This rule is issued under Marketing Agreement No. 84 and Order No. 905, both as amended (7 CFR part 905), regulating the handling of oranges, grapefruit, tangerines, and tangelos grown in Florida, 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 (Department) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Florida citrus handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable oranges, grapefruit, tangerines, and tangelos beginning August 1, 2000, and continue until amended, suspended, or terminated. This rule 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 the Secretary 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. Such handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary 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 the Secretary'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 rule increases the assessment rate established for the Committee for the 2000-2001 and subsequent fiscal periods from $0.00385 to $0.0055 per 4/5 -bushel carton or equivalent of citrus handled.

The Florida citrus marketing order provides authority for the Committee, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Florida citrus. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 1998-99 and subsequent fiscal periods, the Committee recommended, and the Department approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.

The Committee met on May 26, 2000, and unanimously recommended 2000-2001 expenditures of $255,500 and an assessment rate of $0.0055 per 4/5 -bushel carton or equivalent of citrus. In comparison, last year's budgeted expenditures were $245,425. The assessment rate of $0.0055 is $0.00165 higher than the rate currently in effect. The quantity of assessable oranges, grapefruit, tangerines, and tangelos for the 2000-2001 fiscal period is expected to be 55,000,000 4/5 -bushel cartons. The Committee projected 60,500,000 assessable 4/5 -bushel cartons of citrus for the 1999-2000 fiscal period. The actual quantity of assessable citrus for 1999-2000 is expected to be 53,500,000 4/5 -bushel cartons. Because of this shortfall, the Committee has had to use money from its authorized reserve fund to cover approved expenses. The increase in assessment rate for 2000-2001 is needed to bring the reserve fund to an acceptable level, and to cover increases in the Committee's budgeted expenditures for the 2000-2001 fiscal period.

The major expenditures recommended by the Committee for the 2000-2001 fiscal period include $118,300 for salaries, $36,000 for Manifest Department—FDACS, $19,900 for insurance and bonds, $18,500 for retirement plan, $12,450 for miscellaneous and reserve, and $10,000 for telephone. Budgeted expenses for these items in 1999-2000 were $118,300, $14,000, $19,900, $12,600, $9,075, and $9,000, respectively.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Florida citrus. Citrus shipments for the year are estimated at 55 million cartons, which should provide $302,500 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses. Funds in the reserve (approximately $111,371) will be kept within the maximum permitted by the order (one-half of one fiscal period's expenses; § 905.42).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2000-2001 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by the Department.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final 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 the 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 11,000 producers of oranges, grapefruit, tangerines, and tangelos in the production area and approximately 80 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Based on the Florida Agricultural Statistical Service and Committee data for the 1998-99 season, the average annual f.o.b. price for fresh Florida citrus during the 1998-99 season was $8.66 per 4/5 -bushel carton for all shipments, and the total shipments for the 1998-99 season were 63.6 million cartons of citrus. Approximately 68 percent of the handlers handled 93 percent of Florida citrus shipments. Using information provided by the Committee, about 60 percent of citrus handlers could be considered small businesses under the SBA definition. Although specific data is unavailable, the Department believes that the majority of Florida citrus producers may be classified as small entities.

This rule increases the assessment rate established for the Committee and collected from handlers for the 2000-2001 and subsequent fiscal periods from $0.00385 to $0.0055 4/5 -bushel carton of citrus. The Committee unanimously recommended 2000-2001 expenditures of $255,500 and an assessment rate of $0.0055 per 4/5 -bushel carton. The assessment rate of $0.0055 is $0.00165 higher than the current rate. The quantity of assessable citrus for the 2000-2001 fiscal period is estimated at 55 million 4/5 -bushel cartons. Thus, the $0.0055 rate should provide $302,500 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses. Assessment funds in excess of those needed for approved expenses will be used to increase the Committee's operating reserve.

The major expenditures recommended by the Committee for the 2000-2001 fiscal period include $118,300 for salaries, $36,000 for Manifest Department—FDACS, $19,900 for insurance and bonds, $18,500 for retirement plan, $12,450 for miscellaneous and reserve, and $10,000 for telephone. Budgeted expenses for these items in 1999-2000 were $118,300, $14,000, $19,900, $12,600, $9,075, and $9,000, respectively.

The quantity of assessable oranges, grapefruit, tangerines, and tangelos for the 2000-2001 fiscal period is expected to be much less than in previous seasons. The Committee projected 60,500,000 assessable 4/5 -bushel cartons of citrus for the 1999-2000 fiscal period. The actual quantity of assessable citrus for 1999-2000 is expected to be 53,500,000 4/5 -bushel cartons. Because of this shortfall, the Committee has had to use money from its authorized reserve fund to cover approved expenses. In an effort to recover from assessment income shortfalls in 1997-98 and 1999-2000, and to bring the reserve fund to an acceptable level, the Committee voted unanimously to increase its assessment rate.

The Committee reviewed and unanimously recommended 2000-2001 expenditures of $255,500 that included increases in administrative costs. Prior to arriving at this budget, the Committee considered information from various sources, such as the Budget Subcommittee, the Grapefruit Subcommittee, and the Regulatory Subcommittee. Alternative expenditure levels were discussed by these groups, based upon the estimated number of assessable cartons of citrus. The assessment rate of $0.0055 per 4/5 -bushel carton of assessable citrus was recommended to provide enough income to cover the Committee's estimated expenses for 2000-2001 and to increase its operating reserve. This rate is expected to generate $302,500. This is $47,000 above the anticipated expenses, which the Committee determined to be acceptable.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for the 2000-2001 fiscal period could range between $4.10 and $19.65 per 4/5 -bushel carton of oranges, grapefruit, tangerines, and tangelos. Therefore, the estimated assessment revenue for the 2000-2001 fiscal period as a percentage of total grower revenue could range between .03 and .13 percent.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the citrus production area and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 26, 2000, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This rule imposes no additional reporting or recordkeeping requirements on either small or large Florida citrus handlers. 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 Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A proposed rule concerning this action was published in the Federal Register on July 6, 2000 (65 FR 41608). Copies of the proposed rule were also mailed or sent via facsimile to all citrus handlers. Finally, the proposal was made available through the Internet by the Office of the Federal Register. A 30-day comment period ending August 7, 2000, was provided for interested persons to respond to the proposal. No comments were received.

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.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because the fiscal period began August 1 and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable citrus handled during such fiscal period, and the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis. Further, handlers are aware of this rule which was recommended at a public meeting. Also, a 30-day comment period was provided for in the proposed rule.

AD 92-01-02 , Amendment 39-39-8125 (56 FR 65824, December 19, 1991), currently requires you to accomplish the following on certain Fairchild SA226 and SA227 series airplanes:

—Modify the parking brake system; and

—Inspect (repetitively) certain landing gear brake assemblies.

The inspection requirements of AD 92-01-02 only apply to airplanes equipped with B.F. Goodrich landing gear brake assemblies, part number 2-1203-3. The FAA has received service reports on B.F. Goodrich landing gear brake assemblies, part numbers 2-1203 and 2-1203-01, that indicate these brake assemblies should also be inspected for wear.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Fairchild SA226 and SA227 series airplanes. This proposal published in the Federal Register as a notice of proposed rulemaking (NPRM) on February 16, 2000 (65 FR 7794). The NPRM proposed to supersede AD 92-01-02, Amendment 398125, by retaining the modification and inspection requirements of AD 92-01-02, and would incorporate the additional landing gear brake assemblies previously referenced.

These actions are necessary to prevent wheel brake system malfunctions. If we did not take action, this could result in a fire in the brake area.

The FAA encouraged interested persons to participate in the making of this amendment. The following presents the comments received on the proposal and FAA's response to each comment:

Two commenters state that FAA incorrectly referenced in several places the part number (P/N) 2-1203-1 B.F. Goodrich landing gear brake assemblies as P/N 2-1203-01.

We concur and have corrected all reference to this part number in the final rule.

One commenter requests that FAA revise the last sentence in paragraph 3 of the Discussion section in the NPRM to indicate that our intent is to reduce the wear and clearance limits, not focus on the inspection. The commenter states that because all brake assemblies are inspected for wear and clearance per the aircraft maintenance manual, the emphasis of the AD should be to reduce the maximum allowed clearance.

We agree with the proposed wording change and will incorporate it into the final rule as appropriate. We also concur that the focus should be on reducing the maximum allowed clearance. However, the AD must also emphasize the inspection since one of the main actions of the AD is to repetitively inspect and conduct measurements of the brake wear and clearance limits.

One commenter requests copies of the service difficulty reports on the P/N 2-1203 landing gear brake assemblies.

You may obtain service difficulty reports from: Regulatory Support Division, AFS-600, Federal Aviation Administration (FAA), P.O. Box 25082, Oklahoma City, OK 73125; Telephone: (405) 954-6501, Facsimile: (405) 954-4104.

One commenter states that, as written, the proposed AD does not apply to B.F. Goodrich brake assemblies that have been modified with Rapco PMA parts. The commenter requests that FAA change the proposed AD to reflect these parts.

We concur that the NPRM, as written, may not communicate that the action should also affect B.F. Goodrich brake assemblies modified with Rapco PMA parts. FAA policy is to not reference specific equivalent PMA parts in AD's. If the PMA parts are not equivalent and the unsafe condition applies specifically to these PMA parts, we will write the AD against these parts. However, we generally include a statement of “or FAA-approved equivalent part number(s)” after the referenced part number to account for PMA equivalent parts. The FAA inadvertently left this phrase out of the NPRM, and will add it to the final rule accordingly. If these Rapco PMA parts are installed, then the actions of this AD will apply because the parts are an FAA-approved equivalent to the B.F. Goodrich brake assemblies.

One commenter states that FAA did not take into account the effect the reduced life of the brake linings have on the cost impact of the proposed AD. We infer that the commenter wants us to change the cost impact to reflect this effect.

We concur that the reduced allowable wear life of the B.F. Goodrich brake assemblies will present a cost impact. However, we are unable to determine these associated costs because we cannot predict the usage rate of the Fairchild SA226 and SA227 series airplane fleet. Therefore, we are not changing the AD as a result of this comment.

One commenter states that FAA did not take into account the effect that the reduced wear and clearance limits would have when establishing the compliance times. The commenter suggests inspection of the brake assemblies every 50 landings because the brake life will be reduced 23.4 percent and the average life will be approximately 6 months of service.

We partially concur with the commenter's assessment of the reduced brake life. Assuming a nominal adjustment brake clearance of .0175 inches, we calculate the reduction in brake wear life to 17.7 percent instead of 23.4 percent when the maximum clearance is reduced from .300 inches to .250 inches.

The repetitive inspection compliance time interval will remain at 250 hours time-in-service (TIS), unless the clearance is .200 inches or more, but less than .250 inches. If the clearance is in this range, you would have to inspect at intervals of 75 hours TIS until the brake assembly is replaced (when the maximum clearance is .250 inches or more).

One commenter provides feedback to FAA on its initiative to improve the writing style used in regulatory documents. The initiative is based on a Presidential memorandum of June 1, 1998, which requires federal agencies to communicate more clearly with the public.

We appreciate the feedback on our initiative to better communicate with those affected by airworthiness directives. We will consider the specific ideas of the commenter, along with those that others submitted on other AD actions, in determining what changes or improvements are needed in the way we draft AD's.

We carefully reviewed all available information related to the subject presented above and determined that air safety and the public interest require the adoption of the rule as proposed except for the changes discussed above. These changes provide the intent that was proposed in the NPRM for correcting the unsafe condition and do not impose any additional burden than what was intended in the NPRM.

B.F. Goodrich Service Letter No. 1498, dated October 26, 1989, specifies maximum clearance brake wear limits of .300-inch for the B.F. Goodrich landing gear brake assemblies, part numbers 2-1203 and 2-1203-01. This AD will establish these limits at .250-inch to coincide with the wear limits on the part number 2-1203-03 landing gear brake assemblies.

The FAA estimates that 330 airplanes in the U.S. registry will be affected by this AD.

We estimate that it will take approximately 6 workhours per airplane to accomplish the modification and initial inspection, and that the average labor rate is approximately $60 an hour. Parts to accomplish the modification cost approximately $500 per airplane. Based on these figures, the total cost impact of this AD on U.S. operators is estimated to be $283,800, or $860 per airplane.

