlets and meet the needs of buyers.

According to the Committee, quality assurance is very important to the industry and to its customers. Providing the public with acceptable quality produce that is appealing to the consumer on a consistent basis is necessary to maintain buyer confidence in the marketplace. The Committee reports that potato size is important to buyers and that providing the sizes desired is important to promote sales. Buyers have indicated that the proposed 1 7/8 inches minimum diameter for all varieties of round potatoes is a desirable size.

This proposed change is expected to improve the marketing of Idaho-Eastern Oregon potatoes and increase returns to producers.

This rule would have no impact on potato imports covered by section 608e of the Act.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 52 handlers of Idaho-Eastern Oregon potatoes who are subject to regulation under the order and about 900 potato producers in the regulated area. Small agricultural service firms, which include potato handlers, are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000.

Based on a three-year average fresh potato production of 33,767,000 hundredweight as calculated from Committee records, a three-year average of producer prices of $5.18 per hundredweight reported by the National Agricultural Statistics Service, and 900 Idaho-Eastern Oregon potato producers, the average annual producer revenue is approximately $194,349. It can be concluded, therefore, that a majority of these producers would be classified as small entities.

In addition, based on Committee records and 2003-04 f.o.b. shipping point prices ranging from $4.00 to $28.00 per hundredweight reported by USDA's Market News Service, most of the Idaho-Eastern Oregon potato handlers do not ship over $5,000,000 worth of potatoes. In view of the foregoing, it can be concluded that a majority of the handlers would be classified as small entities as defined by the SBA.

This proposed rule would establish a minimum size requirement of 1 7/8 inches minimum diameter, as is currently in effect for round red-skinned varieties, for all U.S. No. 2 grade round potatoes. The current size requirement for U.S. No. 2 grade round varieties, other than red, is 2 inches minimum diameter or 4 ounces minimum weight provided that at least 40 percent of the potatoes in each lot shall be 5 ounces or heavier.

Committee members believe that it is important that the handling regulations be changed to recognize the significant increase in the production of non-red varieties of round potatoes. They believe that relaxing the minimum size requirement for U.S. No. 2 grade round potatoes would enable handlers to market a larger portion of the crop in fresh market outlets and meet the needs of buyers. Buyers have indicated that the proposed 1 7/8 inches minimum diameter is a desirable size. This proposed change is expected to improve the marketing of Idaho-Eastern Oregon potatoes and increase returns to producers.

Authority for this proposed rule is provided in §§ 945.51 and 945.52 of the order.

At the November 4 meeting, the Committee discussed the impact of this change on handlers and producers. The proposal is a relaxation of current regulation and, as such, should either generate a positive impact or no impact on industry participants. The Committee did not foresee a situation in which this proposed change would negatively impact either handlers or producers.

Round type potatoes are produced and handled by only a small percentage of the industry. The predominant producing regions are centered around the American Falls, Idaho Falls, and Blackfoot areas of Idaho. Acreage is approximately 6,000 to 7,000 acres, which represents only about 2 percent of the production area's 355,000 acres planted to potatoes in 2004.

Round potato production is increasing within the production area. Shipments for the 2003-2004 season were approximately 300,000 hundredweight. The Committee estimates that round potato shipments for the 2004-2005 crop season could approach 800,000 hundredweight. The Committee reported that one round yellow-skinned variety might account for 500,000 hundredweight. Through week seventeen of the 2004-2005 season, reported shipments of round potatoes are up 54 percent from the prior year.

The Committee reported that smaller size round potatoes of good quality receive premium prices. This contention is consistent with USDA Market News Service reports. Market News does not report on round type potatoes in the Idaho-E. Oregon area, but does report on other round potato producing regions. It would be reasonable to expect price trends between production areas to move together, given that the regions would compete with each other for sales in the domestic market.

Relaxing the size requirement would allow producers and handlers of non-red U.S. No. 2 grade round potatoes to market a greater percentage of their crop under the order. This should lead to increased total net returns for those firms. The benefits derived from this rule change are not expected to be disproportionately greater or less for small handlers or producers than for larger entities.

The Committee discussed alternatives to this proposed change. One alternative included making no change at all to the current regulation. The Committee did not believe this alternative would meet the needs of buyers or benefit the industry. Another alternative discussed was to allow round potatoes to be exempted from regulations under Certificate of Privilege provisions provided within the order. This option also was rejected because it would allow lower quality potatoes to be shipped to the fresh market. Lastly, the Committee considered further relaxing the size requirement for all round potatoes below the 1 7/8 inches minimum diameter. The Committee believed that relaxing the minimum size requirement for U.S. No. 2 round potatoes below 1 7/8 inches would result in buyer dissatisfaction. Producers and handlers who wish to ship smaller round potatoes may do so by conforming to the U.S. No. 1 grade standard.

With only a small amount of the total potato crop in the production area expected to be affected by relaxing the size requirement, the Committee believes that the proposed change to relax the size requirement of non-red-skinned U.S. No. 2 round potatoes to a 1 7/8 inches minimum diameter would provide the greatest amount of benefit to the industry with the least amount of cost.

This proposed rule would relax the size requirements under the marketing order. Accordingly, this action would not impose any additional reporting or recordkeeping requirements on either small or large potato handlers and importers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule. However, as previously stated, potatoes handled under the order have to meet certain requirements set forth in the United States Standards for Potatoes (7 CFR 51.1540-51.1566) issued under the Agricultural Marketing Act of 1946 (7 CFR part 1621, et seq. ). Standards issued under the Agricultural Marketing Act of 1946 are otherwise voluntary.

Further, the Committee's meeting was widely publicized throughout the potato industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the November 4, 2004, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following Web site: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

For the reasons set forth above, 7 CFR part 945 is proposed to be amended as follows:

This proposal is issued under Marketing Agreement and Order No. 987, both as amended (7 CFR part 987), regulating the handling of domestic dates produced or packed in Riverside County, California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposal will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This proposal invites comments on changes to the requirements to be an approved manufacturer of date products in § 987.157 of the date administrative rules and regulations. This rule would clarify the application procedures and qualifications for a manufacturer to continue to be listed as an approved manufacturer of date products. This proposal would also require an applicant who is a date handler under the order to be in compliance with the order. These changes would help safeguard the integrity of the approved manufacturer program under the order and the quality of whole and pitted dates that are shipped within the United States and to Canada. This proposed rule was recommended unanimously by the committee in a meeting on April 23, 2004.

Section 987.57 of the date order provides authority for qualification requirements to be an approved manufacturer of date products. Section 987.57 states in part: “Diversion of dates pursuant to § 987.55 or § 987.56 shall be accomplished only by such persons (which may include handlers) as are approved manufacturers or feeders * * *. The application and approval shall be in accordance with such rules, regulations and safeguards as may be prescribed pursuant to § 987.59.” Section 987.59 states: “The Committee may prescribe, with the approval of the Secretary, such rules, regulations and safeguards as are necessary to prevent dates covered by §§ 987.55 and 987.56 from interfering with the objectives of this part.”

Pursuant to the authority in §§ 987.57 and 987.59 of the order, § 987.157 of the order's administrative rules and regulations prescribes the qualification requirements to become an approved manufacturer of date products.

At its public meeting on April 23, 2004, the committee unanimously recommended modifying the qualification requirements for approved manufacturers of date products. The committee's approved product manufacturer program helps assure that higher quality whole and pitted dates are shipped within the United States and to Canada. Whole and pitted dates shipped within the United States and to Canada must, at least, meet the requirements of U.S. Grade B. Dates used for date products are permitted to be U.S. Grade C, a lower quality.

Only firms on the committee's list of approved date product manufacturers are allowed to receive dates for conversion into products. These entities, among other things, agree to alter the form and appearance of the lower quality dates so the dates cannot be marketed in competition with higher quality whole and pitted dates in the United States and to Canada.

The committee recommended that the application procedures for an entity to qualify to become, and to continue to be, an approved manufacturer of date products be revised to help assure that each applicant is treated similarly and to ensure that an approved product manufacturer remains qualified to receive dates for conversion into products.

Within the regulated area (Riverside County, California), all approved manufacturers are also date handlers regulated under the order. Outside the regulated area, the approved manufacturers are not regulated date handlers.

Finally, the committee wants to safeguard the integrity of the approved manufacturer program by requiring handlers regulated under the order, who are applying to be approved date product manufacturers, to be in compliance with the requirements of the order, including the payment of assessments and filing required reports. Once approved, handlers would have to continue to be in compliance with the order to remain on the committee's approved date product manufacturers' list.

Prior to revoking a handler's approved manufacturer status for non-compliance with the requirements of the order, including reporting and assessment payment requirements, the committee staff would consult with USDA. If, after consultation with USDA and appropriate communications, the approved product manufacturer continues to be non-compliant with the order requirements, the committee staff would announce the revocation of such handler's approved manufacturer status by mailing or faxing a revised approved manufacturer list to all date handlers in the regulated area. Initial applicants who are handlers under the order would also have to be in compliance with the order and meet the other qualification requirements to become an approved date product manufacturer.

Further, the approved manufacturers would continue to be required to maintain accurate date product information and provide this to the committee staff to enable the committee to update each approved date product manufacturer's status periodically. To ensure that each approved manufacturer is qualified, the approved date product manufacturers would be required to reapply for approved manufacturer status once a year. The procedures for reapplication would be the same as to become a new approved date product manufacturer.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 124 date producers in the regulated area and approximately 10 handlers of California dates subject to regulation under the marketing order. The Small Business Administration (13 CFR 121.201) defines small agricultural service firms as those having annual receipts of less than $5,000,000, and defines small agricultural producers as those having annual receipts of less than $750,000.

An industry profile shows that 4 out of 10 handlers (40 percent) shipped over $5,000,000 worth of California dates and could be considered large handlers by the Small Business Administration. Six of the 10 handlers (60 percent) shipped under $5,000,000 worth of California dates and could be considered small handlers.

An estimated 7 producers, or less than 6 percent, of the 124 total producers, would be considered large producers with annual incomes over $750,000. The majority of handlers and producers of California dates may, thus, be classified as small entities.

Within the regulated area (Riverside County, California), all approved manufacturers are also date handlers regulated under the order. Outside the regulated area, the approved manufacturers are not regulated date handlers. Currently, there are three approved manufacturers outside the regulated area. We do not have information on the size of these entities, but believe most of them are small entities.

This proposal invites comments on changes to the requirements to be an approved manufacturer of date products in § 987.157 of the date administrative rules and regulations. This rule would clarify the application procedures and qualifications for a manufacturer to continue to be listed as an approved manufacturer of date products. This proposal would also require an applicant who is a date handler under the order to be in compliance with the order. These changes would help safeguard the integrity of the approved manufacturer program under the order and the quality of whole and pitted dates that are shipped within the United States and to Canada. This proposed rule was recommended unanimously by the committee in a meeting on April 23, 2004.

At the meeting, the committee discussed the impact of this change on handlers and approved manufacturers. The proposed rule would clarify the application procedures and qualifications for a product manufacturer to be an approved manufacturer of date products under the order. These changes will help assure that each applicant to be an approved date manufacturer is treated equitably. These changes would also clarify the qualifications each applicant must meet to become, and to continue as, an approved manufacturer.

In addition, the committee wants to safeguard the integrity of the approved manufacturer program by requiring a handler under the order who is applying for an approved date product manufacturer status to be in compliance with the order. The benefits of this rule are not expected to be disproportionately greater or less for small handlers or approved manufacturers than for large entities.

The committee discussed alternatives to this change, including not making a change to requirements to become an approved date product manufacturer. The committee decided that this would likely lessen the effectiveness of safeguards ensuring the quality of whole and pitted dates that are shipped within the United States and to Canada.

A second alternative would be to require an applicant to pay all the costs for repeated inspections to verify that the applicant can, indeed, meet the requirements of an approved manufacturer. There was some discussion about whether the committee should continue to pay for the committee staff's time for verification inspections beyond the initial visit. However, there is no authority to charge applicants for verification inspections under this program.

This proposed rule would clarify the application procedures and qualification requirements to become or maintain an approved manufacturer status of date products under the date marketing order. Accordingly, this action would not impose any additional reporting or recordkeeping requirements on either small or large date handlers. This information collection burden has been approved by the Office of Management and Budget (OMB) under OMB No. 0581-0178. This is the Vegetable and Specialty Crop Generic information collection package. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

In addition, the committee's meeting was widely publicized throughout the date industry and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues. Like all committee meetings, the April 23, 2004 meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 10-day comment period is provided to allow interested persons to respond to this proposal. Ten days is deemed appropriate because date handlers are now handling 2004 new crop dates and any changes resulting from this proposed rule should be in place as soon as possible. All written comments timely received will be considered before a final determination is made on this matter.

For the reasons set forth in the preamble, 7 CFR part 987 is proposed to be amended as follows:

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2005-20111; Directorate Identifier 2004-NM-154-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http:// dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received a report indicating that a cockpit ventilation and avionics cooling system blower motor seized up and gave off smoke on a Raytheon Hawker Model 125-800 airplane. Investigation revealed inadequate short circuit protection on the blower motor electrical circuit. This condition, if not corrected, could result in smoke and fumes in the cockpit in the event that a blower motor seizes and overheats due to excessive current draw.

We have reviewed Raytheon Service Bulletin SB 24-3272, Revision 1, dated October 2000. The service bulletin describes procedures for inspecting to determine the current rating of the circuit breakers of certain cockpit ventilation and avionics cooling system blowers; and for replacing the circuit breakers and modifying the blower wiring, if applicable. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and the Service Information.”

Although the service bulletin specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions according to a method approved by the FAA.

There are about 350 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 250 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-20110; Directorate Identifier 2004-NM-114-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received a report indicating that water had accumulated in the cavities of the engine strut aft fairings on several Boeing Model 737-700 series airplanes. Build up of debris in the sump area of the cavity of the aft fairing had blocked the drain, which caused approximately 12 inches of water to accumulate. Debris and water had entered through gaps between the engine strut fairing and the thrust reverser skirt fairing at the wing interface blade seal. A drain blocked by debris in combination with flammable fluid lines, which pass through the engine strut aft fairing and occasionally leak, could cause a hazardous amount of flammable fluid to build up in the cavity of the aft fairing. This condition, if not corrected, could result in the ignition of the flammable fluid by the exhaust nozzle located below the engine strut and consequent explosion or uncontrolled fire.

The aft fairing of the engine strut on certain Boeing Model 737-600, -700C, -800, and -900 series airplanes are identical to those on the affected Model 737-700 series airplanes. Therefore, all of these models may be subject to the same unsafe condition.

We have reviewed Boeing Special Attention Service Bulletin 737-54-1041, dated January 22, 2004. The service bulletin describes procedures for repetitive general visual inspections for dirt, debris, and drain blockage and cleaning of the aft fairing cavities of the left and right engine struts; and modification of the aft fairings of the left and right engine struts, which eliminates the need for repetitive general visual inspections. Modification involves installing new, improved seals on the inboard and outboard sides of the aft fairings of the left and right engine struts. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require repetitive general visual inspections for dirt, debris, and drain blockage and cleaning of the aft fairing cavities of the left and right engine struts; and modification of the aft fairings of the left and right engine struts, which would terminate the repetitive general visual inspections. Modification involves installing new, improved seals on the inboard and outboard sides of the aft fairings of the left and right engine struts. The proposed AD would require you to use the service information described previously to perform these actions, except as discussed under “Differences Between the Proposed AD and Service Bulletin.”

Boeing Special Attention Service Bulletin 737-54-1041, dated January 22, 2004, specifies that operators may accomplish the general visual inspection and cleaning of the aft fairing cavities in accordance with either the Boeing 737-600/700/800/900 Airplane Maintenance Manual (AMM) or an “approved equivalent procedure.” However, this proposed AD would require operators to accomplish the actions in accordance with the procedures specified in Chapter 54-55-02 of the Boeing 737-600/700/800/900 AMM. An “approved equivalent procedure” may be used only if approved as an alternative method of compliance in accordance with paragraph (j) of this AD.

The proposed AD would require inspecting and cleaning the drain system of an aft fairing after the modifications required by paragraph (i) of this AD. We have determined that modification alone would not eliminate the build up of debris and flammable fluids in the cavity of the aft fairing since the most previous inspection. Therefore, operators must inspect and clean the aft fairings when the modification is done.

This proposed AD would affect about 1,406 airplanes worldwide. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Section 105(e) of the Federal Alcohol Administration Act (the FAA Act, 27 U.S.C. 201 et seq. ) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity and prohibits the use of misleading information on those labels. The FAA Act also authorizes the Secretary of the Treasury to issue regulations to carry out its provisions. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers these regulations.

Part 4 of TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographic features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, elevation, physical features, and soils, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

TTB has received a petition requesting establishment of a new viticultural area in south-central Washington State to be called “Horse Heaven Hills.” Paul D. Lucas filed the petition on behalf of wine grape growers within the proposed area.

