Proposed Rules. Proposed rule

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BILLING CODE 3410-02-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 RIN 3150-AH95 Criticality Control of Fuel Within Dry Storage Casks or Transportation Packages in a Spent Fuel Pool AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule. SUMMARY: The Nuclear Regulatory Commission

(NRC)is proposing to amend its regulations that govern domestic licensing of production and utilization facilities so that the requirements governing criticality control for spent fuel pool storage racks would not apply to the fuel within a spent fuel transportation package or storage cask when a package or cask is in a spent fuel pool. These packages and casks are subject to separate criticality control requirements. This action is necessary to avoid applying two different sets of criticality control requirements to fuel within a package or cask in a spent fuel pool. DATES: The comment period for this proposed rule ends on December 18, 2006. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure only that comments received on or before this date will be considered. ADDRESSES: You may submit comments by any one of the following methods. Please include the following number RIN 3150-AH95 in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission. Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff. E-mail comments to: *SECY@nrc.gov.* If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at

(301)415-1966. You may also submit comments via the NRC's rulemaking Web site at *http://ruleforum.llnl.gov.* Address questions about our rulemaking Web site to Carol Gallagher at

(301)415-5905; e-mail *cag@nrc.gov.* Comments can also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov.* Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays [telephone

(301)415-1966]. Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at

(301)415-1101. Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, can be viewed and downloaded electronically via the NRC rulemaking Web site at *http://ruleforum.llnl.gov.* Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html.* From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to *pdr@nrc.gov.* FOR FURTHER INFORMATION CONTACT: George M. Tartal, Project Manager, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone

(301)415-0016, e-mail *gmt1@nrc.gov.* SUPPLEMENTARY INFORMATION: See the information provided in the direct final rule of the same title, which is found in the Rules and Regulations section of this **Federal Register** . Because the NRC considers this action non-controversial, we are publishing this proposed rule concurrently as a direct final rule. The direct final rule will become effective on January 30, 2007. However, if the NRC receives significant adverse comments on the direct final rule by December 18, 2006, then the NRC will publish a document that withdraws the direct final rule. If the direct final rule is withdrawn, the NRC will address the comments received in response to the proposed revisions in a subsequent final rule. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period for this action in the event the direct final rule is withdrawn. List of Subjects in 10 CFR Part 50 Antitrust, Classified information, Criminal penalties, Fire protection, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements. For the reasons set forth in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR part 50. PART 50—DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 1. The authority citation for part 50 continues to read as follows: Authority: Secs. 102, 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5841). Section 50.10 also issued under secs. 101, 185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237). 2. Section 50.68 is amended by adding a new paragraph

(c)to read as follows: § 50.68 Criticality accident requirements.

(c)While a spent fuel transportation package approved under Part 71 of this chapter or spent fuel storage cask approved under Part 72 of this chapter is in the spent fuel pool:

(1)The requirements in § 50.68(b) do not apply to the fuel located within that package or cask; and

(2)The requirements in Part 71 or 72 of this chapter, as applicable, and the requirements of the Certificate of Compliance for that package or cask, apply to the fuel within that package or cask. Dated at Rockville, Maryland, this 31st day of October, 2006. For the Nuclear Regulatory Commission. William F. Kane, Deputy Executive Director for Reactor and Preparedness Programs, Office of the Executive Director for Operations. [FR Doc. E6-19368 Filed 11-15-06; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF COMMERCE Bureau of Economic Analysis 15 CFR Part 801 [Docket No. 061005257-6257-01] RIN 0691-AA62 International Services Surveys: BE-185, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Foreign Persons AGENCY: Bureau of Economic Analysis, Commerce. ACTION: Notice of proposed rulemaking. SUMMARY: This proposed rule amends regulations of the Bureau of Economic Analysis, Department of Commerce

(BEA)to set forth the reporting requirements for the BE-185, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Foreign Persons. This rule would replace the rule for a similar but more limited survey, the BE-85, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Unaffiliated Foreign Persons. A new agency form number and survey title are being introduced because the survey program is being reconfigured to begin collection of data on transactions with affiliated foreigners using the same survey instruments as are used to collect information on transactions with unaffiliated foreigners. This change will allow respondents to report financial services transactions with foreign persons on one quarterly survey, rather than on as many as three different quarterly surveys. If adopted the BE-185 survey would be conducted quarterly beginning with the first quarter of 2007. The proposed BE-185 survey data would be used to update universe estimates from similar data reported on the BE-80, Benchmark Survey of Financial Services Transactions Between U.S. Financial Services Providers and Unaffiliated Foreign Persons and on the benchmark and quarterly direct investment surveys that were administered to collect data on transactions with affiliated foreign persons. DATES: Comments on this proposed rule will receive consideration if submitted in writing on or before 5 p.m. January 16, 2007. ADDRESSES: You may submit comments, identified by RIN 0691-AA62, and referencing the agency name (Bureau of Economic Analysis), by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. For agency, select “Commerce Department—all.” • E-mail: *Obie.Whichard@bea.gov* . • Fax: Office of the Chief, International Investment Division,

(202)606-5318. • Mail: Office of the Chief, International Investment Division, U.S. Department of Commerce, Bureau of Economic Analysis, BE-50, Washington, DC 20230. • Hand Delivery/Courier: Office of the Chief, International Investment Division, U.S. Department of Commerce, Bureau of Economic Analysis, BE-50, Shipping and Receiving, Section M100, 1441 L Street, NW., Washington, DC 20005. • Public Inspection: Comments may be inspected at BEA's offices, 1441 L Street, NW., Room 7006, between 8:30 a.m. and 5 p.m., eastern time Monday though Friday. FOR FURTHER INFORMATION CONTACT: Obie G. Whichard, Chief, International Investment Division (BE-50), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; e-mail; or phone

(202)606-9890. SUPPLEMENTARY INFORMATION: This proposed rule would amend 15 CFR 801.9 to replace the reporting requirements for the BE-85, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Unaffiliated Foreign Persons, with requirements for the BE-185, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Foreign Persons. The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Description of Changes The proposed BE-185 survey would be a mandatory survey and would be conducted, beginning with transactions for the first quarter of 2007, by BEA under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), hereinafter, “the Act.” For the initial quarter of coverage, BEA would send the survey to potential respondents in March of 2007; responses would be due by May 15, 2007. BEA maintains a continuing dialogue with respondents and with data users, including its own internal users, to ensure that, as far as possible, the required data serve their intended purposes and are available from existing records, that instructions are clear, and that unreasonable burdens are not imposed. In designing the BE-185 survey, BEA contacted potential survey respondents to obtain their views on the proposed quarterly survey. In reaching decisions on what questions to include in the survey, BEA considered the Government's need for the data, the burden imposed on respondents, the quality of the likely responses (for example, whether the data are available on respondents' books), and BEA's experience in previous related annual and quarterly surveys. If implemented the BE-185 would collect all the same information as the BE-85 but would also include financial services transactions with affiliated parties (i.e., with foreign affiliates, foreign parents, and foreign affiliates of foreign parents). BEA is currently collecting these transactions on its quarterly direct investment surveys (the BE-577, Direct Transactions of U.S. Reporter with Foreign Affiliate, the BE-605, Transactions of U.S. Affiliate, except a U.S. Banking Affiliate, with Foreign Parent, and the BE-605 Bank, Transactions of U.S. Banking Affiliate with Foreign Parent). These transactions with affiliated parties that are collected on BEA's quarterly direct investment surveys would now be collected on the BE-185. In addition, the BE-185 would also bifurcate the category for brokerage services into two categories, by collecting information on services related to equities transactions separately from other brokerage services. Survey Background The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, would conduct the BE-185 survey under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), hereinafter, “the Act” and Section 5408 of the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418, 15 U.S.C. 4908(b)). Section 4(a) of the Act (22 U.S.C. 3103(a)) provides that the President shall, to the extent he deems necessary and feasible, conduct a regular data collection program to secure current information related to international investment and trade in services and publish for the use of the general public and United States Government agencies periodic, regular, and comprehensive statistical information collected pursuant to this subsection. In Section 3 of Executive Order 11961, as amended by Executive Orders 12318 and 12518, the President delegated the responsibilities under the Act for performing functions concerning international trade in services to the Secretary of Commerce, who has redelegated them to BEA. The survey would provide a basis for updating estimates of the universe of financial services transactions between U.S. and foreign persons. The data are needed to monitor trade in financial services; analyze their impact on the U.S. and foreign economies; compile and improve the U.S. international transactions, national income and product, and input-output accounts; support U.S. commercial policy on financial services; assess and promote U.S. competitiveness in international trade in services; and improve the ability of U.S. businesses to identify and evaluate market opportunities. Executive Order 12866 This proposed rule has been determined to be not significant for purposes of E.O. 12866. Executive Order 13132 This proposed rule does not contain policies with federalism implications sufficient to warrant preparation of a federal assessment under E.O. 13132. Paperwork Reduction Act This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget

(OMB)under the Paperwork Reduction Act. The requirement will be submitted to OMB as a request for a revision of a currently approved collection under OMB control number 0608-0065. Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid Office of Management and Budget Control Number. The BE-185 quarterly survey, as proposed, is expected to result in the filing of reports containing mandatory data from approximately 175 respondents on a quarterly basis, or 700 annually. The respondent burden for this collection of information would vary from one respondent to another, but is estimated to average 10 hours per response (40 hours annually), including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus, the total respondent burden for the BE-185 survey is estimated at 7,000 hours, compared to 5,000 hours estimated for the previous BE-85 survey. The increase in burden is a result of the inclusion of transactions with affiliated foreign persons. Comments are requested concerning:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(b)the accuracy of the burden estimate;

(c)ways to enhance the quality, utility, and clarity of the information collected; and

(d)ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Comments should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230, fax: 202-606-5311; and the Office of Management and Budget, O.I.R.A., Paperwork Reduction Project 0608-0065, Attention PRA Desk Officer for BEA, via e-mail at *pbugg@omb.eop.gov* or by fax at 202-395-7245. Regulatory Flexibility Act The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. The information collection excludes most small businesses from mandatory reporting. Companies that engage in international transactions in financial services tend to be relatively large, thereby excluding them from the definition of small entity. In addition, the reporting threshold for this survey is set at a level that will exempt most small businesses from reporting. The proposed BE-185 quarterly survey will be required only from U.S. financial services providers whose sales of financial services to foreign persons exceeded $20 million for the previous fiscal year or are expected to exceed that amount during the current fiscal year, or whose purchases of financial services from foreign persons exceeded $15 million for the previous fiscal year or are expected to exceed that amount during the current fiscal year. This amount is applied to the combined total of the individual types of transactions covered by the survey. The exemption level will exclude most small businesses from mandatory coverage. Of those smaller businesses that must report, most will tend to have specialized operations and activities, so they would likely report only one type of transaction, often limited to transactions with a single partner country; therefore, the burden on them should be small. In addition, this survey mailing is a targeted mailing. Thus, since small businesses tend not to be involved in the transactions to be covered by the BE-185 survey, few small businesses should receive the survey. However, those receiving the survey are expected to incur a minimal burden in completing the exemption form. List of Subjects in 15 CFR Part 801 International transactions, Economic statistics, Financial services, Foreign trade, Penalties, Reporting and recordkeeping requirements. Dated: November 8, 2006. Sumiyo O. Okumo, Acting Director, Bureau of Economic Analysis. For the reasons set forth in the preamble, BEA proposes to amend 15 CFR part 801, as follows: PART 801—SURVEY OF INTERNATIONAL TRADE IN SERVICES BETWEEN U.S. AND FOREIGN PERSONS 1. The authority citation for 15 CFR part 801 continues to read as follows: Authority: 5 U.S.C. 301; 15 U.S.C. 4908; 22 U.S.C. 3101-3108; and E.O. 11961, 3 CFR, 1977 Comp., p.86, as amended by E.O. 12318, 3 CFR, 1981 Comp., p. 173, and E.O. 12518, 3 CFR, 1985 Comp., p. 348. 2. Revise § 801.9(c)(4). to read as follows: § 801.9 Reports required.