The figures above only take into account the cost of the initial inspection and do not take into account the cost of repetitive inspections. The FAA has no way of determining how many repetitive inspections each owner/operator of the affected airplanes will incur.

The only impact for those airplane owners/operators who already complied with both the initial inspection and modification requirements of AD 92-01-02 will be the cost of the repetitive inspections. The only difference between this AD and AD 92-01-02 is the addition (to the inspection requirement) of the B.F. Goodrich landing gear brake assemblies, part numbers 2-1203 and 2-1203-01.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. A copy of the final evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Combe, Inc., 1101 Westchester Ave., White Plains, NY 10604, filed a supplement to NADA 5-236 that provides for the use of Sulfodene® (2-mercaptobenzothiazole) skin medication for dogs as an aid in the treatment of hot spots (moist dermatitis) and as first aid for scrapes and abrasions. The supplemental NADA provides for revisions to labeling. The NADA is approved as of July 3, 2000, and the regulations in 21 CFR 524.1376 are amended to reflect the approval.

Approval of this supplemental NADA did not require review of any safety or effectiveness data. Therefore, a freedom of information summary is not required.

The agency has determined under 21 CFR 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Hoechst Roussel Vet, Perryville Corporate Park III, P.O. Box 4010, Clinton, NJ 08809-4010, filed a supplement to NADA 131-675 that provides for the use of Safe-Guard® (fenbendazole) 20% Type A medicated article to make Type B and Type C medicated feeds for cattle, swine, and zoo and wildlife animals. The supplemental NADA provides for the use of the approved fenbendazole Type A medicated article to make Type B and Type C medicated feeds used for the removal and control of gastrointestinal worms: Round worms, adult and larvae ( Ascaridia dissimilis ) and cecal worms, adult and larvae ( Heterakis gallinarum ), an important vector of Histomonas meleagridis (Blackhead) in growing turkeys. Also, tolerances for fenbendazole sulfone in turkey liver and muscle are established. The supplemental NADA is approved as of July 3, 2000, and the regulations are amended in §§ 556.275 and 558.258 (21 CFR 556.275 and 558.258) to reflect the approval.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this approval for food-producing animals qualifies for 3 years of marketing exclusivity beginning on July 3, 2000, because the application contains substantial evidence of the effectiveness of the drug involved, any studies of animal safety, or in the case of food-producing animals, human food safety studies (other than bioequivalence or residue studies) required for the approval of the application and conducted or sponsored by the applicant. The 3 years of marketing exclusivity applies only to the new species for which the supplemental application was approved.

The agency has carefully considered the potential environmental effects of this action. FDA has concluded that the action will not have a significant impact on the human environment, and that an environmental impact statement is not required. The agency's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Dockets Management Branch (address above) between 9 a.m. and 4 p.m., Monday through Friday.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Alpharma, Inc., One Executive Dr., P.O. Box 1399, Fort Lee, NJ 07024, filed NADA 141-155 that provides for use of BMD® (10, 25, 30, 40, 50, 60, or 75 grams per pound (g/lb) BMD), ROBENZ® (30 g/lb robenidine hydrochloride), and 3-NITRO® (45.4, 90, 227, or 360 g/lb roxarsone) Type A medicated articles to make three-way combination Type C medicated feeds containing 30 g/ton robenidine hydrochloride, 22.7 to 45.4 g/ton roxarsone, and 50 or 100 to 200 g/ton BMD for use in broiler chickens.

The combination Type C medicated feeds containing 50 g/ton BMD are used for prevention of coccidiosis caused by Eimeria tenella , E . necatrix , E . acervulina , E . brunetti , E . mivati , and E . maxima ; for increased rate of weight gain, improved feed efficiency, and improved pigmentation in broiler chickens; and as an aid in the prevention of necrotic enteritis caused or complicated by Clostridium spp. or other organisms susceptible to bacitracin. The combination Type C medicated feeds containing 100 to 200 g/ton BMD are used for prevention of coccidiosis caused by E . tenella , E . necatrix , E . acervulina , E . brunetti , E . mivati , and E . maxima ; for increased rate of weight gain, improved feed efficiency, and improved pigmentation in broiler chickens; and as an aid in the control of necrotic enteritis caused or complicated by Clostridium spp. or other organisms susceptible to bacitracin. The NADA is approved as of July 3, 2000, and the regulations are amended in §§ 558.76 and 558.515 (21 CFR 558.76 and 558.515) to reflect the approval. The basis of approval is discussed in the freedom of information summary.

Section 558.76 is also amended editorially to consolidate the cross-references for approved combinations in paragraph (d)(3) and list them in alphabetical order. Section 558.515 is amended editorially to display the conditions of use in paragraph (d) in a table format.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(2) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(8), the Coast Guard finds that good cause exists for not publishing an NPRM. Good cause exists for not publishing an NPRM due to the date the Application for Approval of Marine Event was received; there was insufficient time to draft and publish an NPRM. Further, it is a local event with minimal impact on the waterway; vessels may still transit through the western 385 yards of the 900-yard wide Hudson River during the event. The zone is only in effect for 1 1/2 hours and vessels can be given permission to transit the zone except for about 15 minutes during this time. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone. Any delay encountered in this regulation's effective date would be unnecessary and contrary to public interest since immediate action is needed to close the waterway and protect the maritime public from the hazards associated with this fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . This is due to the following reasons: it is a local event with minimal impact on the waterway, vessels may still transit through the western 385 yards of the 900-yard wide Hudson River during the event, the zone is only in effect for 1 1/2 hours and vessels can be given permission to transit the zone except for about 15 minutes during this time. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone.

The Coast Guard has received an application to hold a fireworks program on the waters of the Hudson River. This rule establishes a safety zone in all waters of the Hudson River within a 240-yard radius of the fireworks barge in approximate position 40°45′56.2″N 074°00′21.6″W (NAD 1983), about 300 yards west of Pier 84, Manhattan. The safety zone is in effect from 8:30 p.m. (e.s.t.) until 10 p.m. (e.s.t.) on Sunday, August 27, 2000. If the event is cancelled due to inclement weather, then this zone is effective from 8:30 p.m. (e.s.t.) until 10 p.m. (e.s.t.) on Monday, August 28, 2000. The safety zone prevents vessels from transiting a portion of the Hudson River and is needed to protect boaters from the hazards associated with fireworks launched from a barge in the area. Marine traffic will still be able to transit through the western 385 yards of the 900-yard wide Hudson River during this event. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone. Public notifications will be made prior to the event via the Local Notice to Mariners.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This finding is based on the minimal time that vessels will be restricted from the zone, that vessels may still transit through the western 385 yards of the 900-yard wide Hudson River during the event, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone, and advance notifications which will be made.

The size of this safety zone was determined using National Fire Protection Association and New York City Fire Department standards for 8″ mortars fired from a barge combined with the Coast Guard's knowledge of tide and current conditions in the area.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Hudson River during the times this zone is activated.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. It is a local event with minimal impact on the waterway, vessels may still transit through the western 385 yards of the 900-yard wide Hudson River during the event, the zone is only in effect for 1 1/2 hours and vessels can be given permission to transit the zone except for about 15 minutes during this time. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone. Before the effective period, we will publish this event in the Local Notice to Mariners, which is widely available to users of the river.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small entities were notified of this marine event by its publication in the First Coast Guard District Local Notice to Mariners #32 dated August 8, 2000.

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

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. This rule fits paragraph 34(g) as it establishes a safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

Internet users may access all comments received by the U.S. DOT Dockets, Room PL-401, by using the universal resource locator (URL): http://dms.dot.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

An electronic copy of this document may be downloaded using a modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at http://www.nara.gov/fedreg and the Government Printing Office's database at http://www.access.gpo.gov/nara.

On December 9, 1999, the President signed the Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Public Law 106-159, 113 Stat. 1748). The new statute established the Federal Motor Carrier Safety Administration in the Department of Transportation. On January 4, 2000, the Secretary rescinded the authority previously delegated to the Office of Motor Carrier Safety (OMCS) (65 FR 220). This authority is now delegated to the FMCSA.

The motor carrier functions of the OMCS' Resource Centers and Division ( i.e., State) Offices have been transferred to FMCSA Service Centers and FMCSA Division Offices, respectively. Rulemaking, enforcement, and other activities of the Office of Motor Carrier Safety while part of the FHWA, and while operating independently of the FHWA, will be continued by the FMCSA. The redelegation will cause no changes in the motor carrier functions and operations previously handled by the FHWA or OMCS. For the time being, all phone numbers and addresses are unchanged.

Section 4009 of TEA-21 (Public Law 105-178, 112 Stat. 107, at 405, June 9, 1998) amends 49 U.S.C. 31144 which requires the Secretary of Transportation to maintain, by regulation, a procedure for determining the safety fitness of an owner or operator of commercial motor vehicles (CMVs). Section 31144 was originally enacted by section 215 of the Motor Carrier Safety Act (MCSA) of 1984 (Public Law 98-554, 98 Stat. 2832). The FMCSA regulations at 49 CFR parts 385 and 386 already include most of the requirements of section 4009.

Section 4009 transferred the prohibitions in 49 U.S.C. 5113 to section 31144. Section 5113 was enacted by section 15(b) of the MCSA of 1990 (Public Law 101-500, 104 Stat. 1213, 1218, November 3, 1990) and prohibited motor carriers rated “unsatisfactory” from using CMVs to transport, in interstate commerce, starting on the 46th day after the rating was issued, more than 15 passengers (including the driver) or hazardous materials (HM) in quantities requiring placarding. It also prohibited Federal agencies from using “unsatisfactory” rated motor carriers to transport more than 15 passengers and placardable quantities of HM. The regulation implementing section 5113 has been in effect since 1991 (49 CFR 385.13).

Section 4009 added a prohibition applicable to all owners and operators of CMVs not previously subject to 49 U.S.C 5113—that is, those not transporting HM in quantities requiring placarding or passengers—from using those vehicles in interstate commerce starting on the 61st day after being found “unfit.” It also prohibits Federal agencies from using those owners and operators to provide interstate transportation of non-HM freight.

Because 49 U.S.C. 31144(b), as amended by section 4009, provides that “[t]he Secretary shall maintain, by regulation , a procedure for determining the safety fitness of an owner or operator” [emphasis added], the FMCSA concludes that Congress authorized the continued use of the safety fitness rating regulation in effect on June 9, 1998, the date of enactment of TEA-21, until a rule to implement section 4009 is adopted and made effective.

The similarity between the current 49 U.S.C. 31144 and the previous 49 U.S.C. 31144 also convinces the FMCSA that Congress intended section 4009 to authorize the application of the principles embodied in section 15(b) of the MCSA of 1990 to the entire range of motor carriers that operate CMVs in interstate commerce. The only difference mandated by section 4009 is that carriers of general freight would have 60 days after the agency makes a determination of “unfitness,” while passenger and HM carriers have 45 days, in which to improve the safety of their operations or cease operating in interstate commerce. Because the MCSA of 1990 explicitly referred to the three-part rating scheme used by the FHWA ( satisfactory, conditional, unsatisfactory ) and directed the agency to prohibit unsatisfactory rated motor carriers from transporting passengers and HM after the 45 day period, the FMCSA concludes that the functionally equivalent, though not identical, requirements of section 4009 authorize, but do not require, the FMCSA to continue using its current safety fitness rating standards and methodology. The FMCSA will use an unsatisfactory rating assigned under the Safety Fitness Rating Methodology (SFRM) in part 385 as a determination of “unfitness.” This policy is congruent with that of section 15(b) of the MCSA of 1990. There is nothing in the legislative history concerning section 4009 of TEA-21 that suggests the FMCSA should implement a different approach.

On August 16, 1999 (64 FR 44460), the FHWA proposed amending §§ 385.1, 385.11, 385.13, 385.15, and 385.17 of the FMCSRs to prohibit all motor carriers found by the Secretary to be unfit from operating CMVs in interstate commerce.

Comments were received from the following:

Five motor carrier industry associations: American Bus Association (ABA); American Moving and Storage Association (AMSA); American Trucking Associations (ATA); National Association of Small Trucking Companies (NASTC); National Private Truck Council (NPTC);

Four motor carriers: Boyle Transportation (Boyle); Crete Carrier Corporation and its affiliates Sunflower Carriers, Shaffer Trucking, Inc., and HTL Truck Lines (Crete); Greyhound Lines (Greyhound); Werner Enterprises, Inc. (Werner);

Two labor organizations: Amalgamated Transit Union (ATU) and International Brotherhood of Teamsters (IBT);

One organization representing shippers: National Industrial Transportation League (NITL);

Two safety advocacy organizations: the Insurance Institute for Highway Safety (IIHS) and Parents Against Tired Truckers (PATT);

Two State departments of transportation: Oregon Department of Transportation and Iowa Department of Transportation.