The proposed Horse Heaven Hills viticultural area covers portions of Klickitat, Yakima, and Benton counties north and west of the Columbia River and south of the Yakima Valley. The proposed area is about 115 miles east of Vancouver, Washington, and just south of Kennewick, Benton City, and Prosser, Washington. Running west from near the point where the Oregon—Washington State line leaves the Columbia River, the proposed area is about 60 miles long and 22 miles wide.

The proposed area lies southeast of the established Yakima Valley viticultural area (27 CFR 9.69) and south of the smaller Red Mountain viticultural area (27 CFR 9.167). Like the Yakima Valley and Red Mountain areas, the proposed Horse Heaven Hills area is entirely within the larger, existing Columbia Valley viticultural area (27 CFR 9.74). The Walla Walla Valley viticultural area (27 CFR 9.91) lies about 30 miles east of the proposed area, on the opposite side of the Columbia River.

According to the petition, the Horse Heaven Hills are a series of south-facing slopes, which have the geographical characteristics of a watershed, with dozens of drainages running in a spoke pattern from the proposed area's north to its south along the Columbia River. The petitioner also states that the Horse Heaven Hills are unique due to the strong wind that blows through the Columbia River Valley, directly affecting the viticultural features of the region. The proposed Horse Heaven Hills viticultural area covers a total of 570,000 acres of open, dry plains and hills, of which 90 percent could be planted to wine grapes, according to the petitioner, if adequate irrigation were available.

According to the petition, growers have been raising grapes in the Horse Heaven Hills since 1972, when Don Mercer planted a 5-acre parcel of Cabernet Sauvignon at Phinny Hill, Washington. Between 1978 and 1981, Stimson Lane planted 2,000 acres in Paterson, Washington, including Merlot, Cabernet Sauvignon, Gewurztraminer, Riesling, Sauvignon Blanc, and Grenache grapes. The first commercial wines from the proposed Horse Heaven Hills area were Mercer Ranch Vineyards' Cabernet Sauvignon, and St. Michelle's Gewurztraminer, Grenache Rose, and Cabernet Sauvignon, which were all produced in the mid 1980s.

Significant plantings continued in the Horse Heaven Hills throughout the mid 1980s and the early 1990s, according to the petition. Plantings greatly accelerated after the vineyards in the Horse Heaven Hills survived the hard freeze of 1996, which destroyed much of Washington State's grape crop. Some of the more recent plantings are Alder Ridge Vineyard, Aldercreek Vineyards, Elerding Vineyard, and Minerva Vineyards. As of 2002, the petition notes, there are at least 20 vineyards, with over 6,040 acres planted, plus four commercial wineries within the proposed area.

The petitioner states that the range of hills in south-central Washington in which the proposed viticultural area is located has been continuously referred to as the Horse Heaven Hills since 1857. Before that time Native Americans called the area Wehopepum, while the early settlers referred to it as Klickitat Prairie or Bedrock Springs Country. The petition notes that the hills' name is widely used and has survived attempts to officially change it to Benton Slope or Columbia Plains.

According to the books “Benton County Place Names” and “Prosser—The Home County,” James Kinney, a cattleman who was camping one night near Kiona, Washington, gave the hills their current name. Kinney awoke to find that his animals had wandered up a mountainside and into an upland plain where they were dining on succulent bunch grass. According to the books, he commented to himself, “Surely this is Horse Heaven.”

According to an untitled history of the region provided by the petitioner, the first official use of the name Horse Heaven in conjunction with this area dates to 1884 with the founding of the Horse Heaven School. This history also notes that the Horse Heaven Cemetery started in the garden of William Dennis, a local resident killed in a harvest accident in 1892. In addition, the petition notes that local newspapers such as the Prosser Falls American (circa 1893) often referenced the Horse Heaven Hills name, as did books written about the area such as “Against Odds, A Personal Narrative of Life in Horse Heaven” (K. Elizabeth Sihler, Concordia Publishing House, St. Louis, Missouri, 1917). More recently, the Yakima-Herald published an on-line wine article in 2001 that mentions the Horse Heaven Ranch.

The American Automobile Association map for the States of Oregon and Washington, published February 2003, identifies the area as “Horse Heaven Hills.” The United States Geological Survey (USGS) and other official State maps and atlases, the petition also notes, consistently refer to this geologic formation as the “Horse Heaven Hills.”

The petitioner states that the proposed Horse Heaven Hills viticultural area boundary is based on the area's topography and a combination of climate, terrain, and soil factors that differentiate the Horse Heaven Hills from surrounding geographic regions and the viticultural areas of Yakima Valley, Walla Walla Valley, Red Mountain, and Columbia Valley.

The petitioner's proposed boundary follows the northern bank of the Columbia River west from the Interstate 82 bridge (near Umatilla, Oregon) to Pine Creek in Klickitat County. The boundary follows Pine Creek north to the 1,700-foot contour line, and then goes northeast to the ridge that separates the Horse Heaven Hills from the much lower Yakima Valley. The proposed boundary then generally follows that ridge northeasterly and then southeasterly, returning to the Columbia River's northern bank, to form the proposed area's northern and eastern sides.

The petitioner states that the proposed Horse Heaven Hills viticultural area is a unique grape-growing region distinguished from the nearby, established viticultural areas of Yakima Valley, Red Mountain, and Walla Walla Valley, and from the larger, surrounding Columbia Valley viticultural area. In addition to the proposed area's topography, wind, annual heat units accumulation, precipitation, and soils also differentiate it from the surrounding viticultural areas, according to the petition.

The proposed Horse Heaven Hills viticultural area is located in south-central Washington State, east of the Cascade Mountain Range and north and west of the Columbia River, which bisects part of the State. The 570,000 acres contained in the proposed viticultural area are generally south-sloping, open desert plains with the geographical characteristics of a watershed as dozens of drainages run north to south through the area in a wheel spoke pattern. Elevations range from 1,800 feet at the area's northern boundary to 200 feet at its southern boundary along Columbia River.

To the north and east, the Yakima Valley borders the proposed viticultural area. The crest of the Horse Heaven Hills and the steep slope and cliffs of the Yakima Valley form a natural boundary between the two regions. Only three Washington State Department of Transportation-maintained passes exist between the Horse Heaven Hills and the Yakima Valley, the petition notes. Extreme terrain and south- and southeast-facing slopes mark the area's western border. The 1,700-foot elevation line creates a border that follows the drainages in a south-southwest line to Pine Creek and down to the Columbia River. The southern border is the Washington State shoreline of the Columbia River.

Perhaps the most unique feature of the proposed Horse Heaven Hills viticultural area, according to the petition, is the amount of strong wind the area receives. Because of the area's proximity to the Columbia River, and because the Columbia Gorge acts as a funnel, the Horse Heaven Hills area receives significantly more wind than surrounding areas.

In “The Columbia Gorge Wind Funnel,” an article in the July 2003 issue of Weatherwise magazine (pages 104 through 107), Howard E. Graham of the National Weather Service's Portland, Oregon, office explains that the wind patterns through the Columbia Gorge are a function of the pressure differences between the west and east ends of this 120-mile long canyon. The Gorge surrounds the Columbia River between Bridal Veil to the west, and Arlington to the east. The article emphasizes that the rarely calm winds always flow along the axis of the Gorge. The Pacific winds from the west bring moderating, mild maritime air into the Gorge. Conversely, the continental high winds from the east bring dry air that is seasonably hot or cold. The heat of the Columbia Basin, according to the petitioner, draws these intense winds north over Horse Heaven Hills after they exit the Columbia Gorge.

The proposed Horse Heaven Hills viticultural area records an average of 30 percent more annual Wind Run Miles (a unit of measurement for the force and speed of wind in one hour), the petition states, than the Walla Walla viticultural area to the east and the Yakima Valley viticultural area to the north. It has 20 percent more Wind Run Miles than the Red Mountain viticultural area, which is to the proposed area's immediate north. Annual Wind Run Miles (WRMs) within the proposed Horse Heaven Hills average 46,200. By comparison, the Walla Walla and Yakima Valley average 32,800 WRMs, while the Red Mountain area averages 36,700 WRMs annually.

The wind's effect on viticulture is especially noted during the grapevines' bud-break to fruit-set period, according to a 1982 article, “Influence of Windbreaks and Climatic Region on Diurnal Fluctuation of Leaf Water Potential, Stomatal Conductance, and Leaf Temperature of Grapevines,” by Freeman, Kliewer, and Stern in the American Journal of Enological Viticulture, vol. 33:233-236. The most-often observed consequences of the higher winds within the proposed Horse Heaven Hills viticultural area are a reduction in canopy size and density of grapes on the vines, and a reduction in vine disease, a result of the drying of wet plant surfaces on which fungal spores or bacteria may have landed. The petitioner contends that the amount of wind is a key factor in determining the amount of irrigation needed to allow the vines to grow without causing harm to the plants.

According to the petition, the proposed Horse Heaven Hills viticultural area is one of the warmest growing regions within the Columbia Valley region of Washington State. This is significant, the petitioner states, because of the dramatic impact a warm growing season has on harvest date and fruit quality. The petition notes that harvest time in the Horse Heaven Hills may start up to two weeks before the harvest in the Yakima Valley, 40 miles to the northwest. Further, the petitioner states, the growing season in the Horse Heaven Hills allows growers to ensure full maturity in mid- to late-season grape varieties while receiving the benefit of extended time on the vine. The length of the growing season produces unique fruit characteristics, the petition notes, resulting in many “single vineyard” designated wines. It also decreases the risk of fall frost and harvest time disease.

The proposed Horse Heaven Hills viticultural area, according to the petition, accumulates on average 10 percent more Annual Heat Units (an index calculating the sum of the average daily temperatures above a threshold of 50 degrees F during the growing season) than the Yakima Valley and 5 percent more than Chelan, Washington, 120 miles to the north. The petition added that heat accumulation in the Horse Heaven Hills area is comparable to the Walla Walla Valley viticultural area but 10 percent less than the Red Mountain area to its immediate north. For example, the petition states that over the past ten years the Horse Heaven Hills area averaged an Annual Heat Unit accumulation of 2,801. By contrast, the areas surrounding Horse Heaven Hills had the following annual averages: Yakima Valley—2,568; Chelan—2,676; Red Mountain—3,016; and Walla Walla—2,821.

The petitioner states that central and eastern Washington State receives most of its annual rainfall in the winter months when grapevines are dormant. As a result, all grape-growing areas in this region require supplemental irrigation. However, the petition notes, the low amount of precipitation received during the growing season reduces the risk of harmful diseases that may occur in the vineyard. Further, the petitioner asserts that the low amount of water the grapevines in the Horse Heaven Hills area receive prevents excessive vine canopy growth, which may lead to grapes with vegetative flavors, excessive acidity, reduced color, and large berry size.

The petition states that the proposed Horse Heaven Hills area receives significantly less rainfall than the Walla Walla Valley area to the east (about 45 percent less on average), and 30 percent less than Chelan, Washington, to the north. Annual rainfall within the proposed Horse Heaven Hills viticultural area averages 9 inches. By comparison, Walla Walla and Chelan average 19.7 and 13.2 inches of annual rainfall, respectively. The Yakima Valley averages 7.8 inches of annual rainfall.

According to Alan Busacca of the Department of Crop and Soil Sciences, Washington State University, three dominant parent materials formed the soils in the proposed Horse Heaven Hills viticultural area: (1) Eolian sand and silt (wind blown dunes and loess); (2) sediments from giant glacial outburst floods, including gravelly alluvium and stratified fine sands and silts (slackwater sediments); and (3) hill slope rubble from the Columbia River Basalt bedrock. The soils of each State of Washington viticultural area are distinct, with variations in the proportion and distribution of the three parent materials noted above, according to Larry Meinert, Professor of Geology, Washington State University. The proposed Horse Heaven Hills viticultural area is farther south or west than the surrounding grape-growing areas (Walla Walla Valley, Yakima Valley, and Red Mountain), and given the westerly wind transport predominant in the area, as well as the direction of glacial floods, the grain size distribution of the soils in Horse Heaven Hills is different from that in the surrounding viticultural areas, according to the petitioner.

The area's low annual precipitation and its hot summers weather the parent materials and soils. The soils found in the proposed viticultural area are mainly classified as Aridisols (desert soils) and Mollisols (prairie soils), which are formed from various combinations of the three parent materials, according to the Soil Survey Staff in “Soil Taxonomy, A Basic System of Soil Classification for Making and Interpreting Soil Surveys,” (Second Edition, 1999, U.S.D.A. Natural Resources Conservation Service).

See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.

The petitioner provided the required maps, and we list them below in the proposed regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we establish this proposed viticultural area, its name, “Horse Heaven Hills,” will be recognized as a name of viticultural significance. In addition, with the establishment of the Horse Heaven Hills viticultural area, the name “Horse Heaven” standing alone will be considered a term of viticultural significance because consumers and vintners could reasonably attribute the quality, reputation, or other characteristic of wine made from grapes grown in the proposed Horse Heaven Hills viticultural area to the name Horse Heaven itself.

The name evidence provided by the petitioner shows that the names “Horse Heaven Hills” and “Horse Heaven” are often used interchangeably, and that the name “Horse Heaven” applies to places within the proposed area's boundary. We note in this regard that information contained in the Geographic Names Information System maintained by the U.S. Geological Survey, and a general search of relevant Internet websites, indicate that the name “Horse Heaven” is used for a populated place, a school, a cemetery, a ranch, a vineyard, an equine art gallery, an inn, and other places and businesses within or near the proposed viticultural area in south-central Washington State. See 27 CFR 4.39(i)(3), which also provides that a name has viticultural significance when determined by a TTB officer. Therefore, the proposed part 9 regulatory text set forth in this document specifies both “Horse Heaven Hills” and “Horse Heaven” as terms of viticultural significance for purposes of part 4 of the TTB regulations.

If the proposed regulatory text is adopted as a final rule, wine bottlers using “Horse Heaven Hills” or “Horse Heaven” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's full name or “Horse Heaven” as an appellation of origin.

For a wine to be eligible to use as an appellation of origin a viticultural area name or other term specified as being viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the grapes used to make the wine must have been grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use as an appellation of origin a viticultural area name or other viticulturally significant term that appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other viticulturally significant term appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a new label or a previously approved label uses the name “Horse Heaven Hills” or “Horse Heaven” for a wine that does not meet the 85 percent standard, the new label will not be approved, and the previously approved label will be subject to revocation, upon the effective date of the approval of the Horse Heaven Hills viticultural area.

Different rules apply if a wine has a brand name containing a viticultural area name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We invite comments from interested members of the public on whether we should establish the proposed viticultural area. We are also interested in receiving comments on the sufficiency and accuracy of the name, boundary, climactic, and other required information submitted in support of the petition. In addition, we are interested in receiving comments on the proposal to identify “Horse Heaven” as a term of viticultural significance. Please provide any available specific information in support of your comments.

Because of the potential impact of the establishment of the proposed Horse Heaven Hills viticultural area on brand labels that include the words “Horse Heaven Hills” or the words “Horse Heaven” as discussed above under “Impact on Current Wine Labels,” we are particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. We are also interested in receiving suggestions for ways to avoid conflicts, for example by adopting a modified or different name for the viticultural area.

Please submit your comments by the closing date shown above in this notice. Your comments must include this notice number and your name and mailing address. Your comments must be legible and written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals. You may submit comments in any of five ways.

• By mail: You may send written comments to TTB at the address listed in the ADDRESSES section.

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

(1) Be on 8 1/2 by 11-inch paper,

(2) Contain a legible, written signature; and

(3) Be five or less pages long. This limitation assures electronic access to our equipment. We will not accept faxed comments that exceed five pages.

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

(1) Contain e-mail address;

(2) Reference this notice number on the subject line; and

(3) Be legible when printed on 8 1/2 x 11-inch size paper.

• By Online Form: We provide a comment form with the online copy of this notice on our Web site at http://www.ttb.gov/alcohol/rules/index.htm . Select “Send comments via e-mail” under this notice number.

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

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

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

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

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

We certify that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866 (58 FR 51735). Therefore, it requires no regulatory assessment.

The principal author of this document is N.A. Sutton, Regulations and Procedures Division, Alcohol and Tobacco Tax and Trade Bureau.

For the reasons discussed in the preamble, we propose to amend title 27, chapter 1, part 9, Code of Federal Regulations, as follows:

Section 105(e) of the Federal Alcohol Administration Act (the FAA Act, 27 U.S.C. 201 et seq. ) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity and prohibits the use of misleading information on those labels. The FAA Act also authorizes the Secretary of the Treasury to issue regulations to carry out its provisions. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers these regulations.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, elevation, physical features, and soils, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

TTB has received a petition from Kevin Robinson of Brassfield Estate Winery proposing a new viticultural area to be called “High Valley” in Lake County, California. Located about 85 miles north of San Francisco, the proposed 14,000-acre viticultural area, with approximately 1,000 acres planted to vines, sits above the eastern shore of Clear Lake, near the town of Clearlake Oaks.