(c)Quarterly surveys. * * *

(4)BE-185, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Foreign Persons:

(i)A BE-185, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Foreign Persons, will be conducted covering the first quarter of the 2007 calendar year and every quarter thereafter.

(A)*Who must report—(1) Mandatory reporting.* Reports are required from each U.S. person who is a financial services provider or intermediary, or whose consolidated U.S. enterprise includes a separately organized subsidiary or part that is a financial services provider or intermediary, and that had sales of covered services to foreign persons that exceeded $20 million for the previous fiscal year or expects sales to exceed that amount during the current fiscal year, or had purchases of covered services from foreign persons that exceeded $15 million for the previous fiscal year or expects purchases to exceed that amount during the current fiscal year These thresholds should be applied to financial services transactions with foreign persons by all parts of the consolidated U.S. enterprise combined that are financial services providers or intermediaries. Because the thresholds are applied separately to sales and purchases, the mandatory reporting requirement may apply only to sales, only to purchases, or to both sales and purchases. Quarterly reports for a year may be required retroactively when it is determined that the exemption level has been exceeded. ( *i* ) The determination of whether a U.S. financial services provider or intermediary is subject to this mandatory reporting requirement may be based on the judgement of knowledgeable persons in a company who can identify reportable transactions on a recall basis, with a reasonable degree of certainty, without conducting a detailed records search. ( *ii* ) Reporters who file pursuant to this mandatory reporting requirement must provide data on total sales and/or purchases of each of the covered types of financial services transactions and must disaggregate the totals by country. ( *2* ) *Voluntary reporting.* If a financial services provider or intermediary, or all of a firm's subsidiaries or parts combined that are financial services providers or intermediaries, had covered sales of $20 million or less, or covered purchases of $15 million or less during the previous fiscal year, and if covered sales or purchases are not expected to exceed these amounts in the current fiscal year, a person is requested to provide an estimate of the total for each type of service for the most recent quarter. Provision of this information is voluntary. The estimates may be based on the reasoned judgement of the reporting entity. Because these thresholds apply separately to sales and purchases, voluntary reporting may apply only to sales, only to purchases, or to both.

(B)*BE-185 definition of financial services provider.* The definition of financial services provider used for this survey is identical in coverage to Sector 52 B Finance and Insurance, and holding companies that own or influence, and are principally engaged in making management decisions for these firms (part of Sector 55 B Management of Companies and Enterprises) of the North American Industry Classification System, United States, 2002. For example, companies and/or subsidiaries and other separable parts of companies in the following industries are defined as financial services providers: Depository credit intermediation and related activities (including commercial banking, savings institutions, credit unions, and other depository credit intermediation); nondepository credit intermediation (including credit card issuing, sales financing, and other nondepository credit intermediation); activities related to credit intermediation (including mortgage and nonmortgage loan brokers, financial transactions processing, reserve, and clearinghouse activities, and other activities related to credit intermediation); securities and commodity contracts intermediation and brokerage (including investment banking and securities dealing, securities brokerage, commodity contracts dealing, and commodity contracts brokerage); securities and commodity exchanges; other financial investment activities (including miscellaneous intermediation, portfolio management, investment advice, and all other financial investment activities); insurance carriers; insurance agencies, brokerages, and other insurance related activities; insurance and employee benefit funds (including pension funds, health and welfare funds, and other insurance funds); other investment pools and funds (including open-end investment funds, trusts, estates, and agency accounts, real estate investment trusts, and other financial vehicles); and holding companies that own, or influence the management decisions of, firms principally engaged in the aforementioned activities.

(C)*Covered types of services.* The BE-185 survey covers the following types of financial services transactions (purchases and/or sales) between U.S. financial services providers and foreign persons: Brokerage services related to equities transactions; other brokerage services; underwriting and private placement services; financial management services; credit-related services, except credit card services; credit card services; financial advisory and custody services; securities lending services; electronic funds transfer services; and other financial services.

(ii)[Reserved] [FR Doc. E6-19409 Filed 11-15-06; 8:45 am] BILLING CODE 3510-06-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [CGD01-06-027] RIN 1625-AA01 Anchorage Regulations; Port of New York AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to revise the duration vessels are authorized to anchor in specific anchorage grounds within the Port of New York and New Jersey (PONYNJ). This proposed action is necessary to facilitate safe navigation and provide for the overall safe and efficient flow of waterborne commerce. This proposed action is intended to better facilitate the efficient use of the limited deep water anchorage grounds available in PONYNJ. DATES: Comments and related material must reach the Coast Guard on or before December 18, 2006. ADDRESSES: You may mail comments and related material to Waterways Management Division (CGD01-06-027), Coast Guard Sector New York, 212 Coast Guard Drive, Room 321, Staten Island, New York 10305. The Waterways Management Division of Coast Guard Sector New York maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room 321, Coast Guard Sector New York, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Commander M. McBrady, Waterways Management Division, Coast Guard Sector New York at

(718)354-2353. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-06-027), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Waterways Management Division at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose The Coast Guard proposes to revise the duration that vessels are authorized to anchor in Federal Anchorage Grounds 19, 21-A, 21-B, 21-C, and 25 in the PONYNJ. These proposed revisions are necessary due to the limited amount of deep water anchorage space available in the Hudson River, Upper and Lower Bay of New York Harbor. In recent years, as the number of ships in port has increased and their sizes have grown, the anchorage grounds have frequently been filled to capacity. According to the Harbor Safety, Operations, and Navigation Committee of the Port of New York and New Jersey (HAROPS), which represents a broad spectrum of the local maritime industry, having adequate anchorage space is critical to the overall safety and economic vitality of the port. The limited availability of anchorage space has caused undue economic burden for ships that are forced to anchor outside the port in the vicinity of Ambrose Tower, sometimes for days, while awaiting anchorage space. Vessels have been unable to complete their business, including re-supply, lightering, and bunkering, in a cost-efficient manner and sometimes have forgone obtaining services in New York because of the delays. The unavailability of anchorage space also increases safety risks by forcing ships to take on provisions while underway and potentially preventing ships from anchoring in an emergency. The proposed revisions would increase the availability of anchorage space by reducing the amount of time that a vessel may remain at anchor. The revisions would also limit the number vessels from loitering in the lower Hudson River, Bay Ridge, and Gravesend Bay anchorages. Discussion of Proposed Rule The proposed rule would establish a 96-hour limit on the duration of stay for vessels anchoring in Federal Anchorage Grounds 19, 21-A, 21-B, 21-C, and 25. Currently, 33 CFR 110.155(k)(3) establishes an impractical anchorage duration of 30 days. We note that the 48-hour limit for anchoring in Stapleton Anchorage (Federal Anchorage Grounds 23-A, 23-B, and 24) and Federal Anchorage Ground 44 would remain the same and not be affected by this proposed rule. Implementing this time restriction for the lower Hudson River, Bay Ridge, and Gravesend Bay anchorage grounds will provide for the effective use of this valuable and limited port resource, thus, minimizing vessel delays. The affected Anchorage Grounds would continue to be managed by the Coast Guard Vessel Traffic Service New York (VTS). As part of their anchorage management function, VTS New York will make decisions on requests to extend a vessel's stay at an anchorage beyond the prescribed duration limit. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. This finding is based on the following facts: This proposal would allow the Coast Guard to better manage the increasing and changing needs of commercial vessels and to make the best use of the limited available Anchorage Grounds. Vessels normally complete bunkering or lightering operations within the Anchorage Grounds within 48 hours. Additionally, due to security concerns at facilities, more vessels need to replenish supplies while at anchor, which normally takes no longer than 8 hours. This proposal would allow shipping lines, owners, agents, and others in the shipping industry to operate more efficiently in the Port of New York and New Jersey. The current 30-day limit for vessels to remain at anchor is an inefficient use of the limited, extremely busy Anchorage Grounds within the PONYNJ since vessels not conducting port related operations could easily anchor offshore while awaiting pier space, supply deliveries, sailing orders, etc. Additionally, this proposal would allow the commercial vessel industry to more efficiently conduct final preparations for sea in a protected Anchorage Ground, as opposed to conducting preparations during outbound transit in the vicinity of the six vessel traffic lanes that converge on Ambrose Light (LLNR 720). This proposed rule is in the interest of safe and efficient navigation. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to anchor in a portion of the Hudson River, Upper New York Bay, or Lower New York Bay. This proposal, however, would not have a significant economic impact on these entities for the reasons stated above in the Regulatory Evaluation section. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander M. McBrady, Waterways Management Division, Coast Guard Sector New York at

(718)354-2353. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed 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. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(f), of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(f) as it would revise the duration a vessel could anchor in a Federal Anchorage Ground. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES . Comments on this section will be considered before we make the final decision on whether the rule should be categorically excluded from further environmental review. List of Subjects in 33 CFR Part 110 Anchorage grounds. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows: PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority: 33 U.S.C. 471; 1221 through 1236, 2030, 2035 and 2071; 33 CFR 1.05-1(g); and Department of Homeland Security Delegation No. 0170.1. 2. Amend § 110.155 by adding paragraphs (c)(5)(vi), (d)(10)(ii), (d)(11)(iii), (d)(12)(iii), and (e)(1)(iii), to read as follows: § 110.155 Port of New York.

(c)* * *

(5)* * *

(vi)No vessel may occupy this anchorage for a period of time in excess of 96 hours without prior approval of the Captain of the Port.

(d)* * *

(10)* * *

(ii)No vessel may occupy this anchorage for a period of time in excess of 96 hours without prior approval of the Captain of the Port.

(11)* * *

(iii)No vessel may occupy this anchorage for a period of time in excess of 96 hours without prior approval of the Captain of the Port.

(12)* * *

(iii)No vessel may occupy this anchorage for a period of time in excess of 96 hours without prior approval of the Captain of the Port.