The ATA supported the FMCSA's new authority to require all unsafe motor carriers to cease their operations in interstate commerce, saying “[t]he highway is our workplace and we continue to pursue ways to make our workplace safer.” Nevertheless, the ATA believes the path the FMCSA has chosen reflects a choice for expediency. The ATA took issue with the agency's interpretation of congressional intent and with what it views as the agency's inconsistent approach towards the adoption of performance-based safety indicators and enforcement outcomes. These comments are discussed under the topic headings below.

Werner agreed with and supported the ATA's position on the NPRM. However, it disagreed that an unsatisfactory safety rating should be considered a determination of safety fitness, and argued that there is little relationship between recordkeeping violations and the motor carrier's accident rate or overall safety. Werner also expressed concern with the methods currently used to perform compliance reviews and assign safety ratings.

The NASTC generally supported the goal of statutes, regulations, and enforcement actions to ensure CMV safety. It questioned the FMCSA's proposal to link an unsatisfactory safety rating with a determination of unfitness, as well as the suitability of the time periods proposed between the FMCSA's notification to a motor carrier of its proposed unsatisfactory safety rating and the agency's final determination.

The NPTC generally supported the FMCSA's proposal as providing a means to require motor carriers with documented poor safety performance to cease operations in interstate commerce. However, the NPTC expressed concern over three issues: the FMCSA's failure to propose a revised performance-based SFRM; the appropriateness of equating unfitness with an unsatisfactory safety rating without revising the SFRM; and the enforcement of shutdown provisions. These comments are discussed under the topic headings below.

The National Industrial Transportation League (NITL) “supports the proposed regulations as an appropriate exercise of the agency's regulatory authority in the critically important area of truck safety. Indeed the League commends the FHWA for its thoughtful approach in implementing the requirements of TEA-21.” The NITL believed that the agency correctly interpreted the nexus between a motor carrier's unsatisfactory safety rating and the determination of “unfitness.” Although the NITL agreed with the FMCSA's assertion that TEA-21 does not require the agency to implement a new safety fitness standard, it believes that the agency should continue to evaluate and refine the current system. The NITL offered several recommendations related to public access to safety ratings, revised rating categories, and re-rating of motor carriers currently holding unsatisfactory safety ratings. These comments are discussed under the topic headings below.

Parents Against Tired Truckers supported the FMCSA's proposal and urged the DOT and the FMCSA to provide sufficient funding and personnel to successfully implement the new regulation. The Insurance Institute for Highway Safety also supported the proposal and hopes the regulation will deter violations of Federal motor carrier safety regulations.

Other commenters, including the two States, labor organizations, and some of the industry associations, discussed specific provisions of the NPRM and issues related to motor carrier safety compliance review and enforcement processes. We address their comments under the appropriate subject headings.

The ATA contended that Congress' use of the term “is not fit” in section 4009 of TEA-21 was deliberate, and that the FMCSA “misconstrued the legislative history of [49 U.S.C.] section 31144 when it said ‘First, [Congress] transferred the substance of 49 U.S.C. 5113 to section 31144.’ ” The ATA believes that Congress “rejected much of the substance of Section 5113 and replaced it with Section 31144.” Werner also does not support the notion of an unsatisfactory rating as a determination of unfitness. Crete holds that the wording of section 4009 indicates that Congress intended the “safety fitness compliance determination” and a “determination of fitness to operate ” (emphasis in original) to be two distinct processes.

The AMSA asserted that the FMCSA has misinterpreted section 15(b) of the MCSA of 1990 and section 4009 of TEA-21 in drawing an equivalence between a declaration of unfitness and a safety rating of unsatisfactory. The AMSA stated that, “[s]ince Congress did not explicitly direct the Secretary of Transportation to maintain the same safety fitness procedures for household goods carriers as for carriers of hazardous materials,” that the FMCSA should not do so. The AMSA also cited the MCSA of 1990 to support its belief that, “Except for intentional bad acts ( e.g., falsification of records of duty status or drivers' medical certificates), Congress did not intend for record keeping violations to require enforcement actions as severe as ceasing operations.” The AMSA also provided statistics prepared by its Safety Management Council on 1998 fourth-quarter accidents experienced by 17 companies, as well as industry accident statistics covering the period 1989-1998 to support its point of view. For those years, between 15 and 20 companies reported total miles traveled, numbers of accidents in several categories (total accidents, DOT recordable, preventable DOT recordable, total preventable, and fatal) and the corresponding accident rates per million vehicle miles. Their DOT recordable accident rates ranged from 0.921(in 1989) to 0.644 (in 1998), fatalities ranged from 0.082 (in 1989) to 0.031 (in 1998).

The FMCSA continues to differ with the ATA's reading of the legislative history of 49 U.S.C. 5113 and 31144. The agency's NPRM (64 FR 44460, at 44461) addressed this issue and responded to the ATA's comment to the ANPRM on the same subject (at 44464).

The agency developed the NPRM to respond to congressional direction contained in TEA-21 and predecessor legislation. Responding to the AMSA's second comment, Congress did explicitly direct the Secretary to prohibit the operation in interstate commerce by motor carriers determined to be unfit. In doing so, Congress extended the earlier prohibition applicable to motor carriers of HM to motor carriers of non-HM freight. A fair reading of section 4009 of TEA-21 supports the action adopted in this final rule. Given the enactment of 49 U.S.C. 31144 in the Motor Carrier Safety Act of 1984 and the FHWA's implementation of that section in 49 CFR Part 385, and the enactment of 49 U.S.C. 5113 in the Hazardous Materials Uniform Safety Act of 1990 and the FHWA's implementation of that section in 49 CFR 385.13, the only substantive change made in section 4009 is the extension of the prohibition against operations after unsatisfactory ratings are received to all motor carriers of property. The 1984 Act required the Secretary to “prescribe regulations” to determine the safety fitness of owners and operators of commercial motor vehicles. The FHWA prescribed such regulations in Part 385, employing a rating system, consisting of satisfactory, conditional and unsatisfactory ratings.

In 1990, the Congress recognized this process by prohibiting transportation by motor carriers transporting hazardous materials or passengers after receiving an “unsatisfactory” rating. In section 4009 of TEA-21, Congress directed the Secretary to “maintain by regulation a procedure for determining the safety fitness of an owner or operator,” again a recognition by Congress that a procedure was already in place. Congress did not require a new procedure or the use of a new nomenclature. The former section 5113, which used the term “unsatisfactory” from the regulations as the determinant for when a carrier is no longer fit to operate, is in substance incorporated into the new 49 U.S.C. 31144, which speaks only in terms of fitness to operate. But the new section 31144 applies the section 5113 prohibitions to all motor carriers under a common procedure for determining safety fitness that it requires the Secretary to “maintain.”

The agency does not read the “maintain” provision to mean that we must continue to use the same nomenclature, nor even the same factors in making the determination, but it certainly does not prohibit it. As the agency has stated publicly and throughout these notices, the fitness determination factors are under review, and we intend to address that entire issue in a subsequent rulemaking.

The table below compares the AMSA crash rates (per 100 million vehicle miles traveled) to FMCSA rates for fatal and recordable crashes.

Both fatal and recordable accident rates provided by the AMSA for the moving industry fluctuated significantly from year to year. Fatal crash rates have been generally comparable to the FMCSA rates. AMSA's figures on recordable crash rates were lower than the FMCSA national rates in 1993, 1994, and 1998, but higher in 1995, 1996, and 1997. Because the AMSA crash data are drawn from a far smaller population than the FMCSA data, they are subject to significantly higher fluctuations. Taking the record as a whole, however, the FMCSA believes that the safety performance illustrated by these statistics does not support the AMSA's contention that household goods carriers are uniquely safe and should therefore be given regulatory relief.

The ATA argued that the approach of the NPRM is not consistent with the FMCSA's progress in shifting toward performance-based indicators and outcomes. It pointed out that the FMCSA has devoted considerable resources to developing two performance-based safety tools: Safestat, which prioritizes motor carriers for safety review based primarily upon performance indicators, and the Motor Carrier Safety Improvement Process (MCSIP) to trigger State-based CMV registration sanctions against unsafe motor carriers.

The ATA claimed that the current safety rating process is “seriously flawed” because it “provides a measure of compliance, not safety, by its very design.” The ATA contended that the FMCSA “has been reluctant to consider the rating as a measure of safety.” The organization expressed disappointment with the FMCSA's failure to implement a “more performance-based” rating process, but it then took the agency to task for alleged inconsistencies in its treatment of motor carriers' performance and regulatory compliance. As an example, the ATA criticized the FMCSA's weighting of hours-of-service violations in the SFRM: “[FMCSA] does not make the connection through data or research that fatigue is the cause of driver error.” Crete also criticized the agency's “exceptional emphasis given in the current regulations to compliance with the FMCSA's outmoded hours of service regulations.”

The ATA contended that the FMCSA's research, specifically the “New Entrant Safety Research: Final Report,” April 1998, makes the case that there is “no linear relationship between compliance and safety.” The ATA focused on the report's finding that a motor carrier's regulatory compliance improves with its experience, but that the relationship between experience and crashes was not directly related.

The ATA exhorted the FMCSA: “If the agency is permanently married to the shut down procedures it has proposed, we urge an immediate correction to the rating system.” The ATA recommended that the FMCSA give additional weight to the “accident” factor, reduce the weight for hours-of-service violations, and consider only accidents deemed the “fault” of the CMV driver when calculating a motor carrier's accident rate.

Werner contended that there is a “lack of uniformity between various regions and the method of sampling used during a compliance review.” Werner also argued that the potential outcome of a proposed unsatisfactory rating is serious in the extreme, given the “large number of motor carriers subject to review and the random aspect of enforcement.”

The ABA stated that it has continued concerns with the FMCSA's current safety rating process, and urged the agency to move forward with procedures that are performance-based as opposed to recordkeeping-oriented.

Crete recommended that the FMCSA use the national “average” recordable accident rate as an initial baseline performance standard for a motor carrier's operational safety fitness. A motor carrier whose rate was more than double the national average might be considered to have demonstrated unsatisfactory compliance with the compliance review (CR) accident factor and could be deemed unfit to continue to operate in interstate commerce.

The NPTC echoed this viewpoint. It would support a rating system that is based upon a motor carrier's “crash history, driver behavior, vehicle condition, and safety management systems.” The NPTC called for the FMCSA to develop a procedure that is “unambiguous, not subject to interpretation, and have standards to assure [the process to require an unfit motor carrier to cease its interstate operations is] applied equitably.” The organization was very concerned that the FMCSA had proposed to continue to use its current SFRM. The NPTC believed “this action minimizes the agency's commitment to review and develop a rating system based more on safety performance, and less on paperwork compliance.”

The NPTC recommended that the FMCSA issue an interim final rule “with a time certain deadline” to implement the revisions proposed. The NPTC reasoned that this would allow the agency to quickly implement the provisions of section 4009, but would still provide an opportunity for the FMCSA to review its outcomes to ensure that the regulation was being applied properly.

The FMCSA already places considerable reliance on the performance criteria in the SFRM, e.g. , vehicle and driver violations and accident rates. The FMCSA also uses performance data to set priorities for CRs of motor carriers: A motor carrier that has accident and vehicle out-of-service experience below a statistical threshold, and that has not generated substantive complaints concerning its operational safety, is not likely to face a CR. The safety rating assigned after the CR reflects a measure of both a motor carrier's safety performance and its compliance with safety regulations. Those regulations exist because of their nexus to safety of operations. An NPRM soon to be published will address the issue of what the ATA—and the FMCSA—view as a misinterpretation of safety ratings.