The proposed High Valley viticultural area's boundary encompasses the largely enclosed, elongated bowl-shaped High Valley basin and the surrounding mountain ridges. The proposed area measures about 8.5 miles east-to-west and 3 miles north-to-south, with elevations between 1,600 and approximately 3,000 feet.

The proposed High Valley viticultural area is largely within the established Clear Lake viticultural area (27 CFR 9.99) in Lake County. The Clear Lake area is, in turn, entirely within the multi-county North Coast (27 CFR 9.30) viticultural area. To encompass the mountain ridges surrounding the High Valley, a small east-northeast portion of the proposed High Valley viticultural area extends beyond the Clear Lake and North Coast areas' common eastern boundaries.

Below, we summarize the evidence presented in the petition.

The “High Valley,” “High Valley Road,” and “High Valley Ridge” names all appear on the Clearlake Oaks, California USGS Quadrangle map, and on the California State Automobile Association's “Mendocino and Sonoma Coast Region” February 1999 map. The 2002 “SBC Pacific Bell Directory” lists three local businesses that incorporate “High Valley” into their name. The petition states that the “High Valley” name is the popular and historic reference used to identify the region. The petition's reference section lists Tom Butler's 1960 manuscript, “High Valley Memories,” which is on file at the Lake County Historical Courthouse Museum.

The proposed High Valley area's boundary line encompasses a 1,600-foot minimum elevation, according to the USGS maps, delineating the proposed area from adjacent lower areas. The following table includes information from the USGS maps, and provides a summary of geographical points found in the lower elevations surrounding the proposed viticultural area.

The petition explains that the alpine ridges of High Valley create a mountainside grape-growing environment not found beyond the proposed boundaries. The majority of the proposed area's vineyards are planted primarily on these highland slopes, with the remainder on the western valley floor.

According to the petition, early viticultural efforts in the High Valley area ceased with Prohibition, and walnuts, prunes, green beans, and other crops became the area's popular agricultural commodities. The petition states that approximately 25 very old “centennial vines” (possibly zinfandel) still exist on the southeast ridge above the valley floor.

The High Valley basin sits between 1,700 and 1,800 feet in elevation, as shown on USGS maps. To the north, the High Valley Ridge rises to over 3,000 feet in elevation, while the east, south, and west ridges surrounding the valley average between 2,200 and 2,400 feet in height. According to the USGS maps, the lowest elevation within the proposed boundaries lies at the 1,600-foot contour line, which forms part of the area's southern boundary.

The petition explains that the proposed High Valley viticultural area boundary trends east-west and includes the ridges surrounding the basin. According to the petition, this transverse valley orientation, rarely found in the California Coastal Range, contributes to some of the distinctive climatic features of the proposed area.

The petition provided weather station data from several locations within the proposed High Valley viticultural area, including vineyards on the area's southeastern and western mountain ridges, and on the eastern and western portions of the valley floor. Using this data, the petition states that the proposed High Valley area's climate is cooler than those in the surrounding viticultural areas of Lake County.

The Winkler degree-day heat summation method of climate classification, the petition notes, classifies High Valley as a Region 3 climate and occasionally a cooler Region 2, depending upon the year and a vineyard's location within the proposed area. Amber Knolls, a grape-growing region approximately 5 miles west of High Valley's proposed boundary, has consistently warmer growing season temperatures, and is frequently a Region 4 climate in the degree-day classification system, according to the Lake County weather data provided in the petition.

The petitioner explains that High Valley's cool growing climate results from the valley's east-west orientation, High Valley Ridge's topography, and the perpetual “wind machine” generated from the Clear Lake basin. The high east-west ridges above the valley trap the cooling afternoon breezes as they blow in from the Clear Lake basin. Also, the cooling mountain-valley winds from the high northern elevations of the Mendocino National Forest drift down the ridges to the valley floor. The High Valley area, according to the petition, is one of the coolest grape-growing regions in Lake County, with a frost season that frequently extends into June. The grape varietals planted in the proposed area reflect this cooler and shorter growing season.

The petition presents limited rainfall data for the years 2000 through May 2003 and documents a wide variation in annual precipitation in High Valley. This data shows that the proposed High Valley viticultural area received 18 inches of precipitation in both 2000 and 2001, 29 inches in 2002, and 35 inches from January through May 2003. The petition states that, in recent years, other Lake County grape-growing regions received more precipitation than the proposed High Valley viticultural area. For example, the petition notes the following average precipitation amounts: Red Hills, 24 to 40 inches; Kelseyville, 46 inches; and the Putah Creek basin, 47 inches.

Originally a small east-west trending fault basin with drainage to the east, volcanic activity altered High Valley's shape and created a series of high ridges along its eastern side, forming the valley's largely enclosed basin and redirecting the valley's drainage westward into Clear Lake. This volcanic activity also created Tule Lake, a small lake on the valley's central floor, as well as Round Mountain, once an active volcanic cinder cone rising 400 feet above the northern valley floor.

The petition notes that the dominant rock types in the proposed High Valley viticultural area are Jurassic sedimentary rocks of the Franciscan Complex, basalt flows, and Quaternary volcanic deposits. As explained in the petition, the Franciscan Complex forms the base material and most of the exposed rock in the southern ridges and western portions of High Valley, while the Quaternary volcanics overlay the basalts found throughout the valley's eastern half. Round Mountain is a prominent High Valley feature of the Quaternary volcanics, according to the petition.

The petition notes that the two primary soil types of High Valley are weathered volcanic residue and Franciscan Complex weathered sandstone, shale, or phyllitic rocks. The east side of the proposed area contains soils derived primarily from volcanics, while the west side contains soils from Jurassic to Cretaceous sedimentary and phyllitic source material.

The petition states that the four basic soil formations within the proposed viticultural area include (1) Franciscan Hills that form the southern and western boundaries, (2) the alluvial basin of High Valley, (3) the alluvial terrace along the southeast boundary, and (4) the volcanic ridges along the area's northeastern portion near Round Mountain.

Wolfcreek loam soil, a very deep well-drained clay to sandy loam with moderately slow permeability, covers most of the High Valley floor, according to the petition. The eastern half of the proposed High Valley viticultural area contains Konocti variants, Konocti, Hambright, Benridge, and Sodabay Series soils. The petition notes that the Maymen, Hopland, and Mayacama Series soils dominate the southeast region of the proposed High Valley area. The western hills and ridges contain primarily Millsholm, Bressa, Hopland, Estel, and Maymen Series soils.

According to the petition, while the High Valley soils are permeable in mild and moderately-warm to warm temperatures, Big Valley soils allow only moderately-warm to warm temperature permeation. The petition adds that the soils of High Valley's slopes and ridges permit excellent drainage, unlike Big Valley's less favorable soil drainage characteristics. Further, the vine-planted slopes of the proposed High Valley viticultural area incline about 30 percent, comparatively steeper than the 0 to 2 percent incline of Big Valley vineyards, according to the petition.

The petition asserts that the proposed High Valley area contains aquifers and natural springs to meet its irrigation needs. The limited capability of Schindler Creek to take runoff out of High Valley contributes to the valley's unusually high water table. The springs of the valley's western and eastern mountain slopes and canyons flow down to the valley floor, which also contains springs, as well as numerous ponds, according to the petition.

The proposed High Valley viticultural area lies almost entirely within the Clear Lake viticultural area, which surrounds the large lake of that name in Lake County, California. In turn, the Clear Lake viticultural area is entirely within the larger, multi-county North Coast viticultural area. A portion of the proposed High Valley area lies outside of the two larger areas. The following table shows the overlapping relationships by acreage and percentage.

Background on Viticultural Areas TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (the FAA Act, 27 U.S.C. 201 et seq. ) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity and prohibits the use of misleading information on those labels. The FAA Act also authorizes the Secretary of the Treasury to issue regulations to carry out its provisions. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers these regulations.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Petitioners may use the same procedure to request changes involving existing viticultural areas. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, elevation, physical features, and soils, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

Paul Thorpe, on behalf of E. & J. Gallo Winery, submitted a petition to TTB requesting the realignment of a portion of the common boundary between the established Santa Lucia Highlands viticultural area (27 CFR 9.139) and the established Arroyo Seco viticultural area (27 CFR 9.59). Both viticultural areas are within the Monterey viticultural area (27 CFR 9.98) in Monterey County, California, which is in turn within the larger multi-county Central Coast viticultural area (27 CFR 9.75).

Currently, the portion of the originally established common boundary in question follows a straight line drawn between the intersection of Paraiso and Clark Roads and the northeast corner of section 5, T19S, R6E, as shown on the United States Geological Survey (USGS) Paraiso Springs, California, quadrangle map.

The proposed realignment would move this portion of the two areas' common boundary line about 1,000 to the east of the Paraiso and Clark Roads intersection and less than 500 feet to the east of the northeast corner of section 5, T19S, R6E. This realignment would transfer about 200 acres of land currently within the Arroyo Seco viticultural area to the Santa Lucia Highlands area.

According to the petitioner, the proposed realignment of this portion of the common boundary between the Santa Lucia Highlands and Arroyo Seco viticultural areas would serve three purposes: (1) It would bring the western boundary of the Arroyo Seco viticultural area into conformity with the western boundary of the historical Arroyo Seco Land Grant, which lends it name to the Arroyo Seco viticultural area; (2) it would conform the boundary line to land ownership boundaries; and (3) it would end the current division of the Olsen Ranch vineyards between the two viticultural areas.

Currently, a thin strip of land outside of the Arroyo Seco Land Grant is within the western-most portion of the Arroyo Seco viticultural area. By moving the common Santa Lucia Highlands and Arroyo Seco boundary line to the east, the Arroyo Seco Land Grant and Arroyo Seco viticultural area will have the same western boundary line.

The petitioner owns the Olsen Ranch, the great majority of which lies within the Santa Lucia Highlands viticultural area. Currently, the vineyards on the Olson Ranch, which were planted after the establishment of the two viticultural areas, are divided between the Arroyo Seco and Santa Lucia Highlands viticultural areas. By realigning this portion of common boundary line between the two viticultural areas, the Olson Ranch vineyards will be completely within the Santa Lucia Highlands viticultural area.

The petition also explains that the dominant physical feature of the proposed realignment area is the alluvial terracing that differentiates the highlands along the western edge of the Salinas Valley from the lower elevation valley floor. These terraces, which are above 600 feet in elevation, match the terrain found in the Santa Lucia Highlands viticultural area, the elevation of which is generally between 600 feet and 1,200 feet, as the provided USGS map shows. Also, the terraces and higher elevations of the Santa Lucia Highlands area contrast to the flatter terrain and lower elevation valley floor found in the Arroyo Seco viticultural area.

The primary soils of the proposed realignment area are of the Arroyo Seco and Chualar series, according to the 1978 U.S. Department of Agriculture Soil Survey of Monterey County, California, cited in the petition. These soils are generally loam or gravelly, sandy loam, with underlying very gravelly material, and they coincide with the dominant soils of the Santa Lucia Highlands viticultural area, according to the petition.

The petition states that the climatic conditions of the proposed realignment area are similar to the Santa Lucia Highlands viticultural area. The rainfall in the proposed realignment area and the Santa Lucia Highlands area is 10 to 15 inches a year, according to the petition. In contrast, the lower valley floor found in the Arroyo Seco viticultural area averages less rain at 9.5 inches a year.

Based on the information provided in the petition, we believe that it is appropriate to propose the boundary realignment between the Arroyo Seco and Santa Lucia Highlands viticultural areas requested in the petition. Accordingly, we set forth below proposed amendments to the boundary descriptions for the two viticultural areas found in §§ 9.59 and 9.139 of the TTB regulations.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we realign the boundary between the established Santa Lucia Highlands and Arroyo Seco viticultural areas, wine bottlers using “Santa Lucia Highlands” or “Arroyo Seco” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will still have to ensure that the product is eligible to use the relevant viticultural area's name as an appellation of origin.

For a wine to be eligible to use as an appellation of origin the name of a viticultural area specified in part 9 of the TTB regulations, at least 85 percent of the grapes used to make the wine must have been grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a new label or a previously approved label uses the names “Santa Lucia Highlands” or “Arroyo Seco” for a wine that does not meet the 85 percent standard, the new label will not be approved, and the previously approved label will be subject to revocation, upon the effective date of the approval of the boundary change.

Different rules apply if a wine has a brand name containing a viticultural area name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We invite comments from interested members of the public on whether we should realign the portion of the common boundary between the Santa Lucia Highlands and Arroyo Seco viticultural areas as described above. We are especially interested in the use of the “Santa Lucia Highlands” and “Arroyo Seco” names as they apply to the land within the proposed realignment zone. We are also interested in comments on the impact, if any, that the proposed viticultural areas' realignment may have on current wine labels. Please support your comments with specific information about the viticultural areas' names, boundaries, distinguishing features, or impact on current wine labels.

Please submit your comments by the closing date shown above in this notice. Your comments must include this notice number and your name and mailing address. Your comments must be legible and written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals. You may submit comments in one of five ways:

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

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

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

(2) Contain a legible, written signature; and

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

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

(1) Contain your e-mail address;

(2) Reference this notice number on the subject line; and

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

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

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

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

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

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

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

We certify that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866, 58 FR 51735. Therefore, it requires no regulatory assessment.

Nancy Sutton of the Regulations and Procedures Division drafted this notice.

For the reasons discussed in the preamble, we propose to amend title 27, chapter 1, part 9, Code of Federal Regulations, as follows:

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under Regional Material EDocket Number R01-OAR-2004-ME-0004. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding federal Holidays.

2. Electronic Access. An electronic version of the public docket is available through EPA's Regional Material EDocket (RME) system, a part of EPA's electronic docket and comment system. You may access RME at http://docket.epa.gov/rmepub/index.jsp to review associated documents and submit comments. Once in the system, select “quick search,” then key in the appropriate RME Docket identification number.

You may also access this Federal Register document electronically through the Regulations.gov web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register , the Government's legal newspaper, and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

3. Copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the State Air Agency. Bureau of Air Management, Department of Environmental Protection, State House, Station No. 17, Augusta, ME 04333.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking R01-OAR-2004-ME-0004” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in Regional Material EDocket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. Regional Material EDocket (RME). Your use of EPA's Regional Material EDocket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to RME at http://docket.epa.gov/rmepub/index.jsp, and follow the online instructions for submitting comments. Once in the RME system, select “quick search,” and then key in RME Docket ID Number R01-OAR-2004-ME-0004. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. Comments may be sent by electronic mail (e-mail) to conroy.dave@epa.gov, please include the text “Public comment on proposed rulemaking R01-OAR-2004-ME-0004” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

iii. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov, then click on the button “TO SEARCH FOR REGULATIONS CLICK HERE”, and select Environmental Protection Agency as Agency name to search on. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iv. Disk or CD-ROM. You may submit comments on a disk or CD-ROM that you mail to the mailing address identified in section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: David Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA 02114-2023. Please include the text “Public comment on proposed rulemaking R01-OAR-2004-ME-0004” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: David Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding federal Holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

Under the Clean Air Act Amendments of 1990, Maine had 4 separate 1-hour ozone nonattainment areas: the Portland area, the Lewiston-Auburn area, the Knox and Lincoln Counties area, and the Hancock and Waldo Counties area. Effective June 15, 2004, there are now two 8-hour ozone nonattainment areas in Maine; the Portland area (not identical to previous 1-hour ozone area) and portions of Hancock, Knox, Lincoln and Waldo counties.

To bring these areas into attainment, the State has adopted and implemented a broad range of ozone control measures including stage II vapor recovery at larger gas stations in the Portland area, numerous stationary and area source VOC and NO X controls, a vehicle testing (I/M) program in Cumberland county, and a low reid vapor pressure (RVP) gasoline control program in southern Maine. In addition, the State has required that beginning with the 2001 model year, all new light duty vehicles sold in the State meet California LEV emission standards. Maine has submitted a SIP revision requesting EPA approval of this LEV program.