(e)* * *

(1)* * *

(iii)No vessel may occupy this anchorage for a period of time in excess of 96 hours without prior approval of the Captain of the Port. Dated: October 30, 2006. Timothy S. Sullivan, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District. [FR Doc. E6-19314 Filed 11-15-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD08-06-037] RIN 1625-AA09 Drawbridge Operation Regulation; Mississippi River, Iowa and Illinois AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard is proposing to change the regulation governing the operation of the Illinois Central Railroad Drawbridge, Mile 579.9, Upper Mississippi River at Dubuque, Iowa. Under the proposed rule, the drawbridge would open on signal if at least 24 hours advance notice is given from 12:01 a.m., on December 15, 2006 until 8 a.m., on March 15, 2007. This would allow time for making upgrades to critical mechanical components and performing scheduled annual maintenance/repairs to the bridge and pier protection. DATES: Comments and related material must reach the Coast Guard on or before December 18, 2006. ADDRESSES: You may mail comments and related material to Commander, Eighth Coast Guard District, Bridge Branch, 1222 Spruce Street, St. Louis, MO 63103-2832. Commander

(dwb)maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room 2.107f in the Robert A. Young Federal Building, Eighth Coast Guard District, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Roger K. Wiebusch, Bridge Administrator,

(314)269-2378. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD08-06-037), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Eighth Coast Guard District, Bridge Branch, at the address under ADDRESSES explaining why one would be beneficial. If we determine that a meeting would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose On September 12, 2006, the Chicago, Central & Pacific Railroad requested a temporary change to the operation of the Illinois Central Railroad Drawbridge, across the Upper Mississippi River, Mile 579.9, at Dubuque, Iowa to open on signal if at least 24 hours advance notice is given to facilitate critical bridge repair and annual maintenance. The Illinois Central Railroad Drawbridge navigation span has a vertical clearance of 19.9 feet above normal pool in the closed to navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft and will not be significantly impacted due to the reduced navigation in winter months. Presently, the draw opens on signal for passage of river traffic. The Chicago, Central & Pacific Railroad requested the drawbridge be permitted to remain closed-to-navigation from 12:01 a.m., December 15, 2006 until 8 a.m., March 15, 2007 unless 24 hours advance notice is given of the need to open. Winter conditions on the Upper Mississippi River coupled with the closure of Lock and Dam 11, Mile 583.0, Upper Mississippi River, at Dubuque, Iowa from January 2, 2007 until February 28, 2007 will preclude any significant navigation demands for the drawspan opening. The Illinois Central Railroad Drawbridge, Mile 579.9, Upper Mississippi River, is located just downstream from Lock and Dam 11. Performing maintenance on the bridge and pier protection during the winter, when the number of vessels likely to be impacted is minimal, is preferred to the bridge closure or advance notification requirements during the navigation season. This temporary change to the drawbridge's operation has been coordinated with the commercial waterway operators. Discussion of Proposed Rule The proposed temporary rule is to add a new paragraph to § 117.671. The drawbridge by regulation is to open on signal. This proposed rule would allow the drawbridge to open on signal if at least 24 hours advance notice is given from 12:01 a.m., on December 15, 2006 until 8 a.m., on March 15, 2007. This proposed rule will allow time for making upgrades to critical mechanical components and perform scheduled annual maintenance/repairs to the bridge and pier protection. Regulatory Evaluation The proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). The Coast Guard expects that this temporary change to operation of the Illinois Central Railroad Drawbridge will have minimal economic impact on commercial traffic operating on the Upper Mississippi River. This temporary change has been written in such a manner as to allow for minimal interruption of the drawbridge's regular operation. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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. This proposed rule will have a negligible impact on vessel traffic. The primary users of the Upper Mississippi River in Dubuque, Iowa are commercial towboat operators. With the onset of winter conditions, most activity on the Upper Mississippi River is curtailed and there are few, if any, significant navigation demands for opening the drawspan. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they could better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Mr. Roger K. Wiebusch, Bridge Administrator, Eighth Coast Guard District, Bridge Branch, at

(314)269-2378. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Government Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed 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. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore this rule is categorically excluded under figure 2-1, paragraph 32(e) of the Instruction from further environmental documentation. Paragraph 32(e) excludes the promulgation of operating regulations or procedures for drawbridges from the environmental documentation requirements of the National Environmental Policy Act (NEPA). Since this proposed regulation would alter the normal operating conditions of the drawbridge, it falls within this exclusion. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES . List of Subjects in 33 CFR Part 117 Bridges. Regulations For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1; section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. From 12:01 a.m., December 15, 2006 until 8 a.m., March 15, 2007 in § 117.671 add new paragraph

(c)to read as follows: § 117.671 Upper Mississippi River.

(c)The Illinois Central Railroad Drawbridge, Mile 579.9, Upper Mississippi River at Dubuque, Iowa shall open on signal if at least 24 hours notice is given. Dated: October 18, 2006. J.R. Whitehead, Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District. [FR Doc. E6-19311 Filed 11-15-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD08-06-013] RIN 1625-AA09 Drawbridge Operation Regulation; Illinois Waterway, Illinois AGENCY: Coast Guard, DHS. ACTION: Supplemental notice of proposed rulemaking. SUMMARY: The Coast Guard has revised its proposal to change the operation of the Pekin Railroad Drawbridge, Mile 151.2, at Pekin, Illinois and the Chessie Railroad Drawbridge, Mile 254.1 at Seneca, Illinois across Illinois Waterway. The present regulation requires revision to reflect the actual procedures that have always been followed. The current regulation was intended to be temporary, for test purposes only, and was inadvertently permanently included. The revision would eliminate the “Specific Requirements” for remote operation and the bridge would continue to operate, as required by the Coast Guard, under the “General Requirements”. In addition the Coast Guard proposes to change the regulation governing the operation of the Chessie Railroad Drawbridge across the Illinois Waterway, Mile 254.1, at Seneca, Illinois. The existing regulation requires the drawspan to open on signal. This change is necessary to reflect a change in operating procedure. DATES: Comments and related material must reach the Coast Guard on or before January 16, 2007. ADDRESSES: You may mail comments and related material to Commander, Eighth Coast Guard District, Bridge Branch, 1222 Spruce Street, St. Louis, MO 63103-2832. Commander

(NPRM)titled Drawbridge Operation Regulation; Illinois Waterway, IL in the **Federal Register** (71 FR 36295). We received no comments on the proposed rule. No public hearing was requested, and none was held. Background and Purpose A test period to remotely operate the Pekin Railroad Drawbridge, Mile 151.2, across the Illinois Waterway was proposed by the bridge owner and determined that remote operation was not feasible. The bridge owner withdrew the proposal and the Coast Guard required the continued on-site operation of the bridge. The bridge is not remotely operated. The bridge owner has always maintained an on-site bridge operator for the bridge. However, the temporary regulation allowing the test period was inadvertently published in 33 CFR 117, Subpart B. This proposed rulemaking will correct the drawbridge operating regulations to reflect Coast Guard approved operating conditions presently adhered to by the bridge owner and waterway users. 33 CFR requires the Chessie Railroad Drawbridge, mile 254.1, Illinois Waterway at Seneca, Illinois to open on signal for the passage of vessels. Due to reduced train use, the bridge owner removed the bridgetender, maintains the draw span in the fully open position and allows train operators to close the bridge. This action was taken without proper Coast Guard notification or approval. The proposed rule would improve the navigation safety of bridge operations by establishing a method of operation and communication between vessels and bridge closure personnel. Discussion of Proposed Rule The rule proposed by this SNPRM includes two separate changes to existing regulation § 117.393. The first change would delete § 117.393(b), which requires remote operation of the Pekin Railroad Drawbridge. If the remote operation requirement is deleted, it will have no impact on river or rail traffic because the bridge will continue to be operated on-site and open on demand for passage of river traffic. Removing the regulation for remote operation will allow the bridge owner to not install additional equipment and to not operate the bridge from a remote location to meet the regulation. The second change to § 117.393 would add a new paragraph

(b)to § 117.393. The Chessie Railroad Drawbridge is currently maintained in the fully open position and train operators close the draw span to allow trains to pass. This proposed rule would improve the navigation safety of bridge operations by establishing a method of operation and communication between vessels and bridge closure personnel. This proposed rule will accurately depict how the bridge is operated. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security. The Coast Guard expects that these changes will have no economic impact on commercial traffic operating on the Illinois Waterway. The proposed regulation changes will not affect the present safe operation of the bridges. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L 104-121), we want to assist small entities in understanding this proposed rule so that they could better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Mr. Roger K. Wiebusch, Bridge Administrator, Eighth Coast Guard District, Bridge Branch, at

(314)269-2378. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed 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. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore this rule is categorically excluded under figure 2-1, paragraph 32(e) of the Instruction from further environmental documentation. Paragraph 32(e) excludes the promulgation of operating regulations or procedures for drawbridges from the environmental documentation requirements of NEPA. Since this proposed regulation would alter the normal operating conditions of the drawbridge, it falls within this exclusion. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES . List of Subjects in 33 CFR Part 117 Bridges. Regulations For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 017.1; section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. Revise § 117.393(b) to read as follows: § 117.393 Illinois Waterway.

(b)The draw of the Chessie Railroad Bridge, mile 254.1, at Seneca, Illinois, operates as follows:

(1)The draw is normally maintained in the fully open position, displaying green mid-channel lights to indicate the span is fully open.

(2)When a train approaches the bridge and the draw is in the open position, the train will stop, train operator shall walk out on the bridge and scan the river for approaching vessels.

(3)If a vessel is approaching the bridge, the draw will remain open. The vessel shall contact the train operator on VHF-FM channel 16 and the train operator shall keep the draw in the fully open position until the vessel has cleared the bridge.

(4)If no vessels are observed, the train operator initiates a five minute warning period on VHF-FM radio channel 16 before closing the bridge. The train operator will broadcast the following message: “The Chessie Railroad Bridge at Mile 254.1, Illinois River, will close to navigation in five minutes.” The announcement is repeated every minute counting down the time remaining until closure.

(5)At the end of the five minute warning period, and if no vessels are approaching the bridge, the train operator shall sound the siren for 10 seconds, activate the alternate flashing red lights on top of the draw, then lower and lock the draw in place. Red lights shall continue to flash to indicate the draw is closed to navigation.