The FMCSA has for several years been considering the feasibility of a more performance-based method of evaluating the safety of motor carriers. In a 1997 final rule amending 49 CFR part 385 (62 FR 60035, November 6, 1997), the agency announced that an ANPRM would be published to solicit advice and data on such a rating system. The ANPRM was published on July 20, 1998 (63 FR 38788). The agency has since decided to separate the short-term rulemaking implementing section 4009 of TEA-21 from the longer-range effort to create performance-based rules. The SafeStat algorithm, which incorporates performance measures—accidents and roadside out-of-service rates—has become a more integral part of the FMCSA program for selecting motor carriers for CRs. The agency is also strengthening its focus on motor carriers that have demonstrated continuing unwillingness or inability to address safety performance problems. Under the PRISM  1 program, these motor carriers may ultimately face the suspension of their CMV registration privileges.

Nevertheless, databases sufficiently reliable and populated to support a truly comprehensive performance-based rating system are still under development. Since the congressional mandate embodied in section 4009 cannot be delayed indefinitely pending their full deployment, the FMCSA has concluded that the best alternative is to adopt the proposal set forth in the NPRM. An interim final rule incorporating changes to the SFRM that were not published for notice and comment, as required by the Administrative Procedure Act, would add a new element of legal uncertainty—the very thing that the NPTC wishes to avoid. The regulatory requirements that several commenters sought to trivialize as “paperwork compliance” in fact deal with critical matters, such as monitoring drivers' hours of service and checking to verify that their CDLs have not been suspended.

Concerning the ATA's comment that the “[FMCSA] does not make the connection through data or research that fatigue is the cause of driver error,” we refer the ATA to the extensive research literature the agency reviewed on the subject of fatigue and loss of alertness. [See DOT Docket FMCSA-97-2350]. Although the data are not available to statistically determine the incidence of fatigue, it is noteworthy that driver fatigue was identified by a broad spectrum of over 200 motor carrier and highway safety experts participating in the Department's 1995 Truck and Bus Safety Summit as the top issue needing to be addressed to improve motor carrier safety. The FMCSA believes that the statistics of police-reported large-truck fatal crashes do not adequately reflect the contributing role that fatigue may play in crashes. Fatigue increases the likelihood that a driver will not pay sufficient attention to driving or commit other mental errors. In-depth studies of crashes have found that inattention and other mental lapses contribute to as much as 50 percent of all crashes. While fatigue may not be involved in all these crashes, it clearly contributes to some of them.

Addressing the ATA's comment on the report, “New Entrant Safety Research: Final Report,” the FMCSA agrees that the ATA's explanation of the relationship between regulatory compliance and crash rates may be one possibility. However, the study sought to separately confirm the existence of a safety performance ( i.e. , crash rate) learning curve and the existence of a safety regulation compliance learning curve. It did not involve determining the relationship between compliance and safety, as the ATA's comment suggests.

As for the ATA's recommendation to count only those accidents where the CMV driver was determined to be at fault, the FMCSA believes it reflects a continued misinterpretation of the distinction between “contributing factor” and legally culpable “fault.” Some motor carriers properly list in their accident register the details of accidents that their drivers were powerless to avoid (such as a legally stopped CMV that is struck in the rear by another vehicle). For other types of accidents where the driver of another vehicle was cited on a police accident report, the issue of “preventability” on the part of the CMV driver is often far more complex. The FHWA addressed this issue in the final rule concerning the safety fitness procedure (62 FR 60035, at 60037).

The FMCSA disagrees with Crete's recommendation that a motor carrier's accident experience be the sole factor considered in determining safety fitness. In the words of Professor James Reason of the University of Manchester, who spoke out at the National Transportation Safety Board's (NTSB) April 24 and 25, 1997, symposium, “Corporate Culture and Transportation Safety:”

The FMCSA, like the FHWA and the ICC for the last 60 years, rejects the assertion that there exists no relationship between a motor carrier's safety of operations and the completeness and accuracy of records that document compliance with the FMCSRs and, if applicable, the hazardous materials regulations (HMRs).

The FMCSA disputes the ATA's view that motor carriers continue to suffer consequences of what it views as an unjust method of assigning safety fitness determinations. The FMCSA's statistics presented in the August 16, 1999, NPRM indicate that in the years 1994 through 1998, between 80 and 95 percent of motor carriers of non-HM property starting a calendar year with an unsatisfactory safety rating were able to improve that rating before the end of that year—and they were not constrained from continuing their interstate operations.

In reference to Werner's and Crete's comments concerning review of motor carriers' records, the FMCSA's method of selecting records during the course of a compliance review has withstood a judicial challenge, American Trucking Associations v. Department of Transportation, 166 F.3d 374 (D.C. Cir. 1999). The fact is that there is a very large population of motor carriers in interstate commerce—nearly 500,000—and the agency is responsible for their safety and compliance with the FMCSRs, and, if applicable, the HMRs. Werner did not provide details concerning what it terms a lack of uniformity in the FMCSA's compliance reviews. As for Crete's comments concerning the hours-of-service regulations, the FMCSA recently published a proposed revision to those regulations. However, this does not excuse motor carriers from complying with, and the FMCSA from enforcing, the current regulations.

The ATA contended that the FMCSA's procedures proposed in the NPRM are “illogical and contrary to Congress’ intent * * * [because] the safety rating provides a measure of compliance, not safety.” In support of its argument, the ATA described two hypothetical examples. In the first, a motor carrier had a low recordable accident rate of 0.35 crashes per million vehicle miles traveled and has been cited during an FMCSA compliance review for four critical violations: failing to preserve supporting documents for records of duty status, failing to maintain required proof of financial responsibility, failing to maintain inquiries into a driver's driving record, and failure to require drivers to prepare driver vehicle inspection reports. The motor carrier was rated “unsatisfactory.” In the second, a motor carrier has experienced 1.8 accidents per million [vehicle] miles, “more than twice the national average.” The ATA maintained that this motor carrier could receive a satisfactory safety rating “if its operation were otherwise in complete compliance.” The ATA said that a “recent, high profile magazine article” cited an example of a California motor carrier involved in a fatal crash had received a satisfactory safety rating from the FMCSA five months before, despite having a vehicle out-of-service rate “nearly twice the national average.” Werner echoed the ATA's view on this issue. Crete's objection was similar. It argued that the proposal “confuses an assessment of the ability of a motor carrier to achieve compliance with a series of regulatory requirements with how safely the carrier's vehicles are actually being operated on the nation's highways” and that the proposal “would continue to elevate form over substance.”

The AMSA contended that the NPRM “accomplishes nothing substantively to minimize accidents and fatalities.” It characterized the proposal as one that would shut down motor carriers for poor recordkeeping practices but would potentially allow those with poor safety performance to continue to operate. The AMSA suggested a weighted assessment method that would base a safety fitness rating on roadside inspections, DOT accident ratio, driver qualifications record compliance, random drug and alcohol tests, a vehicle inspection and maintenance program, and hours-of-service compliance. The association would recommend that a motor carrier that did not have a “passing grade” of 60 percent or higher in any of these categories be declared unfit and unsatisfactory. However, the AMSA went on to state that the seasonal nature of the household goods moving industry would cause them to benefit less than other motor carrier industry segments when it comes to correcting safety deficiencies within a 60-day period. The association also contended the focus of these motor carriers' during the moving season “is almost exclusively on safe transportation of shipments, not necessarily safety compliance record keeping.”

The NPTC asserted that, by drawing an equivalence between a determination of unfitness and an unsatisfactory safety rating, the FMCSA is attaching the consequences set forth in TEA-21 to what it considers a flawed method of determining a safety fitness rating. The NPTC noted that it has supported the FMCSA's plans to amend the SFRM. It believed the current methodology “places too much reliance on paperwork compliance and that greater reliance should be placed on performance measurement to determine safety fitness.”

The NASTC was concerned that the proposed rule would generate particularly severe outcomes for small motor carriers that do not have the safety-department resources common to larger motor carriers. Even though they do not encourage or condone unsafe operations, they may experience regulatory violations that could place them in danger of receiving an unsatisfactory safety rating, and may not be able to cure the underlying conditions in 60 days.

The FMCSA is concerned that Crete and the ATA appear to believe there is a complete disconnection between a motor carrier's compliance with the FMCSRs and the safety of its operations. As demonstrated by the NTSB's April 1997 symposium, adverse events, such as crashes and HM incidents, do not occur without warning. Rather, they are the final outcome of a chain of events made up of weak and inadequate safety links. For this reason, the FMCSA reads with grave concern Crete's and the ATA's comments expressing their belief that recordkeeping violations do not reflect gaps and deficiencies in safety of operations. The ATA's first hypothetical example did not go into details concerning the patterns or extent of the missing records. More important, the ATA did not explain how a motor carrier can demonstrate that it has complied with safety regulations concerning drivers' hours-of-service, financial responsibility, driver qualifications, or proper CMV operation and maintenance in the absence of these records. The ATA's second hypothetical was simply incorrect. As indicated in the final rule adopting Appendix B to Part 385, “[a]n urban carrier (a carrier operating entirely within the 100 air mile radius) with a recordable accident rate over 1.7 (approximately twice the 1994-96 average of 0.839) will receive an unsatisfactory safety rating. All other carriers with a recordable accident rate greater than 1.5 (approximately double the 1994-96 average of 0.747) will receive an unsatisfactory safety rating” (62 FR 60037, November 6, 1997). Therefore, a carrier with an accident rate of 1.8 per million vehicle miles would receive an unsatisfactory rating for Factor 6 (Accident Factor = Recordable Rate) of the Safety Fitness Rating Methodology. Even if this hypothetical motor carrier were otherwise in compliance with the FMCSRs, its factor rating for accidents would make the overall safety rating conditional (see “Motor Carrier Safety Rating Table” in Section III.A of Appendix B to 49 CFR 385).

The FMCSA notes that, according to Crete, the “‘recordable accident’ rate (as defined in 49 CFR 390.5) of Crete and its three affiliates is significantly less than one-half of the national average and reflects their commitment to highway safety.” This is an admirable outcome reflecting good safety management practices, of which good recordkeeping practices and use of the information contained in the records kept are probably key features.

All of the items in the assessment method suggested by the NPTC and the AMSA depend upon the motor carrier maintaining records in order to establish compliance with the applicable safety regulations. The AMSA's suggestion that recordkeeping is completely disconnected from safety compliance is disingenuous. The agency reminds commenters that the NPRM included a provision to extend the initial 60-day period for up to an additional 60 days if the agency believes the motor carrier is making a concerted effort to improve the safety of its operations. Finally, the peak moving season requires household goods movers to use drivers and vehicles that are not part of their regular fleets. They might well give these temporary resources more scrutiny in order to ensure that the safety and quality of their operations are maintained.

Addressing the NASTC's concern, the agency has worked, and will continue to work, closely with motor carriers with proposed unsatisfactory ratings to help them improve the safety of their operations. Section 4009 states that the Secretary of Transportation may allow unfit motor carriers making good-faith efforts to improve their safety of operations to operate a grace period of up to 120 days (by law, this extended period is not available to motor carriers that transport passengers or HM freight in quantities requiring placarding.) The FMCSA's statistics on motor carriers' follow-up safety ratings indicate that the vast majority do improve their ratings and can continue or recommence their operations. Tables 2 and 3 of the NPRM provided calendar year summaries of the number of motor carriers of property initially rated unsatisfactory, and motor carriers holding an unsatisfactory rating at the beginning and the end of the year. The figures were broken down by the number of drivers used by the motor carrier. Small (under 20 drivers) motor carriers' figures are comparable to the national averages of those motor carriers improving their ratings (Table 3), and some subsets of them actually have slightly better outcomes than motor carriers in the 50-99 driver category.

The NASTC requested the FMCSA to begin the 60-day period on the date the agency officially notifies the motor carrier of the proposed rating, rather than the day the CR is completed. The FMCSA proposed to do exactly that, and to provide official information no later than 30 days after the completion of the review in a letter issued from the agency's headquarters. These procedures are being adopted in § 385.11 of the final rule.

The NASTC indicated that some of its members have been subjected to out-of-date controlled substance and alcohol testing regulations during the course of their reviews. The FMCSA is very concerned about this and requests the NASTC or the motor carriers involved to contact the FMCSA with specifics of this situation so we can correct it.

The ATA supported the FMCSA's proposal to review a motor carrier's proposed unsatisfactory safety rating within a specific time frame, and the proposal to offer a motor carrier of non-HM freight up to an additional 60 days to demonstrate improvements in the safety of its operations. The ATA maintained that this longer time gives motor carriers an extra incentive and allows them to make positive changes to their operations and to improve their compliance with safety regulations. The ATA also asked the FMCSA to consider re-reviewing all motor carriers with proposed conditional safety ratings.