The California Air Resources Board (CARB) adopted California's second generation low emission vehicle regulations (LEV II) following a November 1998 hearing. These regulations are a continuation of the low emission vehicle (LEV I) regulations originally adopted in 1990 which were effective through the 2003 model year. The LEV II regulations increase the scope of the LEV I regulations by lowering the emission standards for all light and medium-duty vehicles (including sport utility vehicles) beginning with the 2004 model year. There are several tiers of increasingly stringent LEV II emission standards to which a manufacturer may certify: Low-emission vehicle (LEV); ultra-low-emission vehicle (ULEV); super-ultra low-emission vehicle (SULEV); partial zero-emission vehicle (PZEV); and zero-emission vehicle (ZEV). In addition to stringent emission standards, the LEV II regulations provide flexibility to manufacturers by allowing them to choose the standards to which each vehicle is certified provided the overall fleet meets the specified phase-in requirements according to a fleet average hydrocarbon requirement that is progressively lower with each model year. The LEV II fleet average requirements commence in 2004 and apply through 2010 and beyond. In addition to the LEV II requirements, minimum percentages of passenger cars and the lightest light-duty trucks marketed in California by a large or intermediate volume manufacturer must be ZEVs. The program also includes a “smog index” label for each vehicle sold, the intent of which is to inform consumers about the amount of pollution coming from that vehicle relative to other new vehicles.

Subsequent to the adoption of the LEV II program, the U.S. EPA adopted its own substantially more stringent emission standards known as the Tier 2 regulations. In December 2000, CARB modified the LEV II program to take advantage of some elements of the federal Tier 2 program to ensure that only the cleanest vehicle models will continue to be sold in California.

Section 209(a) of the CAA prohibits states from adopting or enforcing standards relating to the control of emissions from new motor vehicles or new motor vehicle engines. However, section 209(b) of the CAA allows the State of California to adopt its own motor vehicle emissions standards if a waiver is granted by the U.S. Environmental Protection Agency (EPA.) EPA must approve a waiver if, in California's determination, it finds that its standards will be “ * * * in the aggregate, at least as protective of public health and welfare as such Federal standards * * * ” However, no waiver will be granted if the EPA Administrator finds the determination of California to be “arbitrary and capricious,” California “does not need such State standards to meet compelling and extraordinary conditions,” or California's standards and accompanying enforcement procedures are not consistent with section 202(a) of the Clean Air Act.

Section 177 of the Clean Air Act authorizes other states to adopt and enforce California motor vehicle emission standards relating to the control of emissions if the standards are identical to California's for which a waiver has been granted and California and the state adopt such standards at least two years prior to the commencement of the model year to which the standards will apply.

On February 17, 1993, Maine had adopted a version of this LEV regulation which was to be effective with model year 1996. This regulation, Chapter 127 of the Maine Department of Environmental Protection rules, was entitled “New Motor Vehicle Emission Standards.” State legislation was enacted prior to the required sale of these vehicles which prevented the rule from going into effect in Maine until certain triggers were met. These triggers were related to other Northeast States also adopting the California LEV (CA LEV) program. Vehicle manufacturers were subsequently notified in December, 1997 that these triggers had been met, and the LEV rule would be effective with the 2001 model year. Maine has made several modifications to this program to make it consistent with how California has modified its LEV program over time. Section 177 of the CAA provides that states may adopt California vehicle standards provided that the standards are identical to California's. As such, as California makes modifications to its program, states that have adopted California standards are compelled to make similar changes. The current version of the Maine program is intended to be identical to the current California program with the notable exception that the Maine program does not include ZEV requirements. 1

Maine does not deny registration to new vehicles which apply for registration in the State based on whether or not they are certified as compliant with the CA LEV program. Other States which implement the program ensure that only California certified vehicles are allowed to be registered. The level of credit in EPA's MOBILE6 model assumes that only CA LEV vehicles are in States with CA LEV programs dependent upon the model year the program begins. For example, EPA currently estimates that the CA LEV II program will provide about 1 percent additional reductions in mobile source VOC and 2 percent in air toxics over the federal Tier 2 program in 2020 with the program beginning in 2004. As currently structured, Maine's LEV program does not ensure that only these CA LEV certified vehicles are registered in Maine. However, Maine does require that Maine car dealers only sell (or offer for sale) California certified vehicles and ensures that this requirement is met by regularly checking new car dealer vehicle inventories. In addition, in a letter dated December 9, 2004, Maine has committed to regularly reviewing manufacturer's certificates of origin (MCO) to determine that the vehicles being registered in Maine are California certified, and to follow-up with new vehicles that are not CA LEV certified. Previous reviews of these MCOs have indicated a very high rate of compliance (99+ percent) for a sample of approximately 1000 vehicles. Nevertheless, Maine is aware that in some cases, vehicles that are not available under the California program, have been bought new elsewhere and are now registered in Maine. In light of this, Maine is requesting that they receive 90 percent of the credit associated with the LEV program. EPA believes this amount of credit is reasonable and is proposing to approve that request. By this proposal, we are seeking comment on the appropriateness of this level of credit for a State which does not deny registration to new motor vehicles that do not comply with the California LEV program. In proposing this level of credit, we considered and recognize the uniqueness of Maine's situation and its proximity to other States which require CA LEV vehicles, in addition to Maine's commitment to continue to enforce the program as described above.

As discussed earlier in this notice, States adopting the California LEV program must adopt a program which is identical to California's. The zero emission vehicle program has undergone several modifications through the years in California. And Maine had made several changes to their LEV program in attempts to ensure their program is consistent with California. However, in the version of the rule before EPA for approval action, Maine did not include any requirements for ZEVs to be sold. (As stated above, the State is now making further changes regarding these ZEV requirements.) Nevertheless, the Maine LEV program is designed to be a comprehensive program which will secure emission reductions. For that reason, and since the emission reductions from the California program are controlled by the fleet average hydrocarbon curve and can be achieved without any specific ZEV sales mandates, we are proposing to approve the emissions reductions associated with the LEV program and the Maine rules adopted on December 21, 2000, and effective December 31, 2000.

EPA is proposing to approve a SIP revision at the request of the Maine DEP. This version of the rule entitled “Chapter 127: New Motor Vehicle Emission Standards” was adopted by Maine with an effective date of December 31, 2000. It was submitted to EPA for approval on February 25, 2004. That submittal was later clarified on December 9, 2004 to justify the level of emission reductions expected from this program. This proposed approval would justify the State achieving 90 percent of the credit achieved by States that implement the CA LEV program through a registration based enforcement system. The regulation adopted by Maine includes the LEV I light-duty program beginning with model year 2001 in Maine, the California LEV II light-duty motor vehicle emission standards effective in model year 2004, the California LEV I medium-duty standards effective in model year 2003, and the smog index label specification effective model year 2002. EPA is proposing to approve the Maine low emission vehicle program requirements into the SIP because EPA has found that the requirements are consistent with the CAA.

EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the ADDRESSES section of this notice.

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

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

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

This rulemaking is based on the authority of the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984.

The Motor Carrier Act of 1935, as amended, provides that “[t]he Secretary of Transportation may prescribe requirements for: (1) Qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation” (49 U.S.C. 31502(b)).

For reasons explained in more detail below, this NPRM raises for reconsideration the hours-of-service regulations applicable to drivers and operators of property-carrying CMVs, which were promulgated by FMCSA on April 28, 2003 (68 FR 22456) and amended on September 30, 2003 (68 FR 56208). The agency may ultimately modify those regulations as a result of this review. The hours-of-service regulations deal directly with the “maximum hours of service of employees of * * * a motor carrier (section 31502(b)(1)) and the “maximum hours of service of employees of * * * a motor private carrier” (section 31502(b)(2)). The adoption and enforcement of such rules were specifically authorized by the Motor Carrier Act of 1935. This NPRM rests squarely on that authority.

The Motor Carrier Safety Act of 1984 provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that: (1) Commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” (49 U.S.C. 31136(a)).

This NPRM deals with the hours of service of drivers. It is based primarily on the requirements of section 31136(a)(2) and (a)(4), and secondarily on section 31136(a)(1) and (a)(3). The fundamental purpose of the hours-of-service regulations is to ensure that driving requirements and other employment obligations imposed on CMV operators “do not impair [the drivers'] ability to operate the vehicles safely” (section 31136(a)(2)). Broadly speaking, this NPRM is seeking public comment on whether the April 2003, final rule achieves that goal through a combination of three provisions (though others also play a role) which require drivers to take 10 consecutive hours off duty before driving a CMV, limit driving time after 10 hours off duty to 11 hours, and prohibit driving after the 14th hour after coming on duty following 10 hours off duty.

FMCSA also seeks comment on whether that same combination of provisions addresses some of the requirements of section 31136(a)(4) by minimizing the “deleterious effect[s]” of sleep deprivation and cumulative fatigue on “the physical condition” of CMV drivers, and thus reducing the risk of fatigue-related accidents. This NPRM also requests public comments and information about other possible “deleterious effect[s]” associated with hours of service and with the operation of CMVs, which the agency is considering in the course of this rulemaking. While section 31136(a)(1) deals primarily with vehicle equipment and loading (now codified at 49 CFR part 393 and § 392.9), it also requires that CMVs be “operated safely,” which encompasses both the vehicle and the driver. Finally, section 31136(a)(3) requires regulations which ensure that “the physical condition” of CMV drivers enables them to drive safely. Although that subsection requires the agency to adopt general physical qualification standards (now codified at 49 CFR 391.41(b)), a CMV driver's “physical condition” may be affected by “the responsibilities imposed” on him/her and by “deleterious effect[s]” associated with the operation of large CMVs. To enable FMCSA to evaluate the need for any changes to the April 2003, hours-of-service regulations, this NPRM requests comments and information on all of these issues as they relate to the hours-of-service regulations.

Before prescribing any regulations, however, FMCSA must also consider the “costs and benefits” of its proposal (49 U.S.C. 31136(c)(2)(A)). For that reason, this NPRM seeks comment on the economic effects of this proposal as well.

The Interstate Commerce Commission (ICC) promulgated the first Federal hours-of-service regulations in the late 1930s. The rules were based on the Motor Carrier Act of 1935. The regulations remained largely unchanged from 1940 until 2003, except for a significant amendment in 1962. Prior to 1962, driver hours-of-service regulations were based on a 24-hour period from noon to noon or midnight to midnight. A driver could be on duty no more than 15 hours in a 24-consecutive-hour period. In 1962, among other rule changes, the 24-hour cycle was removed and replaced by minimum off-duty periods. A driver could “restart” the calculation of his or her driving and on-duty limitations after any period of 8 or more hours off duty.

Section 408 of the ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803, at 958) required the Federal Highway Administration (FHWA) to conduct rulemaking “dealing with a variety of fatigue-related issues pertaining to commercial motor vehicle safety.” In response, FHWA published an advance notice of proposed rulemaking (ANPRM) on November 5, 1996 (61 FR 57252). FMCSA was established as a separate agency on January 1, 2000. At that time, responsibility to promulgate CMV regulations was transferred from FHWA to FMCSA, which published an hours-of-service NPRM on May 2, 2000 (65 FR 25540) and a final rule on April 28, 2003 (68 FR 22456). Technical amendments to the final rule were published on September 30, 2003 (68 FR 56208). Motor carriers and drivers were required to comply with the final rule starting on January 4, 2004.

FMCSA's 2003 final rule did not change any hours-of-service requirements for motor carriers and drivers operating passenger-carrying vehicles. They are required to continue complying with the hours-of-service rules existing before the 2003 final rule (see 68 FR 22461-22462). Changes in hours-of-service provisions in the new rule applied only to motor carriers and drivers operating property-carrying vehicles. Compared to the previous regulations, the new rule: (1) Required drivers to take 10, instead of 8, consecutive hours off duty (except when using sleeper berths); (2) retained the prior prohibition on driving after 60 hours on duty in 7 consecutive days or 70 hours in 8 consecutive days; (3) increased allowable driving time from 10 hours to 11 hours; and (4) replaced the so-called 15-hour rule (which prohibited drivers from driving after being on duty more than 15 hours, not including intervening off-duty time) with a 14-hour rule (which prohibited driving after the 14th hour after the driver came on duty, with no extensions for off-duty time). Additionally, FMCSA allowed drivers to “restart” the calculations for the 60- and 70-hour limits by taking 34 consecutive hours off duty. Based on the data and research available at the time, FMCSA was convinced that these new rules constitute a significant improvement in the hours-of-service regulations compared to the rules they replaced, by providing drivers with better opportunities to obtain restorative sleep, thereby reducing the incidence of crashes wholly or partially attributable to drowsiness or fatigue.

On June 12, 2003, Public Citizen, Citizens for Reliable and Safe Highways (CRASH) and Parents Against Tired Truckers (PATT) filed a petition to review the new hours-of-service rule with the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). On July 16, 2004, the D.C. Circuit issued an opinion holding “that the rule is arbitrary and capricious [under the Administrative Procedure Act] because the agency failed to consider the impact of the rules on the health of drivers, a factor the agency must consider under its organic statute. Because the agency has wholly failed to comply with this specific statutory requirement [ i.e. , 49 U.S.C. 31136(a)(4)], this single objection from petitioners is sufficient to establish an arbitrary-and-capricious decision requiring vacatur  1 of the rule.” Public Citizen et al. v. Federal Motor Carrier Safety Administration , 374 F.3d 1209, at 1216. The court said that “[t]he FMCSA points to nothing in the agency's extensive deliberations establishing that it considered the statutorily mandated factor of drivers' health in the slightest.” Id . Although FMCSA argued that the effect of driver health on vehicle safety had “permeated the entire rulemaking process,” the court said that “[u]nder the statute, vehicle safety is a distinct factor the agency must consider, so considering the effect of driver health on safety cannot be equal to considering the impact on the physical condition of the operators. * * * It may be the case, for example, that driving for extended periods of time and sleep deprivation cause drivers long-term back problems, or harm drivers' immune systems. The agency may of course think that these and other effects on drivers are not problematic (or are outweighed by other considerations, like cost), but if so it was incumbent on it to say so in the rule and to explain why. Its failure to do so, standing alone, requires us to vacate the entire rule as arbitrary and capricious * * *” Public Citizen at 1217.

The court also found fault with other aspects of the final rule and in dicta stated that (1) FMCSA's justification for increasing driving time from 10 to 11 hours ( i.e. , more off-duty time and a shorter 14-hour driving window compensate for the additional driving time) may be legally insufficient because the agency failed to adequately demonstrate that other provisions of the rule offset the increase and failed to take into account the fatigue effects of “time on task” in the context of longer weekly on-duty periods allowed by the 34-hour restart; (2) the justification for allowing drivers of CMVs equipped with sleeper berths to split their 10-hour off-duty period into two separate periods was probably arbitrary and capricious, since FMCSA itself asserted that drivers need an opportunity for eight hours of uninterrupted sleep each night; (3) the agency's failure to collect and analyze data on the costs and benefits of requiring electronic on-board recording devices (EOBRs) probably failed to meet the requirements of section 408 of the ICC Termination Act, which requires FMCSA to “deal with” EOBRs; and (4) the agency's explanation of the 34-hour restart provision did not address or justify increases in the maximum weekly driver hours permitted by that provision.

At the end of August 2004, FMCSA modified an existing contract with the Transportation Research Board (TRB) of the National Academy of Sciences. The modification requires TRB to review, first, the literature published between 1975 and the present concerning the health implications of the hours-of-service regulations for CMV drivers, and, second, the literature relating to CMV drivers' hours of service and fatigue from 1995 to the present. The review is expected to be complete by early 2005. All pertinent information will be made available in the public docket for this rulemaking.

On September 1, 2004, FMCSA published an ANPRM requesting information about factors the agency should consider in developing performance specifications for EOBRs. As the agency said in the preamble to that document, “FMCSA is attempting to evaluate the suitability of EOBRs to demonstrate compliance with the enforcement of the hours-of-service regulations, which in turn will have major implications for the welfare of drivers and the safe operation of commercial motor vehicles.” The ANPRM asked for comments and information, both on technical questions relating to EOBRs, and about the potential costs and benefits of such devices.

On September 30, 2004, the President signed the Surface Transportation Extension Act of 2004, Part V (Public Law 108-310, 118 Stat. 1144). Section 7(f) of the Act provides that “[t]he hours-of-service regulations applicable to property-carrying commercial drivers contained in the Final Rule published on April 28, 2003 (68 FR 22456-22517), as amended on September 30, 2003 (68 FR 56208-56212), and made applicable to motor carriers and drivers on January 4, 2004, shall be in effect until the earlier of : (1) the effective date of a new final rule addressing the issues raised by the July 16, 2004, decision of the United States Court of Appeals for the District of Columbia in Public Citizen, et al. v. Federal Motor Carrier Safety Administration (No. 03-1165); or (2) September 30, 2005.” (118 Stat. 1144, at 1154).