(6)After the train has cleared the bridge, the draw shall be raised to its full height and locked in place, the red flashing lights stopped, and the draw lights changed from red to green. Dated: October 19, 2006. Ronald W. Branch, Captain, U.S. Coast Guard, Commander, 8th Coast Guard Dist. Acting. [FR Doc. E6-19310 Filed 11-15-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Parts 241, 251, 261 RIN 0596-AC33 Piscicide Applications on National Forest System Lands AGENCY: Forest Service, USDA. ACTION: Proposed rule; request for public comments. SUMMARY: The Forest Service proposes to amend Title 36 Code of Federal Regulations

(CFR)parts 241, 251 and 261. Relevant sections of the Forest Service Manual

(FSM)2151, 2152, 2153, 2610, 2651 and 2719; and Forest Service Handbook

(FSH)2109.14, would also be revised to reflect the changes in the regulations. Title 36 CFR part 241 addresses the cooperation between the agency and State fish and game management agencies and governs the agency's responsibility in these partnerships. Part 251 sets out requirements governing special uses on National Forest System lands and identifies the categories of uses for which a special use authorization is required. Part 261, subpart A sets out the general prohibitions of activities on National Forest System lands, while subpart B provides for prohibition of activities on National Forest System lands by closure orders. The proposed amendment to the rule would result in three changes. The principle change, in part 241, would establish criteria for State piscicide use on National Forest System lands, outside designated Wild and Scenic Rivers or Congressionally designated Wilderness and Wilderness Study Areas. A provision that State piscicide applications outside designated Wilderness and Wilderness Study Areas are not “special uses” requiring special use authorization would be added to 36 CFR 251.50. A paragraph would be inserted into 36 CFR 261.50 to specifically provide for closure of an area, under specific circumstances, to prohibit piscicide application. In addition, the ambiguous phrase “other minor uses,” which refers to pesticide uses, would be eliminated in 36 CFR 261.9(f). The proposed rule changes would provide an efficient and standardized national approach for the application of piscicides by State agencies on National Forest System lands while retaining the Forest Service's authority over such use. Public comment is invited and will be considered in development of the final rule. DATES: Comments must be received, in writing, January 16, 2007. ADDRESSES: Written comments concerning this notice should be addressed to Dr. Jesus A. Cota at Forest Health Protection Staff, 1601 N. Kent St., RPC, 7th Floor (FHP), Arlington, VA 22209. Comments for Dr. Jesus A. Cota may be sent via e-mail to *pesticiderule@fs.fed.us* or via facsimile to

(703)605-5353. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Forest Service office of the Forest Health Protection staff, 1601 N. Kent St., RPC, 7th Floor (FHP), Arlington, VA 22209. Due to security requirements, visitors are encouraged to call ahead to

(703)605-5352 to facilitate entry to the building. FOR FURTHER INFORMATION CONTACT: Dr. Jesus A. Cota at Forest Health Protection Staff, at

(703)605-5344 (e-mail: *jcota@fs.fed.us* ) or Ronald Dunlap at Watershed, Fish, Wildlife, Air and Rare Plants Staff, at

(202)205-1790 (e-mail: *rldunlap@fs.fed.us* ). Individuals who use telecommunication devices for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339 between 8 a.m. and 8 p.m., eastern standard time, Monday through Friday. SUPPLEMENTARY INFORMATION: State agencies and the Forest Service share responsibility for the protection and management of fish and wildlife populations on National Forest System

(NFS)lands. A number of Federal land management statutes acknowledge the States' traditional role in managing fish and wildlife populations by affirming that the statutes do not affect the jurisdiction or responsibilities of the States with respect to wildlife and fish on the National Forests; see the Organic Administration Act at 16 U.S.C. 480; the Multiple-Use Sustained-Yield Act at 16 U.S.C. 528; the Sikes Act at 16 U.S.C. 670h; the Federal Land Policy and Management Act at 43 U.S.C. 1732; and the Wilderness Act at 16 U.S.C. 1131-1136. In acknowledging State jurisdiction and responsibilities, however, these statutes do not diminish the Federal Government's coexistent jurisdiction and responsibilities. Overall, the Forest Service and State agencies have enjoyed long-standing and mutually beneficial partnerships. On some management issues, such as hunting and fishing, the States generally exercise virtually all management responsibility. On other issues, Forest Service and the States exercise their responsibilities cooperatively, with the State and Forest Service working out issues in order to satisfy any concerns. This cooperative, informal approach has generally worked except on occasions when Forest Service special authorizations have been required. Under the current rules, the States must obtain special use authorization for the application of pesticides, including piscicides, on units of the NFS. Piscicides are chemicals intended to kill fish. Piscicides are the most effective means of eradicating invasive species or making habitat—streams, lakes or other bodies of water—available for desired aquatic species. A State piscicide project is generally understood to include the following activities: The ground transportation of supplies, equipment and personnel to and from the project site; the construction or setup of a temporary downstream barrier to ensure that target species do not escape the application of the piscicide (typically a block net, in place for a month or less); the application of an Environmental Protection Agency

(EPA)approved piscicide to the target waters; the detoxification of the waters by chemically neutralizing the effects of the piscicide; and pretreatment and post treatment monitoring. The proposed amendment to the rule would strengthen the cooperative relationship between the Forest Service and the State(s) by setting criteria for State piscicide use on NFS lands; where a State piscicide use meets the criteria, it may proceed. The rule does not change the Forest Service's ability to use a closure order to preclude the action where necessary to protect NFS resources. Not requiring the special use authorization process for State piscicide applications would reduce the time between a State's proposing an action and the execution of that action. A State would know beforehand the precise information it must supply the Forest Service before it can proceed with a piscicide project and would need not wait for a special use authorization to be granted. Timing is important in accomplishing piscicide projects, particularly with respect to control and eradication of invasive species. Where rapid control or eradication of invasive species is not possible, risk to native fish can increase dramatically, as can control costs. The special use authorization process has often resulted in increased costs or failure to achieve management goals, such as control of invasive species; recovery, downlisting or delisting of threatened and endangered species; and has caused friction in long-standing State-Federal partnerships. The standard set of criteria established in the rule also would provide consistency from NFS unit to unit, and State to State. Currently, a State with a number of national forests within its borders may have to meet a different set of criteria or conditions for each of those NFS units. Over time, a State may have to meet a different criteria within the same NFS unit. Under the proposed rule, a State would know the criteria it must meet on any NFS unit. Moreover, the same criteria would apply to every State. The criteria have been designed to eliminate duplicative State and Federal procedures while ensuring adequate protection of resources. Although the Forest Service proposes to change the manner in which it exercises its responsibilities, it does not anticipate that this rule change would change the frequency and manner of piscicide use by States on NFS land. State and Forest Service cooperation has always extended to such use, and, as described in the “Section-by-section explanation of the proposed rule,” the criteria that would be established in this Rule are practices that generally have been required by Forest Service authorizations, and by the States themselves on their operations. The reporting requirements also would formalize a long-standing practice. The Forest Service is required to maintain records of restricted-use pesticides and to annually report all pesticide use on its lands. In addition, field units are required to report to the Washington Office all accidents and incidents involving pesticides; this provision is included to ensure that the Forest Service will have a thorough accounting of use on National Forest System lands. The rule does not change the requirement that States obtain a special use authorization to use piscicides within congressionally designated wilderness and wilderness study areas, as well as designated wild and scenic rivers. The Wilderness Act provides that “each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area,” and also that “except as necessary to meet minimum requirements for the administration of the area for the purposes of this Act * * * there shall be no * * * use of motor vehicles, motorized equipment or motorboats, * * * no other form of mechanical transport, and no structure or installation within any such area.” The Forest Service must retain its authority to determine whether a proposed piscicide application would be appropriate in wilderness, particularly where motorized equipment or installation of temporary structures would be involved, as is often the case. Likewise, it is appropriate for the Forest Service to require that States obtain special use authorization within the Wild and Scenic Rivers System, to ensure protection of the values for which each river has been added to the National Wild and Scenic Rivers System (see 16 U.S.C. 1272). Because Congress typically requires the Forest Service to manage wilderness study areas so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System (see, for example the Montana Wilderness Study Act, Pub. L. 95-150, 91 Stat 1243 (1977)), the U. S. Department of Agriculture

(USDA)believes that the Forest Service also should require special use authorization for State piscicide actions in such areas. Section-by-Section Explanation of the Proposed Rule Proposed Changes to 36 CFR Part 241 A portion of the text of the current section 241.2 would be designated as paragraph (a), and new paragraphs (b)(1) through (b)(4)(ii) would be added to specifically refer to State application of piscicides within the National Forest System. Paragraph (b)(1) would require the State to provide notice of a piscicide project to the supervisor for the NFS unit within which the project would take place. This provision requires communication between State and Federal agencies regarding any fish or wildlife management project the State undertakes on Federal land, and specifies the particular information to provide regarding the piscicide project. The proposed rule provides that 60 days prior to the date the project is to take place, the State is to give the Forest Service notice of the reason for the project; its location and scope; the specific piscicide and amount to be applied; the method of application; and the time period in which the project would occur. The qualifications of the persons to apply the piscicide must be stated. The Forest Service believes that 60 days is an appropriate time period in which the Forest Service can consider whether it has concerns about the project, and the State and Forest Service can address and satisfy those concerns. The information required to be provided would help ensure that the Forest Service has sufficient information to know that the project would fit the criteria set out in paragraphs (b)(3)(i) through (b)(3)(vi), so that the project may proceed. Paragraph (b)(3) on criteria allows the Forest Service to waive the 60-day notice period in an emergency, when rapid action is necessary, such as to eradicate an invasive species that has the potential to increase quickly. Paragraph (b)(2) identifies reporting requirements. By December 1 of each year, the State is required to report to the applicable supervisor all piscicide projects the State has conducted during the Federal fiscal year (October 1-September 30) on the administrative unit under the supervisor's responsibility. The information is necessary for the Forest Service field units to fulfill their recording of restricted-use pesticides as required under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and to report to the Washington Office all pesticide use on National Forest System lands. This section also requires immediate reporting of accidents or incidents involving piscicide use on the administrative unit. Examples of accidents or incidents to report are: piscicide spills, crashes of aircraft or vehicle with piscicides on board, and injury or fatality of application personnel for any reason in the preparation or execution of the project piscicide. Paragraph (b)(3)(i) through

(vi)provides that States need not obtain special use authorization for piscicide projects that are outside Congressionally designated Wilderness, Wilderness Study Areas, and designated Wild and Scenic Rivers and that meet certain criteria set out in that paragraph. The project must be in compliance with all Federal laws and regulations, and must be consistent with the Land and Resource Management Plan for the administrative unit within which the project will occur, in addition to any applicable or relevant aquatic resource recovery plan or species management plan. The piscicide to be applied must be registered for that purpose with EPA, and restricted use piscicide must be applied by certified personnel or under the supervision of a certified pesticide applicator. The purpose of the project must be for the management of aquatic resources. The Forest Service expects that projects would continue to be carried out for the reintroduction, maintenance, or enhancement of native and desired species, particularly in habitat occupied by invasive species; and to maintain sport fisheries. Also, the project must be designed to ensure that there is no long-term impairment to ecosystem functions, or unreasonable interference with other uses on National Forest System lands. Some short-term impairment, such as a temporary reduction in macro-invertebrate populations, is a common consequence of piscicide application, and would not preclude a piscicide project that meets all the criteria in the rule from going forward on National Forest System lands. A project of such extent and intensity that would result in long-term impairment of ecosystem functions, however, would not meet this criterion. In addition, the project must be designed so that it would not interfere with other uses, such as shortly before a holiday weekend when many visitors may be in the area. The project design must include a plan for monitoring to determine that the project was effective in meeting its objectives, that detoxification successfully neutralized the piscicide, the extent, if any, to which the piscicide had drifted, and the impacts to non-target species within and outside the treatment area. Like the other criteria, this criterion is not expected to impose a new responsibility on the States, as monitoring is always an integral part of State piscicide projects. Finally, the State must have reported on past piscicide projects, as required by this section at (b)(2). Paragraph (b)(4)(i) would confirm that State piscicide projects within Congressionally designated Wilderness, Wilderness Study Areas and designated Wild and Scenic Rivers remain subject to Forest Service special use authorization requirements. Paragraph (b)(4)(ii) affirms the normal requirement that States, engaged in wildlife and fish management activities including piscicide projects, must obtain a special use authorization for access over closed roads, trails or areas, or for construction or placement of structures and installations on NFS lands, unless a structure or installation would be temporary and necessary to a piscicide project. Proposed Changes to 36 CFR Part 251 Part 251, Subpart B governs special use authorization requirements on National Forest System lands and identifies the categories of activities that require a special use authorization and those that do not. The change to section 251.50 would include the application of piscicides by State fish and game management agencies on National Forest System lands, consistent with proposed 36 CFR 241.2(b), in the category of activities that do not require a special use authorization. Proposed Changes to 36 CFR Part 261 Part 261 governs the prohibitions of activities on National Forest System lands. Section 261.9(f) specifically prohibits the use of pesticides on National Forest System lands and also identifies the exceptions to this prohibition. The application of piscicides by State fish and game management agencies in accordance with the criteria in section 241.2(b) would be included in this list of exceptions. The phrase “other minor uses” would be removed from the exceptions in this list. The phrase is being removed to acknowledge that special use authority may be issued for any pesticide use, not just minor uses. Section 261.10(a) currently lists activities, including constructing, placing or maintaining any kind of road, trail, structure, fence, enclosure, communications equipment, or other improvement on National Forest System lands or facilities that are prohibited except as permitted under the use of such written instruments as a special use authorization, contract or operating plan. This section currently states that these activities are prohibited unless the requirement of such a written instrument is waived pursuant to section 251.50(e). Since State piscicide application activities can include the set up or construction of a temporary downstream barrier, those activities listed under paragraph