The FMCSA is pleased that the ATA recognizes the agency's desire to assist motor carriers in improving the safety of their operations, and to avoid issuing a final unsatisfactory safety rating if the motor carrier is able to successfully demonstrate its safety fitness. However, we must clarify two issues that might have arisen from a misreading of the NPRM. First, the motor carrier must request the FMCSA to perform an administrative review or a review based upon its corrective actions. Second, the FMCSA must perform those reviews within 30 days of a request from a passenger or HM motor carrier, and within 45 days of a request from any other motor carrier. With respect to reviewing proposed conditional safety ratings, the FMCSA must deploy its resources where the safety needs are greatest, and where the potential threats to a motor carrier's continued operations are the most severe. Because the new rule applies prospectively, motor carriers of non-HM freight receiving a proposed unsatisfactory safety rating on or after the effective date of this rule are subject to new and serious operational consequences if their proposed ratings become final. The FMCSA believes it must, therefore, give priority to these motor carriers' requests for administrative reviews.

Greyhound Lines, Inc. (Greyhound) supported the FMCSA's overall proposal, but strongly objected to the proposed exemption for for-hire passenger CMVs designed to transport fewer than 16 passengers, including the driver. Greyhound asserted that § 385.1(b) of the FMCSA's NPRM provides a “permanent exemption” to operators of these smaller vehicles, notwithstanding the FMCSA's interim final rule on this subject (Docket FHWA-97-2858, 64 FR 48510, September 3, 1999). “Greyhound urges [the FMCSA] to remove the proposed exemption for commercial van operators and to start actively reviewing the operations of commercial van operators in order to remove from the road those that are unfit to operate.”

Greyhound provided to this docket a copy of the cover letter from its comment to Docket FHWA-97-2858, dealing with the definition of CMVs. Greyhound had compiled a list of nationwide media reports of commercial van accidents and estimated that over 250 deaths per year occurred among the 74,000 commercial vans in operation. The latter number was based on information from the International Taxicab and Livery Association and included minivans with a passenger capacity of less than 9. Greyhound calculated a fatality rate of 1 per 296 commercial vans operated (74,000/250). Greyhound then compared NHTSA fatality data and a DOT Bureau of Transportation Statistics estimate of the number of intercity buses (4 occupant deaths for 25,700 buses) to compute a rate of 1 fatality per 6425 intercity buses operated. It provided a caveat to the comparison, stating that “the estimated van population is inflated by minivan numbers and because data is not available on the number of non-bus occupants killed in bus accidents.”

The Amalgamated Transit Union (ATU) also supports the FMCSA's proposal and states that it agrees with Greyhound on this subject. The ATU also provided what it termed a “selected summary of van accidents, injuries, and fatalities.”

The comments of the American Bus Association (ABA) on this subject were similar to those of Greyhound. The Association stated that the FMCSA's lack of action to amend the FMCSRs to include smaller for-hire passenger vehicles after the passage of the ICC Termination Act of 1995 (Public Law 104-88, 109 Stat. 803) led the ABA to request Congress to again direct the FMCSA to regulate operators of these vehicles in section 4008 of TEA-21. The ABA also took the FMCSA to task for proposing to exempt these operators in § 385.1(b) of the August 16, 1999, NPRM.

Concerning the assertion by Greyhound and the ABA, that § 385.1(b) ignored the provisions of the FMCSA's other rulemakings on the applicability of the FMCSRs to for-hire operators of small passenger vehicles, the apparent inconsistency arises from the publication dates. The FHWA's NPRM on safety fitness procedures could not cite the provisions of those other rulemakings because they were not published in the Federal Register until 18 days later. On September 3, 1999 (64 FR 48510) the FHWA published an interim final rule exempting for six months the operation of these small passenger-carrying vehicles from all of the FMCSRs. This was done to allow time for the completion of a rulemaking proposal published the same day (64 FR 48518) that would require motor carriers operating these vehicles to file a motor carrier identification report, mark their CMVs with a USDOT identification number and certain other information ( i.e. , name or trade name and address of the principal place of business), and maintain an accident register. Because the September 3 NPRM is still in progress, this final rule continues to exempt non-business private motor carriers of passengers and motor carriers conducting for-hire operations of passenger CMVs with a capacity of fewer than 16 persons, including the driver.

The FMCSA believes that there are two basic reasons that it cannot make a realistic comparison of fatality rates of small van and intercity bus operations. First, the number of minivans included in the “commercial van” total is not known. Greyhound provided this caveat to its own submitted statistical summary. Second, there appear to be no readily-available data to compare accident involvement on a true exposure basis (vehicle miles traveled, or VMT). The ATU's summary of accidents certainly points to the personal tragedies of the people involved and their families, but it does not provide a statistically representative assessment of the operations of these vehicles. After considering various rulemaking options, the FMCSA proposed three requirements in its September 3, 1999, NPRM (64 FR 48518). These motor carriers would be required to complete a motor carrier identification report, to mark their vehicles with a USDOT number and certain other identifying information, and to maintain an accident register. The agency believes that these proposed changes would enable it to monitor the safety performance of these passenger carriers. The agency will be responding in a separate rulemaking to the congressional direction contained in section 212 of the Motor Carrier Safety Improvement Act of 1999, concerning rulemaking on the application of the FMCSRs to small passenger van operations.

The International Brotherhood of Teamsters (IBT) supported the substance of the FMCSA's proposal. However, it disagreed with the FMCSA's proposal not to release proposed unsatisfactory safety ratings. The IBT took issue with the FMCSA's statement that the proposed unsatisfactory and conditional safety ratings are not releasable under the Freedom of Information Act (FOIA) because they do not constitute the agency's final decision. The IBT asserted that “FOIA is not the statute governing public availability of safety fitness ratings. Rather, 49 U.S.C. § 31144(a)(3) expressly provides that the ‘Secretary shall * * * make such final safety fitness determinations readily available to the public; * * *’ ” The IBT questioned how the FMCSA could reconcile the determination of unfitness that is “at once final enough to trigger the beginning of the grace period but not sufficiently final to trigger public disclosure.” The IBT also questioned why the FMCSA would wish to withhold the proposed ratings of a small number of motor carriers. It quoted the NPRM as indicating “only a relatively small percentage (2 percent) of all general freight carriers receive an “unsatisfactory” rating.” Finally, the IBT suggested that “the possibility of public disclosure of their condition will encourage improvement before, rather than after, the Secretary determines their level of fitness.”

The NITL also believed the FMCSA should immediately make available a motor carrier's proposed unsatisfactory safety rating and should take steps to more widely publicize the SAFER Internet address and the toll-free 800 number for public inquiries about safety ratings. The NITL maintained that “ * * * the actual occurrences [commenter's emphasis] of such directly safety-related violations justifies the public's access to the proposed “unsatisfactory” rating immediately,” and that the shipping public should be provided the most current information so they can make their own decisions on whether or not to continue a relationship with such a motor carrier. The NITL echoed the IBT's view that this approach would have a strong deterrent effect. In contrast, the NITL believed the FMCSA should not make a proposed “conditional” safety rating publicly available because the less severe nature of the safety deficiencies that caused that proposed rating to be issued.

The ABA supported the FMCSA's proposal to continue its practice of not making public proposed unsatisfactory safety ratings. The ABA agreed that posting a proposed rating before a motor carrier has the opportunity to assess its operations, provide the FMCSA additional information, and request a reconsideration of the proposed rating “could in fact deal a death blow to a company without full benefit of due process.”

The NITL argued that if a motor carrier had not taken effective corrective action during the 45 to 60 day period after it received a proposed unsatisfactory safety rating, it must be required to cease its operations at the end of that period. No extensions should be permitted.

The AMSA was concerned that motor carriers of household goods would suffer irreparable harm if proposed unsatisfactory safety ratings were made publicly available. The AMSA stated that the unique and close relationship that movers have with end-user consumers is largely based upon the public's confidence that the mover will transport their household goods in a safe and sound manner. “Thus, even public disclosure of a ‘proposed’ unsatisfactory rating of a household goods carrier would have a most chilling effect on [its] personal and professional reputation. Such an effect could not be repaired easily, notwithstanding either possible error by [a FMCSA] safety specialist or in the instances where there are safety compliance violations, immediate remedial corrective action by the household goods carrier.”

The ATA interpreted the FMCSA's question about publication of a proposed safety rating as a request for comment on whether the FMCSA should require a motor carrier to cease interstate operations at the time the proposed rating is issued, or when the final rating is issued. The ATA requested the FMCSA set this date at 45 or 60 days “after the final rating is issued.” The ATA reasoned that motor carriers need this additional period to dispute the FMCSA's assessment of the situation or situations that led it to make its determination of unfitness, especially if accident preventability was at issue. The ATA went on to say:

The FMCSA proposed to retain the concept of the “proposed” safety rating, which it adopted in 1997. The time frames for motor carriers to cease operations after receiving an unsatisfactory rating or a determination of unfitness were set forth in both the Motor Carrier Safety Act of 1990 and in TEA-21. As the agency explained in the NPRM (64 FR 44460, at 44462), the goal of the proposal was basic fairness toward motor carriers. The agency is still of that same mind.

The FMCSA wants to clarify for the IBT that the proposed safety rating does not constitute a “final safety fitness determination.” The 60-day (or 45-day) grace period that begins with the FMCSA's issuance of a letter to the motor carrier is expressly designed to provide motor carriers the opportunity to take (or at least to begin to take) the corrective actions needed to improve the safety of their operations, or to question the FMCSA's assessment of their operations.

Concerning the estimated number of affected motor carriers, the IBT appears to have misunderstood the agency's statement from the regulatory analysis section of the preamble to the NPRM. Although the agency did state that, as of December 31, 1998, 2 percent of all motor carriers of non-HM property listed in the Motor Carrier Management Information System (MCMIS) had an unsatisfactory safety rating, the beginning of the sentence stated that the 8,999 motor carriers with unsatisfactory ratings represented 8.8 percent of the rated motor carriers (64 FR 44460, at 44465) in that category.

Although publicly available adverse information may indeed serve as a deterrent, the FMCSA agrees with the statements of the ABA, the NITL, and the AMSA. The agency does not believe that the benefits of this deterrent effect outweigh the requirements for the agency to provide these motor carriers the opportunity (1) to challenge the FMCSA's findings and allow the agency to address and correct errors it may have made in assigning the proposed ratings and (2) to improve the safety of their operations. The NITL incorrectly characterized the conditional safety rating, however, because it cited only the definitions in 49 CFR 385.3. The safety fitness rating methodology itself, in appendix B to part 385, describes the degree of regulatory noncompliance and negative performance (vehicle out-of-service and accidents) considered in the assignment of a conditional or an unsatisfactory rating. A motor carrier assigned a conditional safety rating is very likely to have demonstrated regulatory noncompliance, but not to such an extent as to warrant an unsatisfactory safety rating.

Although the NITL opposed the notion of an extension to the 45-to 60-day period during which a motor carrier may operate with a proposed unsatisfactory safety rating, the FMCSA is authorized by statute to provide additional time to motor carriers (that do not transport passengers or HM) making good faith efforts to improve their safety fitness (proposed § 385.13(a)(2)). The agency appreciates the NITL's plan to publish the SAFER Internet address and the FMCSA's toll-free phone number in its newsletter.

The ATA seems to have misunderstood the process and the time frames the agency uses in assessing a motor carrier's safety of operations and issuing a proposed and final safety rating. In the August NPRM (64 FR 44460, at 44462), the agency set forth this process under the heading “Proposed Ratings; Effective Date of Final Rating.”

To reiterate, if the FMCSA is performing an initial CR in response to a safety complaint, a SAFESTAT listing, or a motor carrier's request, the FMCSA will advise a motor carrier of its proposed safety rating at the conclusion of the CR that generates the rating. (If the CR is a follow-up, the FMCSA will advise a motor carrier of its proposed safety rating at the conclusion of that CR only if the rating is other than unsatisfactory.) The FMCSA will officially notify the motor carrier of its proposed safety rating by letter from FMCSA headquarters. The information provided a motor carrier is relatively detailed as to the agency's assessment of specific non-compliance with safety regulations. The motor carrier is, thus, made aware of the circumstances leading to a proposed rating before the FMCSA officially issues the proposed rating via a letter from its headquarters office in Washington, DC. The 45- or 60-day period begins on the date the FMCSA issues the official notice. If a motor carrier wishes to contest facts, such as accident circumstances and contributing factors, it can and should do so as early as possible, even before the proposed rating is issued. In any event, a motor carrier that requests an administrative review should make its request quickly because even an expedited proceeding takes time. During such a review, the adjudicator (the Chief Safety Officer of the Federal Motor Carrier Safety Administration) may grant relief while the proceeding is pending. A motor carrier may request a rating change based upon its corrective actions at any time. The FMCSA must respond to motor carriers' requests for administrative and corrective-action reviews within time frames specified in this rulemaking.