The premise of the current hours-of-service rule is that safety and driver health related to the operation of a CMV will be improved by regulations moving drivers toward a 24-hour work cycle and providing drivers with sufficient time off to obtain eight hours sleep, while allowing carriers flexibilities in meeting schedule demands. There is general agreement among sleep researchers and industry participants that the hours-of-service rules should build on the foundation of a 24-hour day. Studies performed in laboratory settings, as well as studies assessing operational situations, have explored the relationships between the sleep obtained and subsequent performance. (Dinges, D.F., & Kribs, N.B., “Performing While Sleepy: Effects of Experimental-Induced Sleepiness” (1991); Bonnet, M.H., & Arrand, D.L., “We are Chronically Sleep Deprived” (1995); Belenky, G., et al. , “The Effects of Sleep Deprivation on Performance During Continuous Combat Operations” (1994); Dinges, D.F., et al. , “Cumulative Sleepiness, Mood Disturbances, and Psychomotor Vigilance Performance Decrements During a Week of Sleep Restricted to 4-5 Hours Per Night” (1997); Pilcher, J.J., & Hufcutt, A.I., “Effects of Sleep Deprivation on Performance: A Meta-Analysis” (1996); and Belenky, G., et al. , “Effects of Continuation Operations on Soldier and Unit Performance: Review of the Literature and Strategies for Sustaining the Soldier” (1987)). The results of these studies can be summarized simply: a person who is sleepy is more prone to perform poorly on tasks requiring vigilance, quick reaction time, and decision-making than a person who is alert. The scientific basis for proposing daily restrictions is that an individual experiencing multiple periods of insufficient sleep quantity or quality incurs a cumulative sleep debt leading to increased levels of fatigue. The current rule permits a maximum of 11 hours of cumulative driving time, an increase of one hour from the previous rule. This current rule is, however, more restrictive in that it does not, as did the previous rule, permit a driver to extend on-duty time by subtracting breaks and waiting time from the on-duty time calculation. The 2003 rule reconsidered here adopted a number of provisions that combine to enhance highway safety and the health of CMV drivers as related to the operation of a CMV. The rule increased by two hours (from 8 to 10) the amount of off-duty time drivers must take between shifts and reduced the window in which driving can occur by one hour (from 15 to 14). Because the rule also eliminated a loophole in the previous rule permitting truckers to extend the 15-hour limit by taking breaks of any length, the driving “window” was actually shortened by more than one hour. Since these safety measures gave drivers substantially more opportunity to obtain restorative sleep, the agency concluded that a one-hour increase in driving time (from 10 to 11 hours) would not compromise the safe operation of CMVs or the health of drivers related to the hours-of-service regulations. A 14-hour work shift combined with a 10-hour off-duty period allows drivers to work in a 24-hour cycle, in step with the normal 24-hour circadian  2 rhythms. The agency retained the previous prohibition on driving after 60 hours on duty in 7 consecutive days, or 70 hours in 8 days, but it allowed drivers to restart the 60/70-hour calculation after taking 34 consecutive hours off duty. This gave drivers an opportunity to take two full 8-hour sleep periods and to return to duty close to their previous starting times, thus helping to maintain their 24-hour circadian rhythms. The agency retained the rule permitting truckers to split their required off-duty time into two periods in a sleeper berth, neither of which could be less than two hours. Total sleeper-berth time, however, was increased from 8 to 10 hours. Finally, the agency declined to adopt a rule that would have required electronic on-board recording devices in all long-haul vehicles because both costs and benefits were unknown at the time.

This rulemaking is necessary to develop hours-of-service regulations to replace those vacated by the Court. The vacated rule remains in effect until replaced or until September 30, 2005, whichever occurs first. This NPRM seeks public comment on what changes, if any, should be made to the April 2003 final rule to address the concerns raised by the D.C. Circuit, as outlined below. FMCSA's review of the literature on driver health and the various hours-of-service issues discussed by the Court will help the agency determine whether the 2003 final rule should be changed. The hours-of-service regulations for drivers of passenger-carrying CMVs, i.e. , the rules previously applicable to the entire motor carrier industry, were not changed by the 2003 final rule and, consequently, were not at issue in Public Citizen . Therefore, the agency is neither requesting comment on, nor proposing to change, the motorcoach regulations at this time.

See the “Instructions” subsection early in this NPRM for specific methods of submitting comments. When you are addressing a specific request for comments in this NPRM, please clearly identify the related “request number(s)” for each topic addressed in your comments.

• FMCSA requests comments on the alternatives and issues presented in this NPRM. Commenters are also welcome to present other alternatives or raise additional issues directly related to the hours-of-service regulations.

• Commenters should address the incremental, direct impact of any proposed changes in hours-of-service requirements on driver health, the safe operation of CMVs, and economic factors. In other words, for any aspect of the hours-of-service rule being commented upon, please address the impact any change would have or has had on driver health, the safe operation of CMVs, and economic factors. Only issues directly related to the hours-of- service regulations and the operation of a CMV are being considered in this rulemaking.

• Whenever possible, commenters should address the relationship of the subject commented upon to other aspects of hours-of-service requirements. For example, a recommendation to change the current 11-hour maximum driving time to some other driving time should discuss this in the context of any other changes being suggested to the 14-hour duty period or minimum 10-hours off-duty requirement, and, if so, how the combination of these factors impacts driver health, the safe operation of CMVs, and economic factors.

• Commenters are requested to include a clear rationale for any recommendations offered, along with documentation and data to support the recommendation.

• Specific references to scientific studies supporting a recommendation are also requested.

• For motor carriers and drivers, please provide information on your current operations, such as (a) Whether your primary operations are short-haul ( i.e. , operations limited to 150 miles or less, with drivers typically spending each night at home) or long haul, (b) whether you are a private or for-hire motor carrier (or drive for one), (c) whether you are a truckload or less-than-truckload motor carrier (or drive for one) and (d) the commodity or commodities you most frequently haul.

The D.C. Circuit held in Public Citizen that FMCSA failed to consider the possibly deleterious effect of the 2003 hours-of-service rule on the physical condition of drivers, as required by 49 U.S.C. 31136(a)(4). This NPRM seeks information on that issue. The court in dicta also addressed several safety issues. Health and safety issues, while treated separately in the Motor Carrier Safety Act of 1984, are inextricably related. Any post-1984 changes to the hours-of-service regulations must ensure that driving a CMV does not harm drivers. Conversely, the physical condition of drivers can have a direct impact on highway safety, though all health problems do not have equally immediate effects. The 2003 final rule addressed the impacts of changes to the hours-of-service rules, but FMCSA is again inviting the public to comment on safety and driver health issues related to changes in the hours-of-service rule and the operation of a CMV.

Since publication of the 2003 final rule, the literature and studies on driver safety and health have expanded and evolved. In addition to any studies and reports referenced in the May 2000 NPRM, the April 2003 final rule, and in this NPRM, FMCSA is continuing to study emerging data and information on these related issues. The agency will file in the docket (FMCSA-2004-19608) a copy or summary of any study or report that is being considered in this rulemaking and has not previously been referenced.

FMCSA requests comments on the relationships between driver health and safety generally, but also between the net effect of the changes produced by the 2003 hours-of-service rule and health and safety.

Scientific research has made important contributions to the development and assessment of regulatory proposals. A 1941 empirical study of human fatigue and stress in a workplace environment was completed under the direction of the U.S. Public Health Service to support the ICC's initial activity in hours-of-service regulations. Legislative and regulatory history, however, also show many examples of “common sense” proposals that are now seen as having had a scientific basis. One example was the ICC's original regulatory proposal. It limited CMV drivers to 12 hours of on-duty time (driving or not driving) in a 15-hour duty period, allowing 3 hours for breaks. The ICC rule required motor carriers to provide drivers 9 consecutive hours off duty—a schedule that would have maintained circadian rhythms. This provided a 15-hour duty period and 9-consecutive-hour minimum off-duty period, similar to the 14-hour duty period and 10-consecutive-hour off-duty periods of the current rule.

In developing its May 2000 proposed rulemaking, FMCSA reviewed nearly 150 research studies and other documents, many of which were submitted or referred to by docket commenters. Many of the reviewed documents reported on research conducted on motor carriers and CMV drivers. Others, such as studies on shiftwork, sleep and performance, and the physiological nature of sleep, were relevant to the issue of CMV driver safety.

The studies underlying this proposed rule make the point that adverse effects of sleep deprivation can occur when the opportunity to take sleep is curtailed, when people try to obtain sleep during periods of the day when their systems are in a more active physiological state (such as mid-morning and early evening), or when environmental conditions are not conducive to obtaining sleep. Adverse effects include slower reaction times, poor and variable responses, deterioration of judgment, less vigilance and attention, and loss of alertness. Lack of sleep can also produce subjective feelings of tiredness, loss of motivation, and deterioration of mood.

Many of the studies germane to this NPRM, as well as to FMCSA's prior regulatory activities, are referenced in An Annotated Literature Review Relating to Proposed Revisions to the Hours-of-Service Regulation for Commercial Motor Vehicle Drivers , Freund, D.M., Office of Motor Carrier Safety, November 1999, Publication No. DOT-MC-99-129. That review is available in DOT Docket No. 2350, entry #956.

In preparing the 2000 NPRM and the 2003 final rule, FMCSA considered the effect of sleep quality and quantity, first and foremost, in the context of safe driving. Hours-of-service regulations exist to ensure a safe environment for the CMV driver, and for the driving public that shares the nation's highways. That said, there exists an extensive body of scientific literature that addresses the influences of hours of work and work schedules on employees' health and well-being.

Rutenfranz, J., Knauth, P., & Colquhoun, W. (1976), “Hours of Work and Shiftwork,” Ergonomics 19(3), pp. 331-340, presents an overview of health and social concerns arising from long working hours and shiftwork. The authors consider elements of a workday (work, leisure, sleep); they note work by others indicating that sleep during the day may have less recuperative value than sleep during the night, and also that an insufficient amount of “genuine leisure time” [ i.e. , time over and above that needed for personal needs] could result in decreased sleeping time. Although the authors hold that a daily working time of 8 hours is optimal, they note that longer or shorter workdays may be allowed or required, depending on environmental influences and levels of mental or emotional stress associated with the job. The authors cite research documenting digestive and sleep disorders among shiftworkers. Shiftworkers' sleep is shorter and of poorer quality and quantity as measured by quantitative clinical ( i.e. , electroencephalographic) criteria. They also have considerable difficulties re-entraining [reestablishing timing of] physiological functions after shiftwork. Finally, shiftwork has adverse impacts on family and social life.

Research on CMV driver health issues generally falls into three categories: (1) The effects of sleep loss or deprivation; (2) the effects of exposure to noise, vibration, and exhaust gases and other chemicals while operating a CMV; and (3) workplace injuries and fatalities while operating a CMV.

Request E-1-1. Because the new hours-of-service rule is a combination of several elements (longer driving time, a reduced driving window, more off-duty time, an optional restart section, etc.), FMCSA requests studies and other data on the combined or net effects of these hours-of-service recommendations on driver health, the safe operation of CMVs, and economic factors. The agency also seeks comments on the mutual interactions of the various elements of the rule, e.g. , whether they reinforce or conflict with each other, how the net effect of the elements could be improved, etc. The agency further requests comparison of the combined effect of the incremental changes in the 2003 rule compared to the rule prior to 2003. Commenters should take into account the combined effect of any recommendations they submit on the daily on- and off-duty periods, circadian rhythms, accumulated duty time over multi-day periods, and other relevant factors.

Request E-1-2. Do the new regulations provide drivers with additional time for rest and relaxation, personal matters, and family activities? How have the new regulations impacted the “quality of life” for drivers?

Truck drivers have always worked long hours. This is especially true for long-haul drivers. Particularly in the truckload sector of the industry, drivers are required to spend many, and in most cases uncompensated, hours waiting to pick up and unload goods. This affects their ability to maintain their driving schedules and can have an adverse impact on regular wake-sleep cycles. From a compliance point of view, it can affect the driver's ability to operate within the bounds of the hours-of-service regulations while still obtaining the mandatory minimum off-duty time for sleep, meals, and attending to personal needs (see Freund (1999) for discussions of studies by McCartt, et al. (1995), Van Ouwerkerk (1988), and Belzer, M.H., et al. , “Proposed Changes in Motor Carrier Hours of Service: Project Report” (2002)).

Serious adverse health conditions appear to be associated with chronic sleep deprivation. In his review, Åkerstedt (1991) cited findings by other researchers who noted increased sleep problems, as well as increased incidence of myocardial infarcts and cardiovascular disease in general. A 1999 study claimed to find that restricting sleep in healthy young men to four hours per night for only six nights “is associated with striking alterations in metabolic and endocrine function. The effects are similar to those seen in normal aging and, therefore, sleep debt may increase the severity of age-related chronic disorders” such as diabetes and hypertension (Spiegel, K., et al. , “Impact of Sleep Debt on Metabolic and Endocrine Function,” The Lancet, Vol. 354, No. 9188, 23 October 1999, pp. 1435-1439). However, the implications of this study for this rulemaking appear to be ambiguous. The amount and duration of sleep deprivation required to exacerbate chronic disorders appear unclear, and the conditions under which the effects of sleep deprivation can be reversed also appear to be unclear. Finally, extended working hours tend to desynchronize the internal circadian rhythms of long-haul drivers who have work/rest cycles less than 24 hours (Stoynev, A.G., & Minkova N.K., “Circadian Rhythms of Arterial Pressure, Heart Rate and Oral Temperature in Truck Drivers,” Occupational Medicine (London), Vol. 47, No. 3, April 1997, pp. 151-154).

Request E-2-1. Sleep Loss/Deprivation. FMCSA requests information on all adverse and beneficial effects of the new hours-of-service rule on the health of CMV drivers in contrast to the old rule. We are particularly interested in identifying any increase or reduction in sleep deprivation, and any measured changes in driver health impacts, generated as a consequence of the 2003 rule. Sleep deprivation in general: What identifies the presence or the absence of sleep deprivation in the CMV driver population? Is there any differential evidence of sleep deprivation in the CMV driver population subject to the new hours-of-service rule compared to the previous rule? How much sleep do drivers operating under the new regulations average on a daily basis, and how has this average changed as a result of the new rule? In other words, are drivers getting more or less sleep because of the new rule? Are they getting the 8 hours of sleep each day considered necessary to maintain alertness? Is there any evidence that 10 continuous hours of off-duty time does not provide adequate opportunity for drivers to obtain 8 hours of sleep each day?

Request E-2-2. Naps/Rest Periods. Several studies have addressed the effectiveness of naps and breaks in alleviating or preventing fatigue and drowsiness (Wylie, C.D., et al. (1996, 1997, 1998) and other studies referenced in Freund Annotated Literature Review (1999)). Do naps or short rest periods improve driver alertness in the operation of a CMV? How long should they be? At what point in the driving or duty cycle would they provide the greatest benefit? At what time of day would they provide the greatest benefit? If rest or other breaks from driving improve alertness, is there some additional amount of operational flexibility that could be afforded to a driver who chooses to take certain minimum breaks that would not increase safety risks or impair driver health? Are naps or rest periods beneficial to driver health? Does napping in a seated position provide rest equivalent to napping while lying flat (as in a sleeper berth)? Please explain.

CMV drivers may be exposed to harmful substances or conditions, such as diesel engine exhaust emissions and chemicals. Drivers are also exposed to vehicle vibration and noise. A number of research studies are being evaluated to determine their relationship to CMV driver hours-of-service regulations.

There has been some research on the relationship between exposure to diesel engine exhaust emissions and driver health. A Danish study claimed that a group of 14,225 truck drivers had a higher mortality rate over a ten-year period from lung cancer and multiple myeloma than did a group of 43,024 unskilled male laborers in other occupations (Hansen, E.S., “A Follow-Up Study on the Mortality of Truck Drivers,” American Journal of Industrial Medicine , Vol. 23, No. 5, May 1993, pp. 811-821). Another study asserted that male truck drivers faced higher risk of death than other men did from colon cancer, laryngeal cancer, lung cancer, diabetes, ischemic heart disease, non-alcohol cirrhosis, and motor vehicle crashes (Aronson, K.J., et al. , “Surveillance of Potential Associations Between Occupations and Causes of Death in Canada, 1965-91,” Occupational and Environmental Medicine , Vol. 56, No. 4, April 1999, pp. 265-269). A review of 30 epidemiological studies in North America and Europe (including 10 studies of truck drivers, two of bus drivers, and four of all professional drivers) similarly concluded that occupational exposure to diesel exhaust raised the risk of lung cancer (Lipsett, M., & Campleman, S., “Occupational Exposure to Diesel Exhaust and Lung Cancer: A Meta-Analysis,” American Journal of Public Health , Vol. 89, No. 7, July 1999, pp. 1009-1017). Another review of 15 studies of truck drivers and 10 of bus drivers suggested that exposure to diesel exhaust may also raise the risk of bladder cancer (Boffetta, P., & Silverman, D.T., “A Meta-Analysis of Bladder Cancer and Diesel Exhaust Exposure,” Epidemiology , Vol. 12, No. 1, January 2001, pp. 125-130). Finally, CMV drivers can be exposed to chemicals in liquid or vapor form. One study, for example, found that drivers delivering gasoline can experience acute headaches, dizziness, or nausea after exposure to vapors during loading and unloading (Hakkola, M.L., et al. , “Changes in Neuropsychological Symptoms and Moods Among Tanker Drivers Exposed to Gasoline During a Work Week,” Occupational Medicine (London), Vol. 47, No. 6, August 1997, pp. 344-348).