(a)of section 251.50 are being added to section 261.10(a). Section 261.50 governs the use of closure orders, including the authority, method of posting, and the different reasons for which an order can be issued. The proposed changes to this section would specify the triggers that can result in the issue of a closure order by the Forest Service in order to prohibit a State piscicide project on National Forest System lands. One trigger would be if the criteria listed in 36 CFR 241.2(b) are not met. An additional trigger would include the occurrence of an existing fire incident or other emergency that threatens public safety so that a piscicide application at such time would not be appropiate. The Forest Service believes that it will rarely have to use the proposed closure authority. The usual cooperative relationships with States should ensure that any problems will be worked out well before the point of issuing an order. Nevertheless, the Forest Service believes it must retain the option to close an area to piscicide use, if necessary. In summary, the principle change under the proposed rule would be that a special use authorization for State piscicide projects on National Forest Systems lands except in Wilderness and Wilderness Study Areas would no longer be required. Instead, States would be required to meet specific criteria (36 CFR 241.2(b)) to apply piscicides, and the Forest Service will continue to retain final authority over piscicide use on National Forest Service lands by means of closure orders instead of special use authorizations. This change would not apply to piscicide projects proposed in designated Wild and Scenic Rivers and Congressionally designated Wilderness and Wilderness Study Areas. Although piscicide projects in these areas are not prohibited, because of the additional considerations due to the special character of such areas, as defined in the Wild and Scenic Rivers Act and the Wilderness Act, State piscicide projects proposed in these areas would remain subject to Forest Service special use authorization requirements. The practice and frequency of piscicide applications by States on National Forest System lands is not expected to change as a result of the amendment of the rule. The proposed rule change would provide a consistent, standardized national approach for the application of piscicides on National Forest System lands by State agencies, would eliminate the delays associated with the Forest Service special use authorization process, and would strengthen long-term Federal and State partnerships. The benefit to the States, the Forest Service, and the public that would be realized as a result of this proposed rule change is the ability for State agencies to proceed in a timely manner with piscicide projects to achieve aquatic management objectives which include the restoration of aquatic ecosystems, the recovery of listed species, and the rapid response to discoveries of new or rapidly spreading invasive species. Regulatory Certifications Regulatory Impact This proposed rule has been reviewed under USDA procedures and Executive Order (E.O.) 12866 on Regulatory Planning and Review. The Office of Management and Budget

(OMB)has determined that this is a non-significant rule as defined by E.O 12866. This proposed rule will not have an annual effect of $100 million or more on the economy, nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This proposed rule would not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this proposed rule will not alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients of such programs. Therefore, it has been determined that this proposed rule is not an economically significant regulatory action. This proposed rule also has been considered in light of the Regulatory Flexibility Act, as amended, (5 U.S.C. 601 *et seq.* ). In promulgating this proposed rule, publication of an advance notice of proposed rulemaking was not required by law. Further, it has been determined that this proposed rule will not have a significant economic impact on a substantial number of small business entities as defined by that act. Therefore, it has been determined that preparation of a regulatory flexibility analysis is not required for this proposed rule. Environmental Impact Section 31.11a of Forest Service Handbook 1909.15 (69 FR 40591; July 6, 2004) excludes from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The agency's preliminary assessment is that this rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement. A final determination will be made upon adoption of the final rule. Moreover, this proposed rule itself has no impact on the human environment. Therefore, it has been determined that preparation of an environmental assessment or an environmental impact statement is not required in promulgating this proposed rule. Federalism The agency has considered this proposed rule under the requirements of Executive Order 12612 and has made a preliminary assessment that the proposed rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the agency has determined that no further assessment on federalism implications is necessary at this time. Consultation With Tribal Governments This proposed rule has been reviewed under E.O. 13175 of November 6, 2000, “Consultation, and Coordination With Indian Tribal Governments.” This proposed rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nor does this proposed rule impose substantial direct compliance costs on Indian tribal governments or preempt tribal law. Therefore, it has been determined that this proposed rule does not have tribal implications requiring advance consultation with Indian tribes. No Takings Implications This proposed rule has been reviewed for its impact on private property rights under Executive Order 12630. It has been determined that this proposed rule does not pose a risk of taking private property. Controlling Paperwork Burdens on the Public This proposed rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 and, therefore, imposes no paperwork burden on the public. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ) and implementing regulations at 5 CFR part 1320 do not apply. Energy Effects This proposed rule has been reviewed under E.O. 13211 of May 18, 2001, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” This proposed rule will not have a significant adverse effect on the supply, distribution, or use of energy. Nor has the Office of Management and Budget designated this rule as a significant energy action. Therefore, it has been determined that this proposed rule does not constitute a significant energy action requiring the preparation of a Statement of Energy Effects. Civil Justice Reform This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. After adoption of this proposed rule,

(1)All State and local laws and regulations that conflict with this rule or that would impede full implementation of this rule will be preempted

(2)no retroactive effect would be given to this proposed rule; and

(3)this proposed rule would not require the use of administrative proceedings before parties could file suit in court challenging its provisions. Unfunded Mandates Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the agency has assessed the effects of this proposed rule on State, local, and tribal governments, and on the private sector. This proposed rule does not compel the expenditure of $100 million or more by any State, local, or tribal government, or anyone in the private sector. Therefore, a statement under section 202 of the act is not required. List of Subjects 36 CFR Part 241 Fish, Intergovernmental relations, National forests, Wildlife, Wildlife refuges. 36 CFR Part 251 Administrative practice and procedure, Alaska, Fish, National Forests, Public lands, Reporting and recordkeeping requirements, Wildlife. 36 CFR Part 261 Law enforcement, National Forests. For the reasons stated in the Preamble, the Forest Service proposes to amend 36 CFR Chapter II as follows: PART 241—FISH AND WILDLIFE 1. The authority citation for part 241 continues to read as follows: Authority: 16 U.S.C. 472, 539, 551, 683. Subpart A—General Provisions 2. Revise § 241.2 to read as follows: § 241.2 Cooperation in wildlife management. The Chief of the Forest Service, through the Regional Foresters and Forest Supervisors, shall determine the extent to which national forests or portions thereof may be devoted to fish and wildlife protection in combination with other uses and services of the national forests, and, in cooperation with the Fish and Game Department or other constituted authority of the State concerned, will formulate plans for securing and maintaining desirable populations of wildlife species, and may enter into such general or specific cooperative agreements with appropriate State officials as are necessary and desirable for such purposes. Officials of the Forest Service will cooperate with State game officials in:

(a)The planned and orderly removal in accordance with the requirements of State laws of the crop of game, fish, fur-bearers, and other wildlife on national forest lands;

(b)The application of piscicides within the National Forest System by State fish and game management agencies.

(1)*Notice.* Written notice of a project involving the application of piscicides by State agencies on National Forest System lands must be provided to the Supervisor for the affected administrative unit and must:

(i)Precede the project by at least 60 days, unless the Forest Service agrees that an emergency requiring response within a shorter period of time exists.

(ii)Include a description of the purpose of the project, the location and scope of the project, the piscicide to be applied, the amount applied, the method of application, the qualifications of the persons that will apply the piscicides, the time period within which the piscicides will be applied, and the monitoring plan for the project. (2 ) *Reporting.* By December 1 of each year the State must provide to the Supervisor, in writing, information on piscicide use within the administrative unit under the Supervisor's jurisdiction, and monitoring results for such uses, including: The name of the piscicide active ingredients (AI), the formulation used, the amount applied, and the total area within the administrative unit treated during the Federal fiscal year. The State shall immediately report any accident or incident involving piscicides occurring on National Forest System lands to the Supervisor for the administrative unit where the accident or incident occurred. (3 ) *Criteria for State piscicide projects outside Wild and Scenic Rivers, Wilderness, and Wilderness Study Areas.* Forest Service special use authorization is not required for State piscicide projects that would occur outside designated Wild and Scenic Rivers or Congressionally designated Wilderness and Wilderness Study Areas and that meet the following criteria:

(i)The project is in compliance with all Federal laws and regulations;

(ii)The project is consistent with the Land and Resource Management Plan plus any relevant Aquatic Resource Recovery Plan and Species Management Plan;

(iii)The piscicides to be applied are currently registered with EPA and restricted-use piscicides will only be applied by a certified pesticide applicator or those under the supervision of a certified pesticide applicator;

(iv)The purpose of the project is for the management of aquatic resources;

(v)The project is designed in concert with the local Forest to address any issues related to ecosystem functions and existing uses of the National Forest System lands;

(vi)The project design includes a plan for monitoring within 60 days of treatment, including:

(A)Effectiveness monitoring to determine whether project objectives were met;

(B)Detoxification monitoring to determine whether piscicide neutralization was successful; and

(C)Non-target monitoring to determine piscicide drift and impacts to non-target species.

(vii)The State has provided reports on past piscicide use as required by paragraph (2).

(4)*Special Use Authorization Requirements.*

(i)Piscicide projects within designated Wild and Scenic Rivers or Congressionally designated Wilderness and Wilderness Study Areas are subject to special use authorization requirements of 36 CFR part 251 subpart B.

(ii)Nothing in this Rule exempts a State from the requirement to obtain a special use authorization in accordance with 36 CFR part 251 subpart B, for any purpose to gain access over a closed road or trail, or through a closed area; or to construct structures or installations beyond those temporary structures or installations that are a necessary part of a piscicide project. PART 251—LAND USES Subpart B—Special Uses 3. The authority citation for subpart B continues to read as follows: Authority: 16 U.S.C. 4601-6a, 4601-6d, 472, 497b, 497c, 551, 580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1771. 4. Amend § 251.50 by revising paragraph

(a)to read as follows: § 251.50 Scope.