Contrary to the ATA's comment, the FMCSA does not view a proposed unsatisfactory safety rating as directing a motor carrier to prepare to cease its operations. The agency's mission is to promote safe, efficient, and effective transportation of people and goods. However, if a motor carrier has demonstrated that it is unwilling or unable to accomplish its transportation mission safely, it must not be allowed to place the safety of its drivers or of other highway users in jeopardy.

The IBT stated that it opposes the FMCSA's proposal to apply the revised regulation prospectively, i.e. , to impose the prohibition only upon motor carriers receiving an unsatisfactory safety rating on or after the effective date of the final rule. Citing Landgraf v. USI Film Products (114 S. Ct. 1483, 1499), the IBT argued that:

The NITL did not oppose the FMCSA's proposal to apply the rule prospectively, but it wanted the agency to commit enough resources to re-rate all motor carriers with a current unsatisfactory rating “within a short and defined period.” The NITL contended that this effort would serve two purposes: it would remove from the highways motor carriers that continue to operate in an unsafe manner, and it would ensure that previously-unsatisfactory motor carriers would not continue to be “wrongly “tarred” with the consequences of their past rating.”

The IBT's assertion that the FMCSA would contravene congressional intent if it failed to apply the shut-down requirements of section 4009 to non-HM freight carriers rated unsatisfactory before that statute was enacted, is patently incorrect. The discussion of retroactive and prospective application of laws in Landgraf v. USI Film Products , 511 U.S. 244 (1994), is carefully nuanced. Although the Supreme Court acknowledged that retroactive application of laws is sometimes required, especially in “'procedural” and “prospective-relief” cases,” it also noted that “the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly * * *” Id. , at 265, 276. The court's description of the proper analytical method upon judicial review leaves no doubt that unsatisfactory safety ratings cannot be applied retroactively. The court said:

Using this method, we find that section 4009 includes no “express command” to shut down non-HM freight carriers based on unsatisfactory ratings issued before the provision was enacted. The presumption against retroactive application of laws therefore applies.

The FMCSA agrees with the IBT and the NITL that a motor carrier with an unsatisfactory safety rating has demonstrated an unacceptably low level of operational safety. However, the FMCSA has not made a practice of re-rating motor carriers unless new information on their safety performance became available. Some of these motor carriers have held these ratings for substantial periods of time, but have not come to the FMCSA's attention because their accident involvement and/or out-of-service rates have been below national averages. The agency's resources must be allocated over a very large, expanding and diverse group of motor carriers operating in interstate commerce. With nearly 9,000 motor carriers of non-HM freight holding unsatisfactory ratings as of December 31, 1998, the task of re-rating this group over a short period of time would be substantial. As the agency stated in the NPRM (64 FR 44460, at 44463):

The issue of performing assessments of the safety and regulatory compliance of the large number of motor carriers operating in interstate commerce is a daunting one. This rulemaking addresses vigorously the operation of those motor carriers whose safety fitness is determined to be unsatisfactory, and who must either improve their operations or face being prohibited from operating in interstate commerce. Other rulemakings will follow, dealing with the rating methodology itself, certification of safety auditors (required by section 211 of the MCSIA of 1999), and other matters.

Addressing the NITL's second comment, the FMCSA has, and will continue to have, a process in place under § 385.17 for motor carriers to request a change in their safety rating based upon corrective action.

The NITL suggested that the FMCSA develop an “excellent” safety rating category. The NITL stated that “An “excellent” safety rating would provide a quality benchmark to both shippers and carriers, and provide information to shippers on the carriers who take their responsibility for safe operation most seriously * * * [it] would assist shippers in making a choice among competing carriers, thus encouraging excellence in safe operation, and will ensure that the carriers with the best safety record reap the benefits in the market.”

Boyle Transportation (Boyle) believes that motor carriers that transport placardable quantities of high-risk hazardous materials, such as explosives and radioactive materials, should be held to a higher safety standard than motor carriers that transport other types of freight. Boyle provided a list of 23 motor carriers that it stated were approved by the Department of Defense (DOD) to transport Division 1.1, 1.2, and 1.3 explosives; it included three other motor carriers with large nationwide fleets for comparative purposes. The list included the motor carriers' name; USDOT or MC number; out-of-service rates for driver, vehicle, and hazardous materials roadside inspections; and fatal, injury, and “tow” accidents. Boyle pointed out that some of these motor carriers hold satisfactory safety ratings from the FMCSA, even though they have substantial proportions of violations resulting in the driver or vehicle being placed out-of-service. “If a motor carrier that transports high risk hazardous materials and receives ‘out of service’ violations on 20-67 percent of their roadside inspections can maintain the same safety rating as carriers with fewer than 10 percent, there is no incentive for that carrier to more safely operate its commercial motor vehicles. The ‘satisfactory’ safety rating confers the same right to do business with the DOD as other shippers.” Boyle concluded its comments by noting that ICC operating authority to transport explosives was effective only for five years and that the motor carrier had to obtain “satisfactory results of a DOT compliance review” in order to renew it. Boyle recommended that the DOT consider suspending the operating authority of motor carriers transporting explosives if the motor carrier did not lower its vehicle out-of-service rate below 15 percent.

The FMCSA's system of assigning safety ratings does not differentiate among specific classes of commodities, other than whether or not they include placardable quantities of hazardous materials. Although the vehicle out-of-service rates for some of the motor carriers listed in Boyle's submission do exceed the national average, the chart did not include information on fleet size: a small fleet might accumulate a high vehicle out-of-service rate over a short period of time with a small number of violations. The rate could dip equally quickly if a few problem areas were corrected.

The FMCSA believes that it must devote its limited resources to addressing critical concerns in motor carrier and highway safety. A rating category such as the NITL envisions could be awarded by an independent organization that develops its criteria in accordance with best industry safety practices to meet the needs of its clients and partners. We encourage NITL, and other motor carrier industry organizations, to move forward with such an effort.

The AMSA believes that the FMCSA's proposal would have severe adverse impacts upon household goods motor carriers that provide contract transportation services to the U.S. government through the Department of Defense (DOD), the General Services Administration (GSA), and other agencies. According to the AMSA, approximately 1,200 household goods carriers, their agents, and their owner operators transport DOD domestic personal property shipments, and that approximately 120 household goods carriers and their agents participate in the GSA's Household Goods Traffic Management Program. The AMSA contends that “several household goods carriers would be devastated, if not completely put out of business” based upon the proposal.

Some household goods movers that are heavily dependent upon U.S. government contracts would suffer adverse effects from a final safety rating of unsatisfactory. That, of course, must be understood as Congress' purpose in adding this provision. Moreover, the AMSA had noted in another part of its docket comment that there is a unique relationship between a household goods mover and its clients. Therefore, it would seem to be particularly important that household goods movers avoid such serious deficiencies in the safety of their operations that the FMCSA would declare them to be unfit. The safety of the operations of a household goods mover—or any other motor carrier—should not be held to a lower standard for some clients than for others. Indeed, this is not the case. The Program for Qualifying DOD Freight Motor Carriers, Exempt Surface Freight Forwarders, and Shipper Agents, at 32 CFR part 619, addresses safety ratings for motor carriers of non-hazardous and non-sensitive types of shipments as follows:

In any case, the AMSA's concern that a large number of household goods movers would be affected by the regulation seems overstated. As of September 1, 1999, the MCMIS showed 15,781 active interstate motor carriers transporting household goods. These motor carriers operate a total of 142,794 power units (trucks and truck tractors). As of that date, 209 motor carriers (1.3 percent) held unsatisfactory safety ratings; these motor carriers operated 1,083 (0.76 percent) of the power units.

The NPTC was concerned that the NPRM did not describe how the FMCSA planned to enforce its proposal—that motor carriers determined to be unfit actually cease their interstate operations. The NPTC acknowledged that the FMCSA has stated that it is planning to expand the PRISM program, but questioned how many States are currently capable of enforcing the proposed regulation. The organization also urged the FMCSA to develop and publicize its plans to monitor the operations of motor carriers that it has directed to cease interstate operations, including prohibiting those motor carriers from operating their CMVs, and to announce penalties it would assess against motor carrier officials and employees found to be violating these orders.

The Motor Carrier Transportation Division of the Oregon Department of Transportation (Oregon), a participant in the FMCSA's Performance and Registration Information Systems Management (PRISM) program, supported the proposal, but encouraged the FMCSA to improve its compliance assessment and enforcement tools. Specifically, Oregon recommended that the FMCSA implement the SafeStat algorithm “to determine the safety fitness of all motor carriers in the United States.” Oregon also asked the FMCSA to consider alternatives that would provide effective enforcement tools to States, such as prohibiting unfit motor carriers from registering their vehicles.

The Iowa Department of Transportation, another participant in the PRISM program, stated its support for a performance-based system to determine the safety fitness of motor carriers. Both Iowa and Oregon referred to their earlier comments to the agency's July 20, 1998, ANPRM.

The FMCSA will continue to issue an out-of-service order to each motor carrier that receives a final unsatisfactory safety rating. The FMCSA has procedures for its own personnel, and that of its MCSAP partners, to ensure that motor carriers prohibited from operating CMVs in interstate commerce do not do so.

Concerning the safety fitness of “all motor carriers,” the FMCSA is constrained by law to provide safety oversight of motor carriers operating in interstate commerce. States may develop their own methods for assessing the safety fitness of their intrastate motor carriers. They may base their methods upon 49 CFR part 385, but they are not required to do so as a condition for receiving Motor Carrier Safety Assistance Program (MCSAP) grants.

In the preamble of the 1997 final rule amending 49 CFR part 385 (62 FR 60035), the agency announced that it intended to review the entire rating system. On July 20, 1998, the agency published an advance notice of proposed rulemaking (ANPRM) which, among other things, began the process of creating a more performance-based means of determining the safety fitness of motor carriers (63 FR 38788). The FMCSA anticipates publishing an NPRM in the near future that proposes a more performance-based safety fitness methodology. For the present, however, the FMCSA will continue using the current SFRM included in appendix B to part 385.

The FMCSA does not currently issue safety ratings to two categories of motor carriers of passengers: (1) Non-business private motor carriers of passengers, such as, churches or social groups, and (2) owners and operators of vehicles designed to transport fewer than 16 passengers, including the driver, for compensation. As to the first category, the FMCSA does not believe that Congress intended the agency to include this group, because the occasional nature of the transportation these motor carriers provide does not readily lend itself to safety fitness evaluation. These motor carriers are not required to maintain most of the records otherwise mandated by the FMCSRs. However, they are still subject to many of the substantive regulations and to safety enforcement at roadside. No comments to the NPRM docket addressed this issue. The FMCSA will continue its practice of not issuing a safety fitness determination to this type of motor carrier.

The second category of passenger motor carrier is comprised mainly of limousine and van owners and operators. These entities are currently required to obtain operating authority from the FMCSA, but have not been subject to most provisions of the FMCSRs because their vehicles did not qualify as “commercial motor vehicles” under 49 CFR 390.5. Section 4008 of TEA-21 changed the statutory definition of “commercial motor vehicle” to include those vehicles designed or used to transport “more than 8 passengers (including the driver) for compensation” (49 U.S.C. 31132(1)(B)). However, it also authorized the agency to exempt some or all of these vehicles from some or all of the FMCSRs.

On September 3, 1999, the agency published (1) an interim final rule that amends its regulatory definition of a CMV to include vehicles designed or used to transport between 9 and 15 passengers (including the driver) for compensation, but temporarily exempts the operators of such vehicles from the FMCSRs; and (2) an NPRM that proposes to learn more about the operational safety of small passenger-carrying CMVs by requiring operators of these vehicles to file a motor carrier identification report, mark their CMVs with a USDOT identification number, and maintain an accident register. The temporary exemption from the FMCSRs of small passenger-carrying vehicles also temporarily precludes the application of the safety fitness procedures to for-hire motor carriers operating these vehicles.