Drivers face extended exposure to highway noise that may lead to hearing loss (Van Den Heever, D.J., & Roets, F.J., “Noise Exposure of Truck Drivers: A Comparative Study,” American Industrial Hygiene Association Journal , Vol. 57, No. 6, June 1996, pp. 564-566). Highway noise can also cause problems for drivers who are attempting to sleep in the sleeper berth while their partners drive, thereby reducing the adequacy of their restorative sleep (Seshagiri, B., “Occupational Noise Exposure of Operators of Heavy Trucks,” American Industrial Hygiene Association Journal , Vol. 59, No. 3, March 1998, pp. 205-213). Additionally, drivers are exposed to whole body vibration (Palmer, K., “Prevalence and Pattern of Occupational Exposure to Whole Body Vibration in Great Britain: Findings from a National Survey,” Occupational and Environmental Medicine , Vol. 57, No. 4, April 2000, pp. 229-236), which may lead to lower back pain (Pope M.H., et al. , “Low Back Pain and Whole Body Vibration,” Clinical Orthopedics and Related Research , No. 354, September 1998, pp. 241-248). A Danish study examining hospital admissions over several years concluded that truck and bus drivers had higher age-standardized admission ratios for prolapsed cervical or lumbar discs, and also markedly high admission ratios for back injuries (Hannerz, H., & Tuchsen, F., “Hospital Admissions Among Male Drivers in Denmark,” Occupational and Environmental Medicine , Vol. 58, No. 4, 1 April 2001, pp. 253-260). Many truck drivers must perform heavy lifting, often after spending hours driving; this may contribute to injuries to the spine and ligaments (Jensen, M.V., et al. , “Prolapsed Cervical Intervertebral Disc in Male Professional Drivers in Denmark, 1981-1990: A Longitudinal Study of Hospitalizations,” Spine , Vol. 21, No. 20, 15 October 1996, pp. 2352-2355).

The implications of these studies are not always clear. Some of the research has suggested that the effect of exposure to diesel exhaust was concentrated among older drivers—many of whom drove years ago when few or weaker emissions standards existed. The mortalities of drivers who drove in later time periods did not show a similar relationship. The Environmental Protection Agency (EPA) has tightened its standards on vehicle emissions in the last two decades and will again beginning in 2006. In the past five years alone, many of the components of diesel exhaust that are considered dangerous to health have been significantly reduced (Bunn, W.B., et al. , “What is New in Diesel Emissions?” International Archives of Occupational and Environmental Health , July 2002, pp 122-132). EPA regulations that will go into effect in 2007 and 2010 will reduce these emissions levels even further.

Modern CMVs have also evolved. Truck manufacturers have improved ergonomics and driving comfort considerably. Noise levels in the cab—whether from the engine, tires, or outside sources—have been reduced. Manufacturers have continued to make great strides in reducing high-frequency truck vibration through improved cab suspensions and engine mounts. Air-suspension driver's seats are also commonplace. However, the long-term effects of current emissions, noise levels, and vibration, even in modern vehicles, are largely unknown. To this end, FMCSA requests information on the impacts of exposure (noise, vibration, and chemical emissions) on the health of commercial motor vehicle drivers as they relate to driver hours of service.

Request E-3-1. Exposure. In this request and throughout this NPRM, we are looking at only injuries or conditions directly related to the hours-of-service regulations and operating a CMV, not other workplace injuries, which are outside the jurisdiction of FMCSA. What are the current standards and/or testing data regarding vehicle noise, vibration, and emissions? How have these standards changed over time? Does any research or data assess the impact on driver health of exposure to diesel exhaust emissions, exposure via respiration or skin contact with other chemicals, noise, and vibration during the operation of a CMV or during rest periods in a sleeper berth? Since the new hours-of-service rule allows drivers 11, rather than 10, hours of driving time, what are the consequences to drivers of one additional hour of such exposure in the vehicle per day? What are the exposure effects of the new 14-hour rule, in contrast to the previous 15-hour rule? What other exposure factors relating to the new hours-of-service regulations adversely or beneficially affect CMV driver health? Is revision of the hours-of-service rule the appropriate answer to adverse exposure impacts? What are the economic costs of addressing exposure through hours of service?

According to information from the Bureau of Labor Statistics, U.S. Department of Labor, transportation workers suffer more fatalities than any other occupational group, accounting for 12 percent of all U.S. worker deaths annually. Nearly two-thirds of these fatalities are caused by highway crashes. Truck drivers also have more nonfatal injuries than workers in any other occupation. Half of the nonfatal injuries were serious sprains and strains.

Request E-4-1. Workplace Injuries and Fatalities. In this request and throughout this NPRM, we are looking at only injuries directly related to the hours-of-service regulations and operating a CMV, not other workplace injuries that are outside the jurisdiction of FMCSA. What is the impact of fatigue and loss of alertness on CMV driver workplace injuries and fatalities? Does the evidence connect these injuries or fatalities to specific aspects of the current or previous hours-of-service regulations? Please distinguish injuries and fatalities related to the hours-of-service regulations and operation of a CMV from other workplace hazards such as those related to loading and unloading.

Lifestyle choices, including diet and exercise, may impact driver health and safety. Realistically, such choices cannot be regulated by FMCSA. For example, while the hours-of-service regulations prohibit driving during off-duty hours, they do not prevent the driver from engaging in personal activities, rather than sleeping. Similarly, an excessive or unhealthy diet can lead to obesity, which in turn may predispose a driver to diabetes or back problems.

Request E-5-1. Lifestyle Choices. What effect do certain lifestyle choices, such as diet, exercise, and the use of off-duty time, have on driver safety and health?

Sleep researchers and the motor carrier industry generally agree that the hours-of-service rules should promote work schedules built on a 24-hour day. Studies exploring the relationship between sleep obtained and subsequent performance, both in laboratory and operational settings, generally indicate that a person who is sleepy is more prone to perform poorly on tasks requiring vigilance, quick reaction time, and decisionmaking than a person who is alert. The scientific basis for restricting driving time includes research findings indicating that inadequate sleep can lead to fatigue, and several periods of insufficient sleep (inadequate in quantity or quality) cause sleep debt or cumulative fatigue.

The 2003 hours-of-service rule permits up to 11 hours of driving time after 10 consecutive hours off duty. Compared to the previous rule, this permits up to one additional hour of driving time, but requires at least 2 additional hours of off-duty time. The new rule also limits driving to a 14-hour window after a driver comes on duty. Unlike the previous 15-hour rule, the new rule does not permit a driver to extend his or her on-duty time by subtracting breaks, waiting, and other off-duty periods from the calculation of on-duty time. The new rule addresses the issue of driver fatigue by providing drivers a daily opportunity to obtain a full 8 hours of sleep and still have time available for other personal activities within the minimum 10-hour off-duty period. We believe that the net effect of these changes is that the driver spends less time on duty, in most cases, and usually has the time necessary to commute and attend to personal matters, while still obtaining the 8 consecutive hours of sleep recommended in the scientific literature to ensure alertness.

The mandatory minimum 10-hour off-duty time, combined with a maximum 14-hour window in which driving can occur, establishes a 24-hour day for the driver who maximizes on-duty time and minimizes off-duty time. This routine is consistent with the well documented, near-24-hour circadian cycle that regulates energy and alertness levels. FMCSA concluded that the advantages of putting most drivers on a 24-hour, or near-24-hour, work cycle, combined with the opportunity to obtain 8 or more hours of sleep per night, will result in a well-rested driver capable of driving the additional 1 hour per day. The new rule also provides flexibility for the motor carrier industry and drivers. If necessary, a driver can work a 21-hour “day” by driving for 11 hours, taking 10 hours off duty, using no other on-duty time, and then resuming driving again. This compressed schedule may be useful to address operational demands. We doubt drivers will use it regularly, however, because their workload requires on-duty activities such as loading and unloading, completing paperwork, fueling, daily vehicle inspections, and dispatch call-ins beyond the 11-hour driving period. But when the 21-hour cycle is used, it is considerably less disruptive to the body's circadian rhythms than the 18-hour “day” allowed by the old hours-of-service rules (10 hours of driving followed by 8 hours off duty). We invite comments on the safety and health effects of the 21-hour cycle, especially as compared to the 18-hour cycle allowed under the old rule.

Among other dicta included in its Public Citizen decision, the D.C. Circuit questioned whether FMCSA's argument that additional off-duty time and a 14-hour driving window justified a one-hour increase in total driving time. The court suggested the agency lacked supportive scientific evidence to support allowing an additional hour of driving per “day.”

Each driver should have an opportunity for 8 consecutive hours of uninterrupted sleep every day. Nine hours off duty were originally required in 1937. For various reasons, organized labor objected to most of the original regulations, and upon further deliberation, the ICC reduced the 9-hour off-duty period to 8 hours in each 24 hours (6 M.C.C. 557, July 12, 1938). In 1962, the hours-of-service rule was changed to move away from a strict 24-hour period, and allow driving to resume again after 8 hours off-duty regardless of whether a new “day” (24-hour period) had begun. FMCSA's final rule of April 2003, required a minimum of 10 consecutive hours off duty. This was a result of the concern that many carriers were not providing drivers more than the minimum 8 hours off duty (although the previous regulation allowed them to do so) and that many drivers accept tight schedules without objection. These drivers also had to commute home, eat one or two meals, care for family members, bathe, get physical exercise, and conduct other personal activities, all within an 8-hour off-duty period. To afford the driver an opportunity to obtain a minimum period of 8 hours of sleep, research showed that the off-duty period needed to be increased from 8 hours to 10 hours.

Studies in aviation (Gander, et al. (1991)), rail (Thomas et al. (1997), Moore-Ede et al. (1996)), and maritime environments (U.S. Coast Guard Report No. CG-D-06-97, U.S. Coast Guard (1997) (MCS 68/INF.11)) confirmed the need for additional off-duty time. Studies of truck drivers, including Lin et al. (1993) and McCartt et al. (1995), point specifically to increased crash risk and recollections of increased drowsiness or sleepiness after fewer than nine hours off duty. Studies performed in laboratory settings, as well as studies assessing operational situations, explore the relationships between the sleep obtained and subsequent performance (Dinges, D.F., & Kribbs, N.B. (1991); Bonnet, M.H., & Arand, D.L. (1995); Belenky, G., et al. (1994); Dinges, D.F., et al. (1997); Pilcher, J.J., & Hufcutt, A.I. (1996); Belenky, G., et al. (1987)). The results of the studies show that a person who is sleepy is prone to perform more poorly on tasks requiring vigilance and decision-making than a person who is alert. The time when sleep is taken is important as well because sleep fragmentation can be a byproduct of the timing or the quality of the sleep environment (Bonnet, M.H. (1994); Roehrs, T., Zorick, F., & Roth, T. (1994); Mitler, M.M., et al. (1997)); and Wylie, D. (1998)). It is virtually impossible to get an adequate amount of sleep when time for commuting, meals, personal errands, and family/social life is subtracted from an 8-hour off-duty period, as the ICC found in 1937. Wylie et al. (1996) also addresses these issues.

Request F-1-1. What are the impacts on driver health, the safe operation of CMVs, and economic factors of incremental increases in maximum driving time? For example, to what extent does an increase in maximum driving time from 10 hours to 11 hours affect driver health, the safe operation of CMVs, and economic factors in the CMV industry?

Request F-1-2. What are the impacts on driver health, the safe operation of CMVs, and economic factors of incremental increases in the minimum required off-duty period? For example, to what extent does an increase in minimum off-duty time from 8 hours to 10 hours affect driver health, the safe operation of CMVs, and economic factors in the CMV industry?

Request F-1-3. What are the impacts on driver health, the safe operation of CMVs, and economic factors of incremental decreases in the “duty period” from 15 non-consecutive hours to 14 consecutive hours? For example, to what extent does a decrease in the duty period from 15 non-consecutive hours to 14 consecutive hours affect driver health, the safe operation of CMVs, and economic factors in the CMV industry?

Request F-1-4. To what extent does a reduction of the “daily” duty-period from 15 non-consecutive hours to 14 consecutive hours, and the increase in minimum off-duty time from 8 hours to 10 hours, offset the increase in allowable driving time from 10 hours to 11 hours in terms of driver health, the safe operation of CMVs, and economic factors in the CMV industry? Are there clinical or other studies examining the impact on driver health and the safe operation of CMVs of up to 11 hours of limited physical activity, such as driving for up to 11 hours?

Request F-1-5. How has the length of a driver's total daily work period changed under the new rules? How long was the typical total workday, from start to finish, under the former rule compared to the new 14-consecutive-hour rule?

Few research studies address the effect of recovery periods between work periods spanning multiple days. O'Neill et al. (1999) [referenced in the 1999 Literature Review] assessed the interactions between several trucking industry operating practices and driver fatigue-related performance decrements. The activities studied were: loading and unloading freight; the amount of non-duty time (“rest and recovery”) required to reestablish baseline fitness for duty at the end of a multiday series of work shifts; and a sustained schedule consisting of 14 hours on duty and driving time followed by 10 hours off duty. The study design included two days of orientation; five 14-hour days (7 a.m. to 9 p.m.) followed by 58 hours off; five more 14-hour days and a second 58-hour period off; and a final 14-hour day. The 14-hour duty periods included three scheduled breaks totaling approximately two hours. The study participants alternated periods of driving a high-fidelity fixed base simulator with performance of a physical loading task. The researchers reported the drivers did not appear to have accumulated significant sleep loss during the study but their amount of measured sleep increased and their sleep latency decreased on their first off-duty days. The researchers suggested, among other things, that a full two nights and one day off (that is, “Friday night” to “Sunday morning”—about 32 hours off duty) would be a minimum safe restart period, under the conditions tested. They also stated, as a caveat, that results of this study may not be generalized to operations that are not day shifts, have shorter post-shift off-duty periods, have few or no breaks during the duty period, or vary from what the driver is accustomed to in terms of circadian disruptions or longer-than-usual on-duty periods.

On the other hand, not all research studies have reached the same conclusions. Wylie, C.D., et al. (1997) [referenced in Freund, 1999] stated the following in the Abstract of their study report:

Smiley, A., & Heslegrave, R. (1997) found only one study (Wylie et al. , 1997) that specifically dealt with an operational schedule that would be permitted under a 36-hour reset scenario. The authors state this is mainly because such a short reset period would result in schedules that would exceed current hours-of-work regulations in most countries. They note that Wylie and his co-authors, as well as the reviewers, considered data from this study to be more suggestive of trends because of the small number of subjects and the fact that sleep during recovery periods was not recorded using full polysomnography (as were the sleep periods during the work periods). They cited several other scientific studies dealing with recovery time. The results of these studies and CMV driver hours-of-service requirements may or may not be related. For example, a 1967 study by Lille suggested that a single day off was insufficient for night workers to recover after a sleep debt accumulated over five days. Other studies indicated a preference for a three-day rest period compared to a two-day period after three 12-hour night shifts; a preference for two days and three days off over one day off when comparing automatic brakings experienced by locomotive engineers; and a 1994 literature review indicating two nights of recovery sleep as usually being sufficient to allow near full recovery after extended periods of sleep loss.

Under both the old and new hours-of-service regulations, most drivers are prohibited from driving after reaching a maximum 60 hours of on-duty time in any consecutive 7-day period, or 70 hours in 8 days. A driver working the current maximum 14-consecutive-hour duty period without a break and taking the minimum 10 hours off duty would reach the 60-hour on-duty limit in slightly less than 4 1/2 days (4 1/2 days × 14 hours = 63 hours), after which he or she could not drive a CMV until enough calendar days had passed to bring the driver within the 60-hours-in-7-consecutive-days limitation. In this example, the driver could only drive 4 hours on the fifth day (60 − (14 × 4) = 4) and would then have to take an additional 2 full days off duty to fall within the limit of 60 hours in any 7 consecutive days. This results in nearly 3 days of required off-duty time.

A fairly common misunderstanding is the belief that the hours-of-service rule establishes a limit on the number of hours a driver may work in any time period. The rule only limits the driver's ability to drive a CMV after a certain number of hours of work or driving. In other words, the driver may work unlimited hours, but may not drive a CMV unless he or she is within hours-of-service limits. For example, on a Friday night a driver has reached the 60-or 70-hour on-duty limit within 7 or 8 consecutive days. On a Friday night, Saturday, and indefinitely thereafter, this driver could continue to perform non-driving duties without being in violation of the hours-of-service rule. However, before the driver could operate a CMV, the driver would have to be completely off-duty for enough days to bring the total on-duty hours within any 7- or 8-consecutive days under the 60- or 70-hour limits.