(a)All uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing sharing use of roads (§ 212.9); grazing and livestock use (part 222); the sale and disposal of timber and special forest products, such as greens, mushrooms, and medicinal plants (part 223); minerals (part 228); and the application of piscicides by State fish and game management agencies outside of designated Wild and Scenic Rivers and Congressionally designated Wilderness and Wilderness Study Areas (part 241) are designated “special uses.” Before conducting a special use, individuals or entities must submit a proposal to the authorized officer and must obtain a special use authorization from the authorized officer, unless that requirement is waived by paragraphs

(c)through (e)(3) of this section. PART 261—PROHIBITIONS 5. The authority citation for part 261 continues to read as follows: Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f), 1133(c), (d)(1), 1246(i). Subpart A—General Prohibitions 6. Revise § 261.9(f) to read as follows: § 261.9 Property.

(f)Using any pesticide except for:

(1)Personal use as an insect repellent;

(2)Application of piscicides on National Forest System lands by State fish and game management agencies in accordance with section 241.2(b) of this chapter;

(3)Other pesticide use authorized pursuant to part 251, subpart B of this chapter. 7. Revise § 261.10

(a)to read as follows: § 261.10 Occupancy and use.

(a)Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communications equipment, or other improvement on National Forest System lands or facilities without a special use authorization, contract, or approved operating plan, unless such authorization, contract, or operating plan is waived pursuant to section 251.50(a) or

(e)of this chapter. Subpart B—Prohibitions in Areas Designated by Order 8. Amend § 261.50 by adding paragraphs

(g)to read as follows: § 261.50 Orders.

(g)The Chief, each Regional Forester, each Experiment Station Director, the Administrator of the Lake Tahoe Basin Management Unit and each Forest Supervisor may issue orders to close an area to prohibit piscicide applications by State agencies under the following circumstances:

(1)A proposed State piscicide application that does not meet the requirements specified under 36 CFR 241.2(b), or

(2)Existing fire incident or other emergencies that threaten public safety. Dated: October 18, 2006. Dale N. Bosworth, Chief, Forest Service. [FR Doc. E6-19197 Filed 11-15-06; 8:45 am] BILLING CODE 3410-11-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2006-0497; FRL-8243-1] RIN A2060-AN96 Standards of Performance for Industrial-Commercial-Institutional Steam Generating Units AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: We are proposing a facility-specific nitrogen oxides (NO X ) standard for a steam generating unit which simultaneously combusts fossil fuel and chemical by-product/waste at the Innovene USA facility located in Lima, Ohio. New source performance standards limiting emissions of, among other pollutants, NO X from industrial-commercial-institutional steam generating units capable of combusting more than 100 million British thermal units per hour were promulgated on November 25, 1986. The standards limit NO X emissions from the combustion of fossil fuels by themselves or in combination with other fuels or wastes. The standards include provisions for the establishment of facility-specific NO X standards for steam generating units which simultaneously combust fossil fuel and chemical by-product/waste under certain conditions. DATES: *Comments.* Comments must be received on or before December 18, 2006, unless a hearing is requested by November 27, 2006. If a timely hearing request is submitted, the hearing will be held on December 1, 2006 and we must receive written comments on or before January 2, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0497, by one of the following methods: • *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail: A-and-r-docket@epa.gov.* • *Fax:*

(202)566-1741. • *Mail:* Air and Radiation Docket and Information Center, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies. • *Hand Delivery:* Air and Radiation Docket and Information Center, U.S. EPA, 1301 Constitution Avenue, NW., Room B-108, Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. We request that a separate copy also be sent to the contact person listed below ( *see* FOR FURTHER INFORMATION CONTACT ). Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA's **Federal Register** notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at *http://www.epa.gov/epahome/dockets.htm* for current information on docket status, locations, and telephone numbers. The Docket Center's mailing address for U.S. mail and the procedures for submitting comments to *http://www.regulations.gov* are not affected by the flooding and will remain the same. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0497. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site are “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov index.* Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air and Radiation Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air Docket is

(202)566-1742. *Public Hearing* . If a public hearing is held, it will be held at EPA's campus located at 109 T.W. Alexander Drive in Research Triangle Park, North Carolina or at an alternate site nearby. FOR FURTHER INFORMATION CONTACT: Mr. James A. Eddinger, Energy Strategies Group, Sector Policies and Programs Division (D243-01), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number

(919)541-5426; facsimile number

(919)541-5450; electronic mail address *eddinger.jim@epa.gov.* SUPPLEMENTARY INFORMATION: *Regulated Entities.* The only regulated entity that will be affected by this proposed amendment is the Innovene USA facility located in Lima, Ohio. What Should I Consider as I Prepare My Comments for EPA? *Submitting CBI.* Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. Send or deliver information identified as CBI to only the following address: Mr. James Eddinger, c/o OAQPS Document Control Officer (Room C404-02), U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-2006-0497. *Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. *Public Hearing.* If a public hearing is held, it will be held on December 1, 2006 at the EPA facility, Research Triangle Park, NC, or an alternative site nearby. Persons interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Pamela Garrett, Energy Strategies Group, Sector Policies and Programs Division (D243-01), Research Triangle Park, NC 27711, telephone number

(919)541-7966, at least 2 days in advance of the potential date of the public hearing. Persons interested in attending the public hearing must also call Ms. Garrett to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning these proposed emission standards. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of today's proposal will also be posted on the Technology Transfer Network's

(TTN)policy and guidance page *http://www/epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. *Direct Final Rule.* A direct final rule identical to this proposal is published in the Rules and Regulations section of this **Federal Register** . If we receive any material adverse comment pertaining to the amendment in the proposal, we will publish a timely notice in the **Federal Register** informing the public that the amendments are being withdrawn due to adverse comment. We will address all public comments concerning the withdrawn amendments in a subsequent final rule. If no material adverse comments are received, no further action will be taken on the proposal, and the direct final rule will become effective as provided in that action. The regulatory text for this proposal is identical to that for the direct final rule published in the Rules and Regulations section of this **Federal Register** . For further supplemental information, the detailed rationale for the proposal, and the regulatory revisions, see the information provided in the direct final rule published in the Rules and Regulations section of this **Federal Register** . Statutory and Executive Order Reviews For a complete discussion of all of the administrative requirements applicable to this action, see the direct final rule in the Rules and Regulations section of this **Federal Register** . Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this proposed rule amendments on small entities, small entity is defined as:

(1)A small business whose parent company has fewer than 100 or 1,000 employees, or fewer than 4 billion kilowatt-hours per year of electricity usage, depending on the size definition for the affected North American Industry Classification System code;

(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this proposed rule amendment on small entities, we conclude that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule amendment will not impose any requirements on small entities because it does not impose any additional regulatory requirements. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: November 9, 2006. Stephen L. Johnson, Administrator. [FR Doc. E6-19385 Filed 11-15-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 239 and 258 [EPA-R07-RCRA-2006-0877; FRL-8242-8] Adequacy of Missouri Municipal Solid Waste Landfill Program AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA proposes to approve Missouri's Research, Development and Demonstration (RD&D) permit program and updates to the approved Municipal Solid Waste Landfill Permit (MSWLP) program. On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued to certain municipal solid waste landfills by approved states. On April 14, 2006, Missouri submitted an application to the EPA seeking Federal approval of its RD&D requirements and to update Federal approval of its MSWLP program. DATES: Comments on this proposed action must be received in writing by December 18, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-OAR-2006-0877 by one of the following methods: 1. *http://www.regulations.gov* : Follow the on-line instructions for submitting comments. 2. *E-mail* : *Mclaughlin.chilton@epa.gov.* 3. *Mail:* Send written comments to Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. 4. *Hand Delivery or Courier* . Deliver your comments to Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30, excluding legal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Chilton McLaughlin at

(913)551-7666, or by e-mail at *Mclaughlin.chilton@epa.gov.* SUPPLEMENTARY INFORMATION: In the final rules section of the **Federal Register** , EPA is approving Missouri's Research, Development and Demonstration permit program and updates to the approved Municipal Solid Waste Landfill Permit (MSWLP) program as a direct final rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no relevant adverse comments to this action. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the rules section of this **Federal Register** . Dated: November 6, 2006. John B. Askew, Regional Administrator, Region 7. [FR Doc. E6-19383 Filed 11-15-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 239 and 258 [EPA-R07-RCRA-2006-0878; FRL-8242-5] Adequacy of Nebraska Municipal Solid Waste Landfill Program AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA proposes to approve Nebraska's Research, Development and Demonstration (RD&D) permit program and updates to the approved Municipal Solid Waste Landfill Permit (MSWLP) program. On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued to certain municipal solid waste landfills by approved states. On September 27, 2006, Nebraska submitted an application to the EPA seeking Federal approval of its RD&D requirements and to update Federal approval of its MSWLP program. DATES: Comments on this proposed action must be received in writing by December 18, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-OAR-2006-0878 by one of the following methods: 1. *http://www.regulations.gov* : Follow the on-line instructions for submitting comments. 2. *E-mail* : *Mclaughlin.chilton@epa.gov.* 3. *Mail* : Send written comments to Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. 4. *Hand Delivery or Courier* . Deliver your comments to Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30, excluding legal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Chilton McLaughlin at

(913)551-7666, or by e-mail at *Mclaughlin.chilton@epa.gov.* SUPPLEMENTARY INFORMATION: In the final rules section of the **Federal Register** , EPA is approving Nebraska's Research, Development and Demonstration permit program and updates to the approved Municipal Solid Waste Landfill Permit (MSWLP) program as a direct final rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no relevant adverse comments to this action. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the rules section of this **Federal Register** . Dated: November 6, 2006. John B. Askew, Regional Administrator, Region 7. [FR Doc. E6-19387 Filed 11-15-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 383, 384, 390, and 391 [Docket No. FMCSA-1997-2210] RIN 2126-AA10 Medical Certification Requirements as Part of the CDL AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of proposed rulemaking (NPRM); request for comments. SUMMARY: FMCSA proposes to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to merge information from the medical certificate into the Commercial Driver's License

(CDL)process as required by section 215 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA). This NPRM would implement section 215 by requiring interstate CDL holders subject to the physical qualification requirements of the FMCSRs to provide a current original or copy of their medical examiner's certificates to their State Driver Licensing Agency (SDLA). It would also require the SDLA to record on the Commercial Driver License Information System (CDLIS) driver record the certification the driver made regarding applicability of 49 CFR part 391, and, for drivers subject to part 391, the medical status information proposed in this NPRM. The driver's certification as to the applicability of part 391 and the specified medical certification status information would be made available to personnel authorized in 49 CFR part 384 via CDLIS and National Law Enforcement Telecommunication System (NLETS) electronic inquiries, and on the CDLIS motor vehicle record (CDLIS MVR) obtained by employers and drivers. CDL drivers would no longer be required to carry the medical examiner's certificate, because their certification status would be verified electronically. DATES: Comments must be received by February 14, 2007. ADDRESSES: You may submit comments identified by DOT DMS Docket Number FMCSA-1997-2210 by any of the following methods: • *Web site:* *http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. *Instructions:* All submissions must include the Agency name and docket number or Regulatory Identification Number