Several commenters to this docket disagreed with this provision of the FMCSA's proposal. The fact remains that, until the FMCSA completes its rulemaking concerning the applicability of the various parts of the FMCSRs to these passenger motor carriers, there is little upon which the agency could base a safety rating. The FMCSA will first clarify which operations must be included in the newly regulated class, and then determine which regulations should apply. The agency will also be responding in a separate rulemaking to the congressional direction contained in section 212 of the MCSIA, concerning rulemaking on the application of the FMCSRs to small passenger van operations.

On February 17, 1999, in response to a petition from the ATA, the FHWA published an ANPRM dealing with the inspection, repair and maintenance of intermodal chassis and trailers (64 FR 7849). The petition asked for rulemaking that would require parties providing intermodal chassis and trailers to motor carriers (mainly railroads and steamship lines) to share with truckers the responsibility for maintaining that equipment at a level that complies with the FMCSRs. The FHWA discussed its jurisdiction over railroads and steamship lines as follows:

In the course of public listening sessions held by the Department to explore the issues raised by the intermodal equipment ANPRM, the question arose whether the FMCSA could find railroads and steamship lines, as owners or operators of commercial motor vehicles, to be “unsatisfactory,” thus forcing them to stop tendering or accepting intermodal trailers and container-chassis combinations, nearly all of which are in interstate commerce.

The FMCSRs treat the terms “employer” and “employee” in 49 U.S.C. 31132 as essentially equivalent to “motor carrier” and “driver,” respectively. While the statutory definitions can be applied more broadly to railroads and steamship lines that own or operate intermodal equipment, as outlined in the February 17 ANPRM, neither the FHWA nor the FMCSA has done so. The FMCSA does not issue safety ratings to railroads or steamship lines simply because they own or operate (i.e., interchange with truckers) intermodal containers, chassis or trailers. This rule does not expand the reach of the previous safety rating rule to railroads, steamship lines or other intermodal entities merely because some of the equipment they operate meets the definition of a “commercial motor vehicle.” Although ratings may be issued to motor carrier divisions or branches of, or subsidiaries owned by, such companies, railroads and steamship lines as such will not be rated by the FMCSA under this rule, and in the absence of a rating, will not be subject to the requirement to cease operations in interstate commerce.

The regulatory language published in the NPRM is being adopted today, with minor revisions:

(1) The authority citation for part 385 has been revised to incorporate the legislative citations of the Motor Carrier Safety Improvement Act of 1999.

(2) All references to the FHWA have been replaced with references to the FMCSA and the appropriate officials of that agency.

(3) The effective date of the final rule is now 90 (instead of 30) day after the date of publication.

(4) The last phrase of paragraph (b) of § 385.1 has been revised to read “capacity of fewer than 16 persons, including the driver” from the previous “capacity of 8-15 persons, including the driver”—this revised language is consistent with the interim final rule of September 3, 1999 (64 FR 48510).

(5) The text of the first sentence of paragraph (a) of § 385.11 has been revised to add the word “safety” before the first use of the word “ rating” and to revise the phrase “safety fitness review” to read “compliance review.” This revised language is consistent with the useage in the remainder of the rule.

(6) The text of § 385.13, describing the time period when motor carriers are required to cease their operations, is now consistent with the text of § 385.11: the prohibition begins on the 46th day (for passenger and HM carriers) and on the 61st day (for all other motor carriers) after the date of the FMCSA's notice of proposed “unsatisfactory” safety rating. In § 385.13 of the NPRM, the time period was described as commencing after the motor carrier had received the agency's notice. There is likely to be more time between the completion of a CR and the issuance of the notice, than the time between issuance of the notice in Washington, DC, and its delivery to the motor carrier. This change makes it clear that all motor carriers will have at least 45 or 60 days (as appropriate, depending upon whether the motor carrier transports passengers, HM, or non-HM freight) between the time they are advised of a proposed rating and the time the rating becomes final (assuming the motor carrier does not contest it and does not take action to improve its safety performance and request a stay of the proposed rating). A corresponding revision has been made to the text of the last sentence of § 385.17(g).

(7) In § 385.13(a), the word “Generally” has been added to the beginning of the sentence. This revision is necessary to clearly differentiate those motor carriers of non-HM freight that had received their ratings prior to the effective date of this rule. Those motor carriers may still operate in interstate commerce because this rule is not retroactive. An error in the text of § 385.13(a)(2) has been corrected: the section now reads “rated on or after * * * ” An error in the text of § 385.13(c) has been corrected: The date that the rating would become effective would be on or after the effective date of the rule, plus 61 days, resulting in a date 151 days after the date of publication in the Federal Register .

(8) A paragraph, Penalties, has been inserted at § 385.13(d) to address the FMCSA's issuance of an operations out-of-service order to motor carriers rated unsatisfactory; it corresponds to § 385.13(c) of the current regulation. The NPRM erroneously omitted this paragraph.

(9) A typographical error was corrected at § 385.17(c): It now reads “safety standard and factors.”

(10) The listing of FMCSA Service Centers was published on June 2, 2000 as part of the final rule concerning CMV marking (65 FR 35287, at 35297) and therefore will not be repeated here.

The final rule is a straightforward implementation of the amendments to 49 U.S.C. 31144 made by section 4009 of TEA-21. The regulatory changes, like the statutory amendments, simply expand a prohibition on interstate operations, which had previously applied only to HM and passenger carriers, to all other motor carriers.

As mentioned above, the FMCSA is undertaking a separate rulemaking action (see RIN 2125-AE37) to make the safety fitness determination process more performance-based.

The FMCSA has determined it is appropriate for the effective date of this final rule to be November 20, 2000, or 90 days from today. First, the new consequences attached to an unsatisfactory safety rating are particularly severe for motor carriers of non-HM freight. Unless these motor carriers are able to demonstrate to the FMCSA that they have addressed deficiencies in the safety of their operations, they will be prohibited from operating in interstate commerce beginning on the 61st day after the FMCSA notifies them of a proposed unsatisfactory rating. The FMCSA wants to allow motor carriers a period of time to assess their situations, and begin to correct safety problems that they may have. Second, the agency requires the additional time to make necessary changes to its information systems and correspondence procedures so the communications between the agency and motor carriers are handled in a timely and efficient manner.

The prohibition on the operation of CMVs by unfit motor carriers will not be applied retroactively. Passenger and HM carriers rated unsatisfactory have either improved their ratings since 1991 or ceased operating in interstate commerce. However, there were significant numbers of general freight carriers that held unsatisfactory ratings at the time TEA-21 was enacted; their operations were not illegal. In the absence of statutory direction to the contrary, the prohibition on unfit/unsatisfactory general freight carriers in section 4009 must be understood as applying only to those rated unsatisfactory by the FMCSA after the effective date of this final rule. However, if a motor carrier that was rated unsatisfactory prior to the effective date of the final rule receives another unsatisfactory rating after the effective date of this rule as a result of another CR, the new provisions will apply—the motor carrier will be required to cease its operations in interstate commerce beginning on the 61st day after the date of the FMCSA's notice.

Since 1991, motor carriers receiving an unsatisfactory safety rating have been prohibited from using CMVs to transport more than 15 passengers, including the driver, or placardable quantities of HM, in interstate commerce. Furthermore, those motor carriers cannot be used by Federal agencies for those purposes. These prohibitions and the procedures for applying them are contained in 49 CFR 385.13, which implemented section 15(b) of the Motor Carrier Safety Act of 1990. The TEA-21 provision expands the same prohibition, under virtually identical conditions, to all other motor carriers, irrespective of their cargo, which are found by the FMCSA to be unfit. These owners and operators may not operate CMVs in interstate commerce beginning on the 61st day after such fitness determination.

One of the changes to 49 CFR part 385 made in the November 6, 1997, final rule was the adoption of a “proposed” safety rating. Upon completion of a CR, each HM and passenger motor carriers is now given a written description of the deficiencies found, along with a verbal (and sometimes written) notification of its proposed safety rating. Written confirmation of the proposed rating is issued by the Washington, DC office as soon as possible thereafter, but in any case within 30 days after completion of the CR. If the proposed rating is unsatisfactory, the 45-day period in which to make improvements begins on the day after the verbal (and/or written) notice is given by the FMCSA safety investigator at the end of the CR [see 49 CFR 386.32(a)]. If no improvements are forthcoming, the carrier must halt transportation of passengers or HM on the 46th day.

This final rule retains “proposed ratings,” but it changes the event that starts the 45-day, or the new 60-day, period in which unsatisfactory-rated carriers must make improvements. Although FMCSA safety investigators will continue to give verbal (and/or written) notice of the motor carrier's proposed safety rating at the end of each CR, that will not start the statutory grace period. The 45- or 60-day period in which to make improvements will begin on the date the formal written notice of the proposed safety rating is issued by the Washington, DC office. This notice will be issued as soon as practicable, but not later than 30 days after the end of the CR. In other words, the grace period starts as soon as the agency issues the written notice and delivers it to the Postal Service. While the transit time between Washington and the recipient means that motor carriers will have less than 45 or 60 days after delivery of the notice to improve their operations, they will already have received actual notice of the proposed rating at the end of the CR. Because a number of days will be required after completion of the CR to electronically upload the safety investigator's report to Washington, prior to issuing the formal notification of the proposed safety rating, motor carriers will routinely have somewhat more than the statutory 45- or 60-day grace period in which to improve their operations.

If an unsatisfactory-rated motor carrier has not made the necessary improvements by the end of the grace period, it must cease operations on the 46th or 61st day; at the same time, the carrier's final rating will be posted on the agency's Safety and Fitness Electronic Records System (SAFER) website [ http://www.safersys.org ] and made available through telephone inquiries at (800) 832-5660.

While section 4009 requires motor carries to cease interstate operations 45 or 60 days (depending upon the type of operation) after receiving an unsatisfactory rating or determination of unfitness, the FMCSA believes the “proposed” safety rating followed by a 45- or 60-day grace period achieves the same purpose as, and is entirely consistent with, section 4009. As explained earlier in the preamble, the agency has concluded that basic fairness to motor carriers requires this procedure.

Section 4009 also requires specific time periods for the FMCSA to perform a CR requested by an unfit ( i.e., unsatisfactory) rated motor carrier. Section 31144(d) specifies the time limits for the FMCSA to review motor carriers' compliance with regulatory provisions that contributed to the fitness determination. For unsatisfactory carriers of passengers and HM, the follow-up compliance review must be completed within 30 days of the carrier's request; for all other carriers rated unsatisfactory, the follow-up review must be completed within 45 days after the carrier's request.

In the preamble to the August 16, 1991, interim final rule that implemented the provisions of the MCSA of 1990 (56 FR 40801, at 40802), the FHWA said it would “make its determination expeditiously because the ‘unsatisfactory’ safety rating may well affect a motor carrier's ability to continue in business. In the event the FHWA is unable to make its determination within the 45-day period, the agency may conditionally suspend any ‘unsatisfactory’ safety rating and rescind any related administrative order for a period of up to 10 additional calendar days.” The current regulation, at 49 CFR 385.17(d), continues to allow for this additional time: “If the motor carrier has submitted evidence that corrective actions have been taken pursuant to this section and a final determination cannot be made within the 45-day period, the period before the proposed safety rating becomes effective may be extended for up to 10 days at the discretion of the Regional Director.” The final rule retains this provision (as § 385.17(f)) because there may be circumstances under which competing demands for FMCSA staff time would make it impossible to complete a review within the time limit specified by the statute. The agency does not expect that to happen often, but it does not wish to penalize motor carriers for delays not of their own making. The extension will be allowed at the discretion of the FMCSA Service Center for the appropriate geographic area. The list of Service Centers appears in § 390.27.

Under this rule, the FMCSA will continue to perform administrative reviews under § 385.15 and corrective-action reviews under § 385.17 for motor carriers with a proposed conditional or unsatisfactory safety rating, but will give priority to those with proposed unsatisfactory ratings. The current § 385.15(d) states that the FHWA (now FMCSA) will notify a petitioning motor carrier of the agency's decision on administrative review within 30 days after the agency receives a petition. The current § 385.17 does not specify a time limit for the agency to perform a review based upon a motor carrier's request to change a safety rating because of its corrective actions, but it does allow the agency to extend for up to 10 days the period before a proposed safety rating becomes effective (§ 385.17(d)). The agency is revising its regulations and procedures, now codified at §§ 385.15(c) and 385.17(e), to give priority to reviews of motor carriers with a proposed or final unsatisfactory safety rating because of the prohibition against operating in interstate commerce with such a safety rating.