As a matter of background, section 345 of the National Highway Designation Act of 1995 [Pub. L. 104-50, 109 Stat. 568] created a “24-hour restart” exemption from the 60- and 70-hour rules for drivers of utility service vehicles, CMVs transporting ground-water well drilling rigs, and construction materials and equipment. This exemption is still in effect.

In 49 CFR 395.3(c) FMCSA added a “restart provision” which allowed any 7- or 8-day period to end with the beginning of any off-duty period of 34 or more consecutive hours. In other words, at any point before exceeding the 60/70-hour limit, a driver may restart the 60/70-hour clock (or calculation) after taking 34 or more consecutive hours off duty. Consistent with previous interpretations of the 60/70-hour rule, FMCSA interprets this provision to mean that if the driver exceeded the 60 or 70 hours on duty, he or she could not start the 34-hour restart period until enough calendar days had passed to bring the driver within the 60 hours in 7 consecutive days (or 70 hours in 8 days) limitation. The 34-hour restart provides an option that permits the driver to have enough time for two uninterrupted periods of 8 hours sleep before returning to work in a new multi-day duty period. However, it also allows a driver to drive more hours and be on duty more hours before driving is prohibited in a 7- or 8-day period, as shown in the table below.

This table is based on two hypothetical scenarios. The first is a daily schedule in which the driver drives continuously for the maximum allowable time (11 hours). The second is a daily schedule in which the driver is on-duty/not-driving continuously for the maximum allowable time (14 hours of which 11 are driving). In each case, the driver takes only the minimum required off-duty (10 hours) period and, prior to reaching the 60/70 hour limit, the driver invokes the 34-hour restart provision and resumes the scenario of maximizing driving and on-duty time for the remainder of the 7/8 day period.

The 60/70-hour limitation helps prevent a driver from developing severe, cumulative fatigue and sleep deprivation when working and driving the maximum “daily” limits for an extended period. However, at times this provision may require the driver to remain off duty for longer periods of time than necessary to gain adequate restorative sleep. This occurs because the rule refers to the maximum hours on duty in a certain number of “days.” The hours worked in the prior 7 or 8 consecutive days and the hours available to work in a future 7-or 8-consecutive-day period are re-calculated at midnight when a new “day” begins. As noted previously, the restart provision avoids this limitation by permitting the driver to “restart the 60/70 hour clock” after having 34 or more consecutive hours off duty, which would afford two uninterrupted periods of 8 hours sleep before returning to work in a new multi-day duty period.

The D.C. Circuit criticized FMCSA for not even acknowledging, much less justifying, that the new rule “dramatically increases the maximum permissible hours drivers may work each week” Public Citizen , at 1222-1223. As shown in the table above, the restart increases the total hours of permissible on-duty time in a 7-day period, after which a driver may not drive a CMV, from 60 hours to 84 hours. It also increases the maximum driving time permitted in a 7-consecutive-day period (from 60 hours to 77 hours). Also as shown in the table above, the restart increases the total hours of permissible on-duty time in an 8-day period, after which a driver may not drive a CMV, from 70 hours to 98 hours. It also increases the maximum driving time permitted in an 8-consecutive-day period (from 70 hours to 88 hours).

In the 2003 final rule, the agency explained its rationale for the adoption of the 34-hour restart period. In essence, studies indicated that cumulative fatigue and sleep debt can develop over a weekly period, and at least two full periods of sleep are needed to “restore” a driver to full alertness. The agency determined that the 34-hour restart period, based on a full 24-hour period plus an additional 10-hour period available for sleep, was the minimum restart which would provide adequate restorative rest.

The 34-hour restart was also seen in the 2003 final rule as a flexible alternative to the “mandatory weekend” proposed in the 2000 NPRM. Not all motor carrier operations work on a “fixed and recurring 7-day period,” instead having intense days of work followed by slack times. Other operations can be disrupted by weather. The 34-hour restart allows motor carriers and drivers the option of restorative rest during the times work is not available or is interrupted.

The agency is seeking research and other data to further ascertain the effects of a 34-hour restart period on safety and driver health, and whether 34 hours is the appropriate length of time for a restart, compared to periods ranging from 24 hours (as in the NHS Act) to more than 34 hours. The agency is also reviewing the alternative of eliminating the restart provision, or of implementing it in a different way, such as limiting its use within a given time period, so as to preclude a driver accumulating an excessive amount of on-duty time before driving.

Request F-2-1. What effect has the 34-hour restart had on driver fatigue and the ability to obtain restorative sleep? Is a 34-consecutive-hour off-duty period long enough to provide sufficient restorative sleep regardless of the number of hours worked prior to the restart? Is it different for a driver working a night or irregular schedule? What length of continuous off-duty time provides adequate opportunity for most drivers to obtain 8 hours of sleep per day?

Request F-2-2. How many drivers (or what percentage of the current driver population) are currently using the 34-hour restart option to accumulate more than 60 or 70 hours of driving time in any consecutive 7-or 8-day period? How consistently are they using this option? On the average, how many hours of driving are they accumulating in 7 or 8 consecutive days? How many drivers, or what percentage of the current driver population, are currently logging 11 hours of daily driving on a consistent basis; i.e. , the drivers consistently driving the maximum permissible driving time?

Request F-2-3. If a driver has already exceeded 60 hours on duty in 7 days, or 70 hours in 8 days, should the driver be permitted to utilize the 34-hour restart at any time, or should the driver be required to take enough days off duty to be in compliance with the 60/70 hour provision before starting the restart period?

Request F-2-4. What would be the impact on the industry of eliminating the 34-hour restart option relative to productivity, annual revenues, and operational costs such as labor, capital, and other? How many additional drivers does the industry anticipate it would need to hire to absorb the loss in weekly driving hours incurred if the 34-hour restart period was increased? Eliminated?

Request F-2-5. What would be the safety impact of eliminating the 34-hour restart option in terms of crashes, fatalities, and injuries?

Request F-2-6. What would be the impact on driver health of modifying or eliminating the 34-hour restart option? How would the modification or elimination of the 34-hour restart period affect driver health and the safe operation of CMVs, as a result of its effect on the 24-hour cycle (circadian rhythms)?

Historically, the sleeper berth is widely used by commercial vehicle operators to obtain rest and restore available hours, making it legal to drive without having to take 10 consecutive hours off duty. The regulation of sleeper berth use was first considered by the ICC under the Motor Carrier Act of 1935. At that time and since, the economic and operational advantages of sleeper berths in some segments of the trucking industry have been recognized. In one of its first hours-of-service decisions, the ICC in 1937 discussed the economic need for sleeper-berth use, but stated, “We shall watch this matter closely and if we see any tendency on the part of the carriers to use sleeper cabs where such use does not appear to be reasonably necessary, steps will be taken to put limits upon this practice” (3 M.C.C. 689).

Under the 2003 final rule, drivers are permitted to accumulate the mandatory off-duty period in four ways: (1) A minimum of 10 consecutive hours off duty, (2) a minimum of 10 consecutive hours in a sleeper berth, (3) a minimum of 10 consecutive hours in any combination of off-duty and sleeper-berth periods, or (4) two sleeper-berth periods totaling 10 or more hours, with neither period being less than 2 hours.

The split-sleeper-berth provision of the 2003 final rule only permits a combination of two sleeper-berth periods for the purpose of accumulating the required 10 hours off duty. A sleeper-berth period may only be excluded in calculating compliance with the 14-hour rule when it is combined with a second qualifying sleeper-berth period. Another way of stating this is that a single sleeper-berth period of less than 10 consecutive hours is included in calculating the 14-hour tour-of-duty provision. Thus, for a driver who starts the day at 5 a.m., and later takes one sleeper-berth break for a few hours around noon, the 14-hour duty period would still end at 7 p.m. The single sleeper-berth period cannot be excluded from calculation of the 14-hour limitation.

Informal communications with drivers and carriers indicate that this limitation may create a hardship on drivers and may encourage them to avoid taking rest breaks during the duty period. Under the previous rule, drivers could exclude off-duty periods, such as “breaks” during the day, from the 15-hour on-duty maximum. Under the current rule, the 14-hour duty period represents consecutive hours, meaning that drivers may avoid breaks and meals in an attempt to accomplish as much work or travel as far as possible in the 14 hours allowed. This is in contrast to the indefinite period allowed under the old rule, because there was no maximum amount of off-duty breaks which could be taken during the duty “day.”

The use of a split-sleeper-berth period affects calculation of the maximum 11-hour driving time, 14-hour limitation, and the 60/70-hour limitation. Because sleeper-berth periods may be taken by a driver at any time, the calculations to determine whether a driver is in compliance may be very difficult. In other words, a “real world” series of logbook pages may reflect that the driver has taken a variety of sleeper-berth periods, as well as other on-duty and off-duty periods. The way in which these periods interact to determine the hours available for driving, or hours available under the 14-hour limitation, can be very complex, and has required the agency to issue extensive interpretations. Training of drivers and enforcement personnel regarding the new rule has reportedly been very difficult due to the complexities involved. Vendors of computer software for monitoring hours-of-service compliance have reported difficulty in programming their software to consistently calculate compliance. They have advised the agency that the current regulatory language, even with extensive interpretations and guidance, does not necessarily provide answers to every scenario that may develop. Enforcement personnel have also reported difficulty in calculating compliance during a roadside inspection when split-sleeper-berth periods are used. For example, at the time of inspection a driver may have only taken one sleeper-berth period and could appear to be in violation of one or more limitations. However, compliance would depend on whether the driver later takes a second combinable sleeper-berth period. Determining compliance based on potential future actions of the driver may create confusion and inconsistency, and needs to be addressed in this rulemaking.

FMCSA will consider a variety of possible changes to the sleeper-berth provisions, including but not limited to: (1) Not permitting any split sleeper-berth use to count toward the minimum 10-hours off duty, (2) allowing one continuous sleeper-berth period of less than 10-hours, such as 8 hours, to substitute for the otherwise minimum 10 hours, (3) eliminating split-sleeper-berth periods or establishing a minimum time for one of the two “splits,” such as 5 hours, 8 hours, or some other appropriate level, (4) revising the manner in which sleeper-berth periods affect the calculation of the 14-consecutive-hour period, and (5) restricting variations on permissible sleeper-berth use to team drivers only.

On November 3, 2003, the American Trucking Associations (ATA) submitted a petition for rulemaking to FMCSA, requesting that the hours-of-service rule be modified to permit a driver to extend the 14-hour on-duty period by the use of one sleeper-berth period of a minimum 2 hours duration, provided the on-duty period is followed by a minimum 10-consecutive-hour off-duty period. A copy of the ATA petition is filed in the docket for this rulemaking, and the subject matter of the ATA petition will be addressed in this rulemaking.

Request F-3-1. Does sleeping in a sleeper berth, either in a moving or stationary vehicle, have a detrimental effect on driver health and the safe operation of CMVs? What are the obstacles to getting adequate sleep in a sleeper berth? Does using a sleeper berth in a moving or stationary CMV yield less restorative sleep (qualitatively or quantitatively) than sleeping in a bed at home or at a motel? How do in-vehicle temperature fluctuations due to “no-idling” laws, and other environmental issues, impact sleeper-berth use?

Request F-3-2. What is the minimum time in each of two split-sleeper-berth periods necessary to provide restorative sleep? What is the impact of split-sleeper-berth periods on driver health and his or her ability to obtain restorative sleep and manage fatigue? How often is a single, continuous 10-hour sleeper-berth period used? How often are consecutive off-duty time and a single sleeper-berth period ( i.e. , no split-sleeper-berth use) combined to meet the minimum 10-hour off-duty requirement?

Request F-3-3. How often are split-sleeper-berth periods used to obtain the required 10 or more hours of off-duty time? In a split-sleeper-berth operation, how much time is usually spent in the sleeper berth during a typical period? How are split-sleeper-berth periods managed ( i.e. , number of hours in each of the two periods)? Why? How does this provide restorative sleep or prevent sleep deprivation?

Request F-3-4. What impact does team drivers' use of sleeper berths have on driver health, safe operation of CMVs, and economic factors and how do such impacts differ from impacts on single drivers?

Request F-3-5. If the agency were to eliminate the split-sleeper-berth exception and require a driver to take 10 consecutive hours off duty (in a sleeper berth, or in combination with off-duty time), what impact would this have upon driver health, the safe operation of CMVs, and business operating practices?

Request F-3-6. If the agency were to retain the split-sleeper-berth provision, but require that one of the two periods be at least 7, 8, or 9 hours in length, what impact would this action have on driver health, the safe operation of CMVs, and economic factors? If one period is 7 or more hours in length, is that equivalent to 10 consecutive hours of non-sleeper-berth off-duty time (since little commuting and personal time would be needed, allowing a greater percentage of the off-duty period for sleep), or would a second sleeper-berth period still be required?

Request F-3-7. What time and costs are saved by utilizing a sleeper berth rather than commuting to other sleep locations such as home or a motel, and what portion of the time saved is actually spent sleeping?

Request F-3-8. How does prohibiting extension of the 14-hour tour of duty through the use of a single sleeper-berth period affect driver health, safe operation of CMVs, and economic factors? How could allowing the use of a limited sleeper-berth period to extend the 14-hour limitation be accomplished without having a detrimental effect on highway safety? What would be the appropriate length of such a limited sleeper-berth rest period?

Request F-3-9. If the current hours-of-service rules are generally retained “as is,” do you have any suggestions to simplify the sleeper-berth calculations, yet provide the same or better levels of driver health, safety, and operational flexibility? How could the sleeper-berth provisions be modified or more clearly stated to simplify calculations but not have a negative impact on driver health, safety, and operational considerations?

Request F-3-10. Should the rule allow sleeper-berth periods to be combined with off-duty periods when calculating a continuous off-duty period? Should a sleeper-berth period that is part of a period of 10 or more consecutive hours off duty also be combinable with a later sleeper-berth period to allow a split-sleeper-berth calculation?

As indicated above, on September 1, 2004 (69 FR 53386), FMCSA published an ANPRM requesting information about the use of electronic on-board recording devices as a substitute for paper copies of driver records of duty status (“logbooks”). As the agency said in the preamble to that document, “FMCSA is attempting to evaluate the suitability of EOBRs to demonstrate compliance with the enforcement of the hours-of-service regulations, which in turn will have major implications for the welfare of drivers and the safe operation of commercial motor vehicles.” The ANPRM requested comments and information on EOBR performance specifications and the potential costs and benefits of such devices.

Request F-5-1. Please provide supplemental information or data on any topic discussed in this NPRM that could augment existing information for a final rule or other agency action regarding hours of service in the future. Are there “gaps” in available data? Describe the substantive nature of any data or information that you believe is necessary to support a particular requirement but does not exist. Explain what the ideal data or information set would contain. Include a discussion not only of the individual requirements of the current rule, but also of the interrelationships among those requirements and their impact on driver health, the safe operation of CMVs, and economic factors. In addition, suggest processes, methodologies, and sources that would facilitate the collection and analysis of data on the topic or topics. In responding here, commenters are requested to provide data and other information in the context of driver hours-of-service requirements and the incremental changes from the old rule to the new rule.

Request F-5-2. What has been the effect of the new hours-of-service regulations upon CMV-related crashes? Please provide detailed information, if available.

Request F-5-3. What has been and will be the effect of CMV improved or reduced driver compliance as a result of the changes made by the new hours-of-service rules? Have CMV drivers become more or less compliant with the regulations?

For local short-haul drivers, driving is only part of their daily work routine. These drivers perform a variety of tasks including, but may not be limited to, receiving the day's driving schedule, driving, loading and unloading the vehicle, getting in and out of the vehicle numerous times, lifting and carrying packages, and engaging in customer relations. The research on local short-haul operations has suggested that fatigue is less of a problem than for long-haul drivers (“Impact of the Local Short Operations on Driver Fatigue,” Hanowski, R., et al. (2000) and “Short-Haul Trucks and Driver Fatigue,” Massie, D.L., et al. (1997)). Since local short-haul drivers typically work daytime hours, they are much more likely to maintain regular schedules that are less intense than many long-haul drivers. Short-haul drivers are significantly less likely to be working 13 or more hours or to have irregular circadian patterns. Also, local short-haul drivers typically sleep at home every night in their own beds. Thus, local short-haul drivers are much more likely to be getting the daily restorative sleep necessary to maintain vigilance.

As a result, the 2003 hours-of-service rule provided a special exemption for local short-haul operations, which included those drivers who return to their normal work-reporting location on a regular daily basis. The exemption provided greater flexibility with regard to on-duty hours for local short-haul drivers. The rule provided an exception to the 14-hour limit once a week (or after a 34-hour restart period), which allows two additional non-driving hours.