(RIN)for this rulemaking (RIN 2126-AA10). Note that all comments received will be posted without change to *http://dms.dot.gov* , including any personal information provided. Please refer to the Privacy Act heading for FURTHER INFORMATION CONTACT . *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Privacy Act:* Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477) or you may visit *http://dms.dot.gov.* Comments received after the comment closing date will be included in the docket and we will consider late comments to the extent practicable. FMCSA may, however, issue a final rule at any time after the close of the comment period. FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical Qualifications Division, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Room 8301, Washington, DC 20591; Telephone:

(202)366-4001; E-mail address: *Maggi.Gunnels@dot.gov.* SUPPLEMENTARY INFORMATION: Outline of the NPRM A. Legal Basis 1. Authority Over Drivers Affected 2. Authority To Regulate State CDL Programs B. Background 1. Current CDL Information and Recordkeeping Systems 2. Medical Certification of CDL Drivers Subject to Part 391 3. Current CDL Requirements Regarding Physical Qualifications 4. State Feasibility Pilot Tests 5. Advance Notice of Proposed Rulemaking 6. Negotiated Rulemaking Advisory Committee C. Rulemaking Proposal 1. Highlights of Proposed New CDL Licensing Process 2. Potential Impacts on States 3. Potential Impacts on Motor Carriers Employing CDL Drivers 4. Potential Impacts on Drivers D. Implementation Date E. Section-by-Section Explanation of Changes F. Summary Cost Benefit Analysis G. Rulemaking Analyses List of Subjects A. Legal Basis Section 215 of MCSIA (Pub. L. 106-159, 113 Stat. 1767 (Dec. 9, 1999)) (set out as a note to 49 U.S.C. 31305) provides that: “The Secretary shall initiate a rulemaking to provide for a Federal medical qualification certificate to be made a part of commercial driver's licenses.” The population of drivers required to obtain a CDL is different from the population of drivers required to obtain a medical certificate. For that reason, in order to implement this congressional mandate, the proposed rule reconciles the differences between the scope of the Agency's authority to regulate the physical qualifications of drivers of commercial motor vehicles

(CMVs)and its authority to establish requirements for the issuance of commercial driver's licenses. The proposed rule would place requirements on only those drivers required to obtain a CDL from a State who are also required to obtain a certificate from a medical examiner indicating that they are physically qualified to operate a commercial motor vehicle in interstate commerce. The proposed rule would also establish requirements to be implemented by States that issue CDLs to such drivers. These requirements would ensure that accurate and timely information about the medical examiner's certificate would be contained in the electronic CDLIS driver record maintained in compliance with the CDL regulations. Finally, the proposed rule would require States to take certain actions against CDL holders if such information is not kept accurate and up-to-date in a timely manner. 1. Authority Over Drivers Affected *a. Drivers Required To Obtain a Medical Certificate.* FMCSA is required by statute to establish standards for the physical qualifications of drivers who operate CMVs in interstate commerce. (49 U.S.C. 31136(a)(3) and 31502(b)) For this purpose, CMVs are defined in 49 U.S.C. 31132(1) and 49 CFR 390.5. There are four basic categories of vehicles covered by this definition: • Those with a gross vehicle weight rating

(GVWR)or gross combination weight rating (GCWR), or gross vehicle weight

(GVW)or gross combination weight (GCW), whichever is greater, of at least 10,001 pounds; • Those designed or used to transport for compensation more than 8 passengers, including the driver; • Those designed or used to transport not for compensation more than 15 passengers, including the driver; or • Those used to transport hazardous materials that require a placard on the vehicle under 49 CFR subtitle B, chapter I, subchapter C. In addition, the vehicles in these categories must be “used on the highways in interstate commerce to transport passengers or property.” *(Id.)* Interstate commerce, for purposes of this provision, is based on the definitional provisions of 49 U.S.C. 31132(4) and 31502(a) and long-standing administrative and judicial interpretations of those sections (and their predecessors), and defined in 49 CFR 390.5 as follows: Interstate commerce means trade, traffic, or transportation in the United States—

(1)Between a place in a State and a place outside of such State (including a place outside of the United States);

(2)Between two places in a State through another State or a place outside of the United States; or

(3)Between two places in a State as part of trade, traffic, or transportation originating or terminating outside the State or the United States. With certain limited exceptions, 1 FMCSA has fulfilled the statutory mandate of 49 U.S.C. 31136(a)(3) by establishing physical qualification standards for all drivers covered by these provisions. (49 CFR 391.11(b)(4)). Such drivers must also obtain from a medical examiner a certification indicating that the driver is physically qualified to drive a CMV. (49 CFR 391.41(a), 391.43(g) and (h)). The proposed rule would not make any change in the requirements for obtaining a medical certificate. But, on the basis of this authority, it would require drivers subject to the medical examiner's certificate requirement who are also required to obtain a CDL, to furnish the original or a copy of the certificate to the licensing State. As explained in the Summary Cost Benefit Analysis in this Notice, the proposed rule should improve compliance by CMV operators with the physical qualification standards in the FMCSRs. By doing so, the proposed rule would aid the Agency in ensuring that the physical condition of CMV operators is adequate to enable them to operate safely and that such operation does not have a deleterious effect on their health, as required by section 31136(a)(3) and (4). The other minimum requirements of section 31136, set out in subsections (a)(1) and (2), are not applicable to the proposed rule, because it does not involve either the safety of CMV equipment or the operational activities of the operators. 1 *See* 49 CFR 390.3(f) and 391.2. *b. Drivers Required To Obtain a CDL.* The authority for FMCSA to require an operator of a CMV to obtain a CDL rests on different statutory provisions than those authorizing the promulgation of physical and medical qualifications for such operators; the authority is found in 49 U.S.C. 31302. The requirement to obtain a CDL is applicable to drivers of specified CMV categories that are different from the categories specified in 49 U.S.C. 31132(1) and the implementing regulations, as discussed in the preceding section. The four categories of CMVs for which an operator is required to have a CDL, as defined in 49 U.S.C. 31301(4) and specified in 49 CFR 383.5, are: • Those with a gross combination weight rating or gross combination weight, of at least 26,001 pounds, including towed units with gross vehicle weight rating or gross combination weight of more than 10,000 pounds; • Those with a gross vehicle weight rating or gross vehicle weight of at least 26,001 pounds; • Those designed to transport at least 16 passengers, including the driver; or • Those of any size used to transport either hazardous materials that require a placard on the vehicle under 49 CFR part 172, subpart F, or any quantity of a material listed as a select agent or toxin under 42 CFR part 73. In addition, the vehicles involved must be used “in commerce to transport passengers or property.” (49 U.S.C. 31301(4)). The term “commerce” is defined for the purpose of the CDL statutes and regulations as: trade, traffic, and transportation—

(A)in the jurisdiction of the United States between a place in a State and a place outside that State (including a place outside the United States); or

(B)in the United States that affects trade, traffic, and transportation described in subclause

(A)of this clause. (49 U.S.C. 31301(2). *See also* 49 CFR 383.5.) However, the statutory provisions governing CDLs also contain a limitation on the scope of the authority granted to FMCSA. The provision at 49 U.S.C. 31305(a)(7) states that: The Secretary of Transportation shall prescribe regulations on minimum standards for testing and ensuring the fitness of an individual operating a commercial motor vehicle. The regulations—

(7)shall ensure that an individual taking the tests is qualified to operate a commercial motor vehicle under regulations prescribed by the Secretary and contained in title 49, Code of Federal Regulations, *to the extent the regulations apply to the individual;* (Emphasis added). The current CDL provisions require each CDL driver either to certify that he/she meets the qualification requirements contained in 49 CFR part 391 or, if the driver expects to operate entirely in intrastate commerce and is not subject to part 391 but is subject to State driver qualification requirements, to certify that he/she is not subject to part 391. (49 CFR 383.71(a)(1)). Therefore, reading all of these statutory provisions as a whole, FMCSA interprets section 215 of MCSIA to be applicable only to CDL holders or applicants operating or intending to operate in interstate commerce, as defined in 49 CFR 390.5. The proposed rule would require CDL holders and applicants operating in interstate commerce to furnish evidence of their physical qualifications (in addition to certifying), by providing the required medical certificate to the State issuing the CDL. 2. Authority To Regulate State CDL Programs FMCSA, in accordance with 49 U.S.C. 31311 and 31314, has authority to prescribe procedures and requirements for the States to observe in order to issue CDLs. ( *See, generally* , 49 CFR part 384.) In particular, under section 31314, in order to avoid loss of funds apportioned from the highway trust fund, each State shall comply with the following requirement:

(1)The State shall adopt and carry out a program for testing and ensuring the fitness of individuals to operate commercial motor vehicles consistent with the minimum standards prescribed by [FMCSA] under section 31305(a) of [Title 49 U.S.C.]. (49 U.S.C. 31311(a)(1). *See also* 49 CFR 384.201.). If a State does not comply with these requirements, it is also subject to possible loss of grant funds under the Motor Carrier Safety Assistance Program (MCSAP). ( *See* 49 CFR 350.217.). On the basis of this authority, the proposed rule would require States issuing CDLs to drivers operating or intending to operate in interstate commerce, to obtain all information on the required medical examiner's certificate for entry into the CDLIS driver record. The proposed rule would also require the States to take certain specified actions if such information is not provided by the CDL applicant or holder. B. Background 1. Current CDL Information and Recordkeeping Systems The Commercial Driver's License Information System or CDLIS is the existing information system that serves as a clearinghouse and depository of all information about the licensing, identification, and disqualification of CDL operators of commercial motor vehicles. This NPRM uses the term “CDLIS driver record” as the name of the electronic record containing a CDL driver's status and history located in the database of the driver's State-of-Record. 2 The motor vehicle record

(MVR)is the term, that by convention and usage, generally describes the driver history information provided from the driver record to the driver or employer by a SDLA, usually for a fee. Historically the FMCSRs have used a variety of terms such as driver record or driving record in the context of various requirements for motor carriers to investigate and obtain the driving history and status of all operators of commercial motor vehicles, both CDL and non-CDL. This NPRM proposes to standardize usage of the terms CDLIS driver record for CDL drivers, and driver record for non-CDL drivers to refer to the computer record stored by the SDLA. It further proposes to standardize usage of the terms CDLIS motor vehicle record (CDLIS MVR) for CDL drivers and motor vehicle record

(MVR)for non-CDL drivers, to mean the driver history information provided to the driver or employer by the SDLA from the driver record. 2 “State of Record” is the jurisdiction that maintains the CDLIS driver record for every CDL driver licensed within its jurisdiction. See 49 CFR 384.107 and AAMVA, Inc.'s “Commercial Driver License Information System (CDLIS) State Procedures Manual.” Different methods are used for obtaining responses from the CDLIS driver record by different user groups. Federal and State MCSAP personnel largely use the FMCSA CDLIS-Access software developed and operated by FMCSA, and provided to these personnel. State and local police performing traffic enforcement as part of MCSAP or other operations, predominantly use the National Law Enforcement Telecommunications System to obtain whatever form of the driver status and/or history information the SDLA provides from the CDLIS driver record. Drivers and motor carriers have access to CDLIS driver record information by purchasing the MVR from the SDLA, subject to the limitations in 49 CFR 384.225(e). 2. Medical Certification of CDL Drivers Subject to Part 391 With limited exceptions, all drivers who operate CMVs, as defined in 49 CFR 390.5, in interstate commerce must comply with the qualification requirements of 49 CFR part 391 (49 CFR 391.1). This includes CDL drivers operating in interstate commerce (49 U.S.C. 31305(a)(7)). There are exceptions from the medical certification requirement provided under 49 CFR 390.3(f) including, for example, drivers engaged in transportation performed by Federal, State or local governments, and school bus drivers providing school to home and home to school transportation. Additional exceptions are also provided under 49 CFR 391.2 and include drivers engaged in certain custom farm operations, the seasonal transportation of bees using CMVs controlled and operated by a beekeeper, and the operation of certain farm vehicles. Each driver subject to the physical qualification requirements must be examined and certified by a medical examiner, as defined in 49 CFR 390.5, at least once every 2 years. For certain drivers, such as those with severe cases of hypertension or other acute medical conditions, more frequent medical reexamination may be required by medical examiners to determine whether the driver can still be certified. Medical examiners document the results of the examination on a medical examination report (also referred to as the “long form”). If the medical examiner determines that a driver is physically qualified in accordance with 49 CFR 391.41(b), the examiner certifies the driver meets the physical qualification standards by completing a form substantially in accordance with the medical examiner's certificate contained in 49 CFR 391.43. The certificate also contains check boxes indicating whether the driver is subject to any restrictions while operating a CMV, such as wearing corrective lenses or a hearing aid, or whether the driver was granted a medical variance and thus the certificate must be accompanied by a medical exemption document or a skill performance evaluation

(SPE)certificate. A driver granted an exemption or SPE certificate must carry an original or copy of the accompanying documentation, e.g., exemption document or SPE certificate, at all times while operating a CMV in interstate commerce. *See, e.g.,* 49 CFR 391.49(j)(1). The driver must also provide an original or copy of the Medical Examiner's certificate to the employing motor carrier who must retain it in the driver's qualification file (sections 391.51(b)(7) and 391.51(d)(4)). 3. Current CDL Requirements Regarding Physical Qualifications Before the enactment of section 215 of MCSIA, the Commercial Motor Vehicle Safety Act (CMVSA) provided that FMCSA “may require issuance of a certification of fitness to operate a commercial motor vehicle to an individual passing the tests * * *” (49 U.S.C. 31305(a)(8)). Because the authority is permissive, not mandatory, the current regulations that implement the CDL program only require the States to obtain a certification from the driver that either the driver qualification provisions of 49 CFR part 391 apply, or that the driver operates entirely in intrastate commerce. Most States meet this requirement by providing an appropriate box on the CDL application form for the driver to check. Drivers are not currently required by the CDL regulations to provide an original or copy of the medical examiner's certificate to the SDLA as proof of the driver's physical qualification to operate a CMV in interstate commerce. Likewise, there are no CDL compliance regulations that require the SDLA to ensure that:

(1)The driver's medical certification is accurate;

(2)the driver who self certifies he or she is subject to part 391 has a current medical certification; or

(3)the medical examiner's certificate for the driver does not expire during the course of the licensing period. Diagram 1, “Existing System,” illustrates the current way CDL drivers meet these requirements, and highlights that there is a lack of integration currently between the existing medical certification and CDL licensing processes. The purpose of this NPRM is to address this situation. BILLING CODE 4910-EX-P EP16NO06.000 4. State Feasibility Pilot Tests In September 1990, the Federal Highway Administration

(FHWA)(predecessor Agency to FMCSA) entered into a contract with the Association for the Advancement of Automotive Medicine

(AAAM)and the American Association of Motor Vehicle Administrators (AAMVA) to assess the feasibility of integrating the medical certification and CDL issuance and renewal processes. AAAM and AAMVA worked with FHWA to help select States to participate in six pilot tests, and determine whether States could assume some level of responsibility for ensuring CDL drivers are certified as physically qualified before a CDL is issued or renewed. The States selected to test various approaches for merging the medical certification and CDL processes were Alabama, Arizona, Indiana, Missouri, North Carolina and Utah. During the study, each pilot State had to address a variety of budgeting, operational and technical challenges. All six States achieved at least 1 full year of operations data and demonstrated it would be feasible for SDLAs to take a more active role in verifying that a CDL applicant has obtained medical certification such as that being proposed in this rule. For purposes of this NPRM, we briefly discuss the results of the tests. However, more details about the individual concepts tested by each State are in the final report. The final report for the study, entitled “Prototype State Medical Review Program,” dated January 31, 1995, is included in the rulemaking docket. Two States wanted to test the possibility of placing the driver's medical certification status on the CDLIS driver record. Each was successful in demonstrating this could be operationally implemented. During the pilot test, these two States placed information about the medical certification status on the CDLIS driver record and made this information electronically available to the SDLA and, ultimately, to Federal and State enforcement personnel who could use it as part of roadside inspections or traffic enforcement. The other four States explored methods for verifying medical certification as part of issuing the CDL that did not include recording the medical certification status on the driver record. As such, they are not germane to the MCSIA section 215 requirement to make the certificate part of the CDL. 5. Advance Notice of Proposed Rulemaking In 1994, FHWA issued an advance notice of proposed rulemaking (ANPRM) (59 FR 36338, July 15, 1994) titled “Commercial Driver Physical Qualifications as Part of the Commercial Driver's License Process.” The ANPRM requested comments on the concept of requiring the States to verify the medical certification of CMV drivers and include documentation within the States' CDL information systems. The ANPRM indicated the Agency was considering a rulemaking to require State licensing agencies to review and verify the accuracy of the medical examination report (long form), and record documentation of the medical certification status on CDLIS driver record, prior to issuing or renewing a CDL. States would thus ensure that all applicants seeking a CDL for the purpose of operating CMVs in interstate commerce were in compliance with the medical certification standards before issuing the CDL. Medical examination reports would be sent to the SDLA for review and evaluation by a State Medical Review Board to achieve better quality control over the medical certifications issued, before the State could issue a CDL. FHWA prepared a report summarizing all the public comments to the ANPRM, entitled “Summary of Comments to the ANPRM: CDL Medical Fitness.” A copy of the report is included in the docket. 6. Negotiated Rulemaking Advisory Committee After evaluating the public comments received in response to the ANPRM, FHWA announced its intention to form a Negotiated Rulemaking Advisory Committee (Committee) to develop an NPRM for merging the medical certification and CDL issuance and renewal processes. A notice of intent to form the Committee was published in the **Federal Register** on April 29, 1996 (61 FR 18713). The Agency invited interested parties to comment on the proposal to establish the Committee, and to submit applications or nominations for Committee membership. The notice provided a preliminary list of entities identified as interested parties that should be included in the negotiated rulemaking process, either directly as members of the Committee or as part of a broader caucus of similar or related interests. On July 23, 1996, FHWA published a notice in the **Federal Register** (61 FR 38133) announcing the first meeting of the Committee, the membership, and major issues the Committee would consider. Twenty-five organizations and FHWA were represented on the Committee. The charter for the Committee was approved by the Secretary on July 12, 1996, with an expiration date of July 12, 1998. The Committee held several meetings between August 7, 1996, and November 20, 1997. Commercial Driver Physical Qualifications Negotiated Rulemaking Advisory Committee Membership List (Approved by Secretary Peña 7/10/96) 1. Federal Highway Administration 2. American Association of Motor Vehicle Administrators 3. New York (State commercial driver licensing agency) 4. Utah (State commercial driver licensing agency) 5. Wisconsin (State commercial driver licensing agency) 6. Montana (State commercial driver licensing agency) 7. Commercial Vehicle Safety Alliance 8. International Association of Chiefs of Police 9. American Trucking Associations 10. National Private Truck Council 11. National School Transportation Association 12. United Motor Coach Association & American Bus Association (sharing one seat on the committee) 13. Owner-Operator Independent Drivers Association 14. Independent Truckers and Drivers Association 15. Teamsters Union 16. Amalgamated Transit Union 17. Lancer Insurance 18. AI Transport 19. American Insurance Association 20. National Association of Independent Insurers 21. Advocates for Highway and Auto Safety 22. Farmland Industries 23. American College of Occupational and Environmental Medicine 24. Association for Advancement of Automotive Medicine 25. American Academy of Occupational Health Nurses 26. American Academy of Physicians' Assistants Although the Committee did not reach consensus concerning the major issues considered (and listed in the July 23, 1996, notice), the Committee supported moving forward with a rulemaking proposal focused on improving the availability of information about driver physical qualifications, and recording medical certification information on the CDLIS driver record. Copies of the Committee's report and all documents considered by the Committee are available in the public docket for this rulemaking. C. Rulemaking Proposal 1. Highlights of Proposed New CDL Licensing Processes This rulemaking would apply to all CDL holders who:

(1)Operate CMVs as defined in 49 CFR 383.5; and

(2)are subject to the driver qualification requirements under 49 CFR part 391. FMCSA proposes in this NPRM to add a requirement that CDL holders to whom 49 CFR part 391 applies must begin providing an original or copy (at the option of the SDLA) of their medical examiner's certificate to their SDLA for recording of information specified in this NPRM on the CDLIS driver record. The States would be provided the flexibility to establish their own processes for receiving this information from drivers. SDLAs would also be required to downgrade a CDL if the driver's medical certification is no longer valid. A “CDL downgrade” means the State either:

(1)Restricts a previously unrestricted CDL to intrastate transportation or to interstate transportation excepted from part 391 as provided in 49 CFR 390.3(f) or 391.2; or

(2)The State removes the CDL privilege entirely from the driver's license. Diagram 2, Proposed System, illustrates how the CDL and medical certification processes would be integrated. The process begins with obtaining medical certification. The new requirements are for recording the medical examiner's certificate information on the CDLIS driver record, and making the medical certification information available to FMCSA and State licensing and enforcement agencies as part of CDLIS inquiries. BILLING CODE 4910-EX-P EP16NO06.001 The proposal is to clarify which CDL drivers are subject to part 391 and to require the SDLA to record the driver's certification regarding applicability of part 391 on the CDLIS driver record. For those drivers subject to part 391, they would be required to provide a current original or copy of their medical examiner's certificate to their SDLA. The SDLA would be required to record the proposed medical certification status information on the CDLIS driver record. Additionally the SDLA would be required to provide the medical certification status information to all authorized personnel specified in 49 CFR 384.225(e) via the established access methods. These methods include CDLIS electronic inquiries, NLETS electronic inquiries for CDL drivers, and on the CDLIS MVR (as specifically defined in proposed 49 CFR 384.105) that all States sell to employers and drivers. As a result of these CDL recordkeeping and information collection provision proposals, any future