Because the regulation is not retroactive, this priority handling will not extend to non-passenger and non-HM motor carriers with unsatisfactory safety ratings that became final before the effective date of the final rule. Although the FMCSA will continue to review proposed and final conditional safety ratings, the agency needs to place a higher priority on the proposed and final unsatisfactory safety ratings because of the severe operational consequences for the affected motor carriers. However, as explained above, if a motor carrier of non-HM freight that held an unsatisfactory safety rating issued prior to the effective date of a final rule receives a follow-up proposed unsatisfactory rating after the effective date of a final rule, the FMCSA will provide those motor carriers the same priority handling as motor carriers receiving a proposed unsatisfactory safety rating for the first time.

While preparing the final rule, the FMCSA discovered a discrepancy between §§ 385.15 and .17, as published in the NPRM, in the time period allowed for requesting an administrative review. In the former section, the time period for requesting an administrative review was 90 days, while the latter reference was to 45 days. No comments were received on the issue. The FMCSA has adopted the 90 day period for both sections in the final rule. Additional editorial changes were made as well to clarify the operation of the administrative review process.

Subsection (c) of 49 U.S.C. 31144 also provides discretionary power to the agency to allow unsatisfactory-rated motor carriers that do not transport passengers or HM to operate for an additional 60 days, if the agency determines the motor carrier is making a good faith effort to improve its safety fitness. As noted above, the FMCSA will not make a final determination of unfitness in its initial notification—the final determination will occur at the end of the 60-day period or any extensions of that period, up to a maximum of 120 days.

Since 1991, any department, agency, or instrumentality of the United States Government has been prohibited from using a motor carrier with an unsatisfactory safety rating to transport passengers or HM. Section 4009 of TEA-21 extends this prohibition to cover all motor carriers found to be unfit. As written, the prohibition applies to the Federal agency and not to the motor carrier.

The FMCSA will continue to advise a motor carrier of its proposed safety rating as soon as possible after the FMCSA's compliance review, but not later than 30 days afterwards. At the end of the 45- or 60-day period (or longer, if extended), the proposed rating will become the motor carrier's final safety rating if the FMCSA has no basis to change it. On the effective date of a final unsatisfactory safety rating, Federal government agencies will be precluded from using, or continuing to use, these motor carriers' transportation services.

One commenter, the AMSA, disagreed with this element of the proposal. The AMSA contends that “several household goods carriers would be devastated, if not completely put out of business,” if they were prohibited from doing business with the Federal government. No other commenters addressed this issue. Since the requirement is statutory, the agency adopts the provision as proposed in the NPRM.

Decisions regarding safety fitness are made by the Chief Safety Officer of the FMCSA. The NPRM had referred to the Program Manager, Office of Motor Carrier Safety, FHWA. The title used in the final rule reflects the agency's reorganization. No commenters addressed this element of the NPRM.

We have revised the appropriate sections of part 385 to reflect changes in organizational structure and titles.

We have determined that this document contains a significant regulatory action under Executive Order 12866 and under the DOT's policies and procedures because this action has substantial public interest. This action was reviewed by the Office of Management and Budget.

This rule requires any motor carrier in interstate commerce that the FMCSA rates unsatisfactory to cease providing CMV transportation after a grace period of 45 days (for HM and passenger operations) or 60 days (for all other motor carriers). A motor carrier will be allowed to commence those operations again only if the FMCSA determines its safety rating is no longer unsatisfactory. Although these requirements have been in place since 1991 for passenger and HM motor carriers, this is the first time they are being applied to other motor carriers.

Motor carriers of passengers and of placardable quantities of HM are not subject to new sanctions for noncompliance as a result of this regulatory action. Under the new regulations, the FMCSA must respond to any requests for a follow-up review of an unsatisfactory safety rating within 30 days—the prior regulation had required this to be accomplished within 45 days. This revision is required by 49 U.S.C. 31144(d)(2) and (3).

As of December 31, 1998, the agency's MCMIS listed 477,486 motor carriers as active. The FMCSA has provided safety ratings to approximately 25 percent of these motor carriers. The number of motor carriers with unsatisfactory safety ratings was a small fraction of all the rated motor carriers in MCMIS, and a minute fraction of the motor carriers of passengers and of HM. The summary in the NPRM, and the detailed statistics in Supplemental Item of the docket, provided a recent history of follow-up CRs the agency had performed. No commenters addressed these statistics. In fiscal year 1998, the large majority of re-rated motor carriers of property that had received an initial unsatisfactory safety rating received a conditional or satisfactory safety rating after follow-up reviews performed during the year.

To the extent there are any costs associated with this rule, they are a result of noncompliance with an existing rule; it is assumed that those costs are less than the cost of complying with the existing rule or the entities involved would take steps to achieve compliance with the lower cost alternative. With respect to the costs of complying with the existing rule, it should be noted that, generally, when DOT agencies analyze the costs of a new rule, they assume 100 percent compliance. Since 1979, DOT Policies and Procedures have required the analysis of costs and benefits of all rules issued by the Department. This rule merely rates carriers based on their compliance with existing safety standards and requires more unfit carriers to cease operations. Any costs and benefits associated with complying with underlying safety rules adopted since that date would have been considered when those rules were adopted.

The FMCSA anticipates that this rulemaking will have minimal economic impact on the interstate motor carrier industry. Based upon the statistics on follow-up CRs conducted during calendar years 1994 through 1998, the FMCSA expects that between 50 and 100 motor carriers might not improve an initial proposed unsatisfactory safety rating during the grace period allowed. These motor carriers would be required to cease their operations in interstate commerce until they could demonstrate to the FMCSA that they had improved the safety and regulatory compliance of their operations.

Based upon its analysis of statistical information concerning motor carriers' improvement in their safety ratings, the FMCSA believes that the vast majority of motor carriers interested in continuing their operations would be able to do so. Any adverse economic impact to the relatively few motor carriers who are unwilling or unable to demonstrate an improvement in the safety of their operations within the 45 to 120 day period specified in TEA-21 is entirely consistent with the intent of the statute. Obviously, requiring an unfit motor carrier to cease its interstate operations would have an economic impact on that motor carrier and its employees. However, motor carriers have the responsibility of conducting their operations in a safe manner, and in compliance with the FMCSRs. Therefore, the cessation of a motor carrier's interstate operations, as a result of its receiving an unsatisfactory safety rating, should not be attributed as a cost of this rulemaking.

The FMCSA believes the traveling public will derive a safety benefit from the removal from the Nation's highways of CMVs operated by those few motor carriers found to be unfit to operate them safely. In addition, shippers of non-HM freight will derive direct and indirect economic gains through the improved safety and corresponding efficiency of their commercial motor freight transportation.

This rule will only affect the operations of the small number of motor carriers determined to be unfit to operate CMVs based on the frequency and severity of their regulatory violations, poor outcomes of roadside inspections, and accident experience. The number of motor carriers of non-HM freight that do not improve their safety rating from unsatisfactory is expected to continue to be small— fewer than 100 per year. This is much smaller than the number of motor carriers that ceases operations as a result of normal economic fluctuations. There are no new costs associated with this rulemaking and the overall adverse economic effects will be minimal.

This rulemaking will provide the FMCSA the authority to require that unsatisfactory-rated motor carriers cease their operations in interstate commerce. Removing these motor carriers from the public highways will provide a very important, although unquantifiable, safety benefit. These motor carriers pose a significant safety risk to the traveling public because of their demonstrated refusal, or inability, to comply with the FMCSRs. This rule provides the FMCSA with an essential tool to take prompt and effective action against these motor carriers.

This rulemaking will not result in inconsistency or interference with another agency's actions or plans. It will, however, implement several specific congressional directives, including one prohibiting Federal agencies from using any motor carrier with an unsatisfactory safety rating to provide “any transportation service.” Therefore, all Federal agencies that contract for motor carrier passenger or freight transportation in CMVs must review the safety ratings of these contractors.

The rights and obligations of recipients of Federal grants will not be materially affected by this regulatory action.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612) the FMCSA has evaluated the effects of this rulemaking on small entities. Economically impacted by this rulemaking will be motor carriers of non-HM freight that receive an unsatisfactory safety rating on or after the effective date of this rule, and fail to take appropriate actions to improve their rating. As of March 1999, some 79 percent of the 483,385 active motor carriers in MCMIS were in the “very small” or “small” category (less than 21 power units). The FMCSA's statistical information contained in MCMIS indicates that relatively few small motor carriers of passengers or HM have received unsatisfactory safety ratings since 1994, the earliest date for which information is readily available, and fewer still did not improve their safety ratings based upon the FMCSA's follow-up CRs.

Tables 2 and 3 in the NPRM provided statistics on follow-up CRs of motor carriers of property (non-HM) for calendar years 1994 through 1998. As before, the large majority of these motor carriers that began a calendar year with an unsatisfactory safety rating had improved it by the end of the calendar year. As long as a motor carrier holds, or is able to improve to, a conditional or satisfactory rating, § 385.13 of this rule will not affect its ability to operate in interstate commerce. This rule does not impose new costs on motor carriers, however, it increases penalties for those that fail to take appropriate actions to improve the safety of their operations and their resulting safety rating. The FMCSA notes that no commenters to the NPRM addressed the data in the Regulatory Flexibility Act section. That data presented statistics on motor carriers of property initially rated unsatisfactory (NPRM Table 2) and the number of motor carriers starting and ending a calendar year with an unsatisfactory safety rating (NPRM Table 3).

Accordingly, the FMCSA certifies that this regulatory action will not have a significant economic impact on a substantial number of small entities.

This rule does not impose a Federal mandate resulting in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. (2 U.S.C. 1531 et seq. ).

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.

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

This rule implements a statutory mandate to prohibit interstate motor carrier operations found to be unsafe and therefore unfit. Motor carriers can avoid all of the implications of an unsatisfactory safety rating simply by complying with the FMCSRs. Furthermore, motor carriers with a proposed unsatisfactory safety rating will have at least 45 or 60 days, depending on the type of operation, to correct deficiencies identified by the FMCSA before halting operations in interstate commerce. Finally, even if a motor carrier were to suspend its operations, it can resume operations by correcting its deficiencies, coming into compliance with the FMCSRs, and demonstrating these improvements to the FMCSA.

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

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and it has been determined this action does not have a substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States. Nothing in this document directly preempts any State law or regulation. It will not impose additional costs or burdens on the States. Although section 4009 of TEA-21 requires the FMCSA to revise part 385 of the FMCSRs, States are not required to adopt part 385 as a condition for receiving Motor Carrier Safety Assistance Program (MCSAP) grants. Also, this action will not have a significant effect on the States' ability to execute traditional State governmental functions.

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

This action does not involve an information collection that is subject to the requirements of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

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

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

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

The amounts of the 2000 GOA AFA catcher vessel sideboards in Statistical Areas 620 and 630 were established by the Emergency Interim Rule to Implement Major Provisions of the American Fisheries Act (65 FR 4520, January 28, 2000, and extended at 65 FR 39107, June 23, 2000) as 864 mt, and 1,787 mt respectively in accordance with § 679.63(b).

In Statistical Area 620, the Administrator, Alaska Region, NMFS (Regional Administrator), has established a directed fishing allowance of 814 mt, and set aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries for this component of the fishery. In Statistical Area 630, the Regional Administrator has established a directed fishing allowance of 1,687 mt, and set aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries for this component of the fishery. These areas of the GOA were closed to directed fishing for pollock by non-exempt AFA vessels on January 21, 2000 (65 FR 4520, January 28, 2000).

NMFS has determined that as of August 12, 2000, 814 mt remain in the directed fishing allowance for Statistical Area 620 and 1,687 mt remain in the directed fishing allowance for Statistical Area 630. Therefore, NMFS is terminating the previous closure and is opening directed fishing for pollock by catcher vessels that are non-exempt under the AFA in Statistical Area 620 and Statistical Area 630 of the GOA.

All other closures remain in full force and effect. This action responds to the best available information recently obtained from the fishery. It must be implemented immediately in order to allow participation of catcher vessels that are non-exempt under the AFA. Providing prior notice and opportunity for public comment for this action is impracticable and contrary to the public interest. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.