Based on the data and research available at the time, FMCSA was convinced that the 14-hour limit for most drivers, with a 16-hour limit for short-haul drivers once a week, is materially better from a safety standpoint than the earlier hours-of-service rule. Drivers under the old rule could extend their daily working well beyond the allowed 15-hour limit, because of “off-duty” breaks, meals, and weather-related conditions. The added two hours of work time once a week could be productively used by the short-haul segment to meet peak demands, accommodate training, and complete required recordkeeping.

For these reasons, FMCSA is proposing to continue the local short-haul exemption.

Because FMCSA is reexamining the hours-of-service regulations for drivers and operators of property-carrying CMVs that were published on April 28, 2003 (68 FR 22456) and amended on September 30, 2004 (68 FR 56208), the rulemaking analyses and notices, and regulatory language accompanying that final rule (see 68 FR 22505-22513) remain applicable to this NPRM and are not being fully reprinted in this notice.

In the Regulatory Impact Analysis (RIA) to the 2003 final rule, FMCSA evaluated three alternative proposals for the hours-of-service rule. The alternative that was adopted and became the 2003 final rule was referred to in the RIA as the “FMCSA Proposal.” The full text of the RIA that was prepared for the 2003 final rule is located in that docket (FMCSA-1997-2350-23302) and the docket to this rulemaking.

FMCSA has determined that this rulemaking constitutes an economically significant regulatory action under Executive Order 12866 because the agency estimates this action will have an annual effect on the economy of $100 million or more. This is the effect of the change from the hours-of-service rule prior to 2003, compared to the current rule published in 2003, which is being reexamined in this NPRM. FMCSA has also determined that this regulatory action is significant under the regulatory policies and procedures of DOT because of the high level of interest concerning motor carrier safety issues expressed by Congress, motor carriers, their drivers and other employees, State governments, safety advocates, and members of the traveling public. Finally, FMCSA has determined that this regulatory action is a major rule under the Congressional Review Act, 5 U.S.C. 801 et seq.

The RIA for the final rule published on April 28, 2003 (Docket FMCSA-1997-2350-23302), estimated net social benefits to be $1.1 billion annually, when compared to the previous hours-of-service rules with full compliance. Alternatively, when compared to the previous rules under an assumption of less than full compliance, the current rule results in annual net social benefits of -$611 million. When assuming less than full compliance by industry with the previous hours-of-service rules, total annual costs of the new rules equal approximately $1.3 billion. For major rules involving annual economic effects of $1 billion or more, the Office of Management and Budget requires several new issues to be considered as part of the RIA (OMB Circular A-4, published September 17, 2003). Most notably, the RIA must present a formal quantitative analysis of the relative uncertainties concerning particularly important benefit and cost elements of the rule. Additionally, a cost-effectiveness analysis is required for all major rulemakings for which the primary benefits are improved public health and safety, where valid effectiveness measures can be developed. As such, FMCSA has prepared these two supplemental analyses to the RIA and will include them in the docket to this rulemaking.

The original RIA that accompanied the 2003 final rule has not been changed or reprinted, but answers to the following questions would help FMCSA to prepare the new RIA that will be required when the agency adopts a final rule.

Request G-1-1. What changes have been made by shippers and carriers to adjust to the 14-hour rule? What was the cost of those changes? What would be the additional costs if the 14-hour rule were changed again? Has the loading and unloading of CMVs become more or less efficient as a result of the 14-hour rule? What has been the economic impact of this change?

Request G-1-2. What has been the economic impact of the new regulations on all segments of the motor carrier industry? For example, have motor carrier revenues and shipping costs increased or decreased as a result of the new hours-of-service regulations?

Request G-1-3. What costs have been incurred in re-training personnel to understand the new hours-of-service rule?

Request G-1-4. What is the impact of the driver wage structure (either per mile or per hour) on the hours driven and/or health and safety of drivers under the new rule?

Request G-1-5. How many, or what percentage of, motor carriers provide health insurance for their drivers? If not covered by their employer, how many drivers currently purchase their own health insurance? How many are uncovered? If the agency reduced the driving time allowed by the 2003 rule, or shortened the daily or weekly on-duty period during which driving is allowed, would motor carrier revenues and/or profits be sufficient to sustain employer-provided health insurance? At what point, in terms of regulatory limits, would employers curtail or end such health insurance? At what point would shorter driving times or on-duty windows reduce driver income enough to make health insurance unaffordable?

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), requires Federal agencies to analyze the impact of rulemakings on small entities, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. In its analysis for the April 28, 2003, final rule, FMCSA determined that while large numbers of small entities would be affected with regard to their short-haul operations, no significant economic impacts were projected for a substantial number of small entities.

Although the RFA section of the 2003 final rule is not being changed or reprinted, answers to the following questions would help FMCSA to prepare the small-business impact analysis that will be required when the agency adopts a final rule.

Request G-2-1. Since implementation of the 2003 final rule starting in January 2004, what has been the impact on small motor carriers (those with less than $21.5 million in annual revenues) with short-haul operations , specifically with regard to your revenues and costs (labor, capital, and other)? In responding to this question, please be specific as to the period for which the revenue and cost impacts are being measured ( e.g. , monthly, biannual, or six months). In addition, please indicate whether you are a truckload or less-than-truckload (LTL) carrier (or drive for one), a private or for-hire motor carrier (or drive for one), and those commodities you haul most frequently.

Request G-2-2. Since implementation of the 2003 final rule, what has been the impact on small motor carriers (those with less than $21.5 million in annual revenues) with long-haul operations , specifically with regard to your revenues and costs (labor, capital, and other)? In responding to this question, please be specific as to the period for which the revenue and cost impacts are being measured ( e.g. , monthly, biannual, or six months). Please indicate whether you are a truckload or LTL carrier (or drive for one), a private or for-hire motor carrier (or drive for one), and those commodities you haul most frequently.

Request G-2-3. For small motor carriers with short-haul operations, please provide a breakdown of the cost changes resulting from implementation of the 2003 final rule. For example, please separate cost increases or decreases by changes in labor costs ( e.g. , driver salaries and fringe benefits), capital or equipment costs ( e.g. , recent purchase or sale of tractors and trailers), and other capital ( i.e. , infrastructure) or operating costs. Please indicate whether you are a truckload or LTL carrier (or drive for one), a private or for-hire motor carrier (or drive for one), and those commodities you haul most frequently.

Request G-2-4. For small motor carriers with long-haul operations, please provide a breakdown of the cost changes resulting from implementation of the 2003 final rule. For example, please separate cost increases or decreases by changes in labor costs ( e.g. , driver salaries and fringe benefits), capital or equipment costs ( e.g. , recent purchase or sale of tractors and trailers), and other capital ( i.e. , infrastructure) or operating costs. Please indicate whether you are a truckload or LTL carrier (or drive for one), a private or for-hire motor carrier (or drive for one), and those commodities you haul most frequently.

The Unfunded Mandates Reform Act of 1995 requires each agency to assess the effects of its regulatory actions on State, local, and tribal governments and the private sector. Any agency promulgating a final rule resulting in a Federal mandate requiring expenditure by a State, local, or tribal government or by the private sector of $120.7 million or more in any one year must prepare a written statement incorporating various assessments, estimates, and descriptions that are delineated in the Act. The hours-of-service final rule published in 2003 and being reexamined in this NPRM is a major rule that costs motor carriers more than $120.7 million in a given year. FMCSA has prepared the following statement which addresses each of the elements required by the Unfunded Mandates Reform Act of 1995 (UMRA).

The UMRA requires a qualitative and quantitative assessment of the anticipated costs and benefits of this Federal mandate. The 2003 final rule evaluated several proposals, including an “FMCSA Staff” option. Relative to the previous rules with full compliance, the FMCSA option was estimated to result in a cost savings of approximately $900 million per year. Benefits under this “full compliance” scenario were estimated to be approximately $200 million per year, resulting in net benefits of $1.1 billion per year. The final rule does not impose any cost on State, local, or tribal governments.

The UMRA also requires FMCSA to discuss the effect of the Federal mandate on health, safety, and the natural environment. FMCSA prepared an environmental assessment for the 2003 final rule, which was placed in the docket (FMCSA-1997-2350-23303), and is also in the docket to this rulemaking, showing that the rule would not have a significant impact on the natural environment. The effects of the rule on health and safety are much more significant: the primary benefit of the 2003 final rule (and thus of this reexamination) was a reduction in accidents. The RIA that accompanied the 2003 final rule explains these estimates in detail in Chapters 8 and 9.

Section 202(a)(2)(A) of the UMRA requires that this qualitative and quantitative assessment of costs and benefits include an analysis of the extent to which costs to State, local, and tribal governments may be paid with Federal financial assistance or otherwise paid for by the Federal Government. Since this rulemaking action is applicable only to motor carriers subject to the Federal Motor Carrier Safety Regulations (FMCSRs), there would be no cost to State, local, and tribal governments. Therefore, no Federal funds for these entities would be necessary for motor carriers to comply with the requirements. All States, however, receive Motor Carrier Safety Assistance Program (MCSAP) grants requiring them to adopt and enforce most of the FMCSRs or compatible State regulations, including the 2003 hours-of-service rule.

To the extent feasible, section 202(a)(3) of the UMRA requires estimates of the future compliance costs of this rulemaking action, and any disproportionate budgetary effects upon particular regions, or upon urban, rural, or other types of communities, or upon particular segments of the private sector. The 2003 final rule, which is being reexamined here, has no disproportionate budgetary effects upon particular regions, or upon urban, rural, or other types of communities. The RIA accompanying the 2003 final rule includes an analysis of the impact of the “FMCSA Proposal” on various regions, using the REMI Policy Insight TM Model. The model showed no significant disparate impact on any region. These impacts are discussed in chapter 11 of the RIA.

Section 202(a)(4) of the UMRA requires estimates of the effect on the national economy, such as the effect on economic growth, full employment, creation of productive jobs, and international competitiveness. The REMI model mentioned above also yielded an estimate of the macroeconomic  3 costs of the options. Relative to the previous rule with 100 percent compliance, FMCSA estimated that the impact on gross regional product  4 (GRP) would be minimal, less than 0.1 percent of GRP for all the alternatives. One alternative would have reduced GRP by almost $12 billion per year, while all other alternatives would have resulted in a small increase in GRP.

Because FMCSA believed the overall driving time for most CMV drivers would not change, the agency concluded the alternatives would not have a significant impact on full employment or the creation of productive jobs. The agency also did not believe that the “FMCSA Proposal” would have any significant impact on international competitiveness.

This reexamined rule does not require action by State, local, or tribal governments. Therefore, no prior consultations with elected representatives of these governments were initiated.

When Congress created FMCSA, it provided that, “[i]n carrying out its duties the Administration shall consider the assignment and maintenance of safety as the highest priority * * *” [49 U.S.C. 113(b)]. As indicated above, section 408 of the ICCTA directed the agency—then part of FHWA—to begin a rulemaking dealing with a variety of fatigue-related safety issues, including “8 hours of continuous sleep after 10 hours of driving, loading and unloading operations, automated and tamper-proof recording devices, rest and recovery cycles, fatigue and stress in longer combination vehicles, fitness for duty, and other appropriate regulatory and enforcement countermeasures for reducing fatigue-related incidents and increasing driver alertness * * *” [109 Stat. 958]. The agency's statutory focus on safety and the specific mandate of section 408 both demanded that the 2003 final rule improve CMV safety.

The 2003 final rule, which is being reexamined, represents a substantial improvement in addressing driver fatigue over the previous rule. Together, the provisions are expected to reduce the effect of cumulative fatigue and prevent many of the accidents and fatalities to which fatigue is a contributing factor. Because the agency's statutory priority is safety, FMCSA adopted a rule that was marginally more expensive than other alternatives but would reduce fatigue-related accidents and fatalities more substantially, even though it imposes an unfunded mandate.

FMCSA analyzed the alternatives discussed in the RIA accompanying the 2003 final rule as required by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and DOT Order 5610.1C. As shown in Table 25 of the 2003 final rule preamble (Environmental Assessment), none of the alternatives had a significant adverse impact on the human environment and all of the alternatives had beneficial impacts in some areas. None of the alternatives stood out as environmentally preferable, when compared to the other alternatives. This environmental assessment and finding of no significant impact (FONSI) for the 2003 final rule are in the docket for that rule (FMCSA-1997-2350-23303), as well as in the docket to this rulemaking. The National Environmental Policy Act (NEPA) section of the 2003 final rule preamble is not being changed or reprinted here. However, to assist the agency in preparing the NEPA analysis that will be required when the agency adopts a final rule, FMCSA requests comments.

Request G-4-1. What impact would the possible changes to the 2003 final rule discussed in this NPRM have on the environment?

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ), 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 this NPRM will affect a currently approved information clearance for OMB Control Number 2126-0001, titled “Hours of Service of Drivers Regulation.” OMB approved this information collection on April 29, 2003, at a revised total of 160,376,492 burden hours, with an expiration date of April 30, 2006. The PRA requires agencies to provide a specific, objectively supported estimate of burden that will be imposed by the information collection. See 5 CFR 1320.8. The paperwork burden imposed by FMCSA's record-of-duty-status (RODS) requirement is set forth at 49 CFR 395.8.

The agency believes that the possible revisions to the 2003 final rule discussed in this NPRM will not bring about an appreciable change in the paperwork burden to the estimated 4.2 million drivers required to complete and maintain the RODS, which is commonly referred to as a “logbook.” This NPRM and a supporting statement reflecting this assessment have been submitted to OMB. You may submit comments on this directly to OMB. OMB must receive your comments by March 10, 2005. You must mail or hand deliver your comments to: Attention: Desk Officer for the Department of Transportation, Docket Library, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, 725 17th Street, NW., Washington, DC 20503.

FMCSA analyzed the 2003 final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. As a part of the Environmental Assessment, FMCSA analyzed the alternatives discussed in the preamble to the 2003 final rule. Table 26 of that final rule preamble showed the energy consumption effects of the alternatives. From a national energy consumption perspective, the FMCSA alternative, which was adopted and is being reexamined in this NPRM, had essentially a net zero effect on national energy consumption. FMCSA does not consider this effect to be significant.

In accordance with Executive Order 13211, the agency prepared a “Statement of Energy Effects” for the 2003 final rule. A copy of this statement is in Appendix D to the Environmental Assessment of the 2003 final rule (Docket FMCSA-1997-2350-23303).

FMCSA evaluated the environmental effects of the alternatives discussed in the 2003 final rule in accordance with Executive Order 12898 and determined that there were no environmental justice issues associated with revising the hours-of-service regulations. Environmental justice issues would be raised if there were “disproportionate” and “high and adverse impact” on minority or low-income populations. FMCSA determined through the Environmental Assessment that there were no high and adverse impacts associated with any of the alternatives. In addition, FMCSA analyzed the demographic makeup of the trucking industry potentially affected by the alternatives and determined that there was no disproportionate impact on minority or low-income populations. This is based on the finding that low-income and minority populations are generally underrepresented in the trucking occupation. In addition, the most impacted trucking sectors do not have disproportionate representation of minority and low-income drivers relative to the trucking occupation as a whole. Appendix E of the Environmental Assessment provides a detailed analysis used to reach this conclusion.

Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (April 23, 1997, 62 FR 19885), requires agencies issuing “economically significant” rules to include an evaluation of their environmental health and safety effects on children, providing the agency has reason to believe the rule may disproportionately affect children. FMCSA evaluated the projected effects of the 2003 final rule and the various alternatives and determined that they would not create disproportionate environmental health or safety risks to children. The only adverse environmental effect with potential human health consequences is the projected increase in emissions of air pollutants. The final rule resulted in a minor increase in emissions on a national scale. FMCSA projects no adverse human health consequences to either children or adults because the magnitude of emission increases is small. The 2003 final rule and alternatives, however, reduced the safety risk posed by tired, drowsy, or fatigued drivers of CMVs. These safety risk improvements accrued to children and adults equally.

This action 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.

This reexamined 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 action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. FMCSA has determined the 2003 final rule, which is being reexamined here, does not have a substantial direct effect on States, nor would it limit the policymaking discretion of the States. Nothing in this document preempts any State law or regulation.

A State participating in the Motor Carrier Safety Assistance Program (MCSAP) that fails to adopt the 2003 final rule three years after its effective date (June 27, 2003) will be deemed to have incompatible regulations and will not be eligible for MCSAP Basic Program or Incentive Funds in accordance with 49 CFR 350.335(b). MCSAP has no federalism implications under Executive Order 13132.

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 NPRM.

In consideration of the foregoing, FMCSA is reexamining the amendments to 49 CFR chapter III, parts 385, 390, and 395 as set forth in the final rule on hours of service of drivers published on April 28, 2003 (68 FR 22456) and amended on September 30, 2003 (68 FR 56208). Those amendments are not being reprinted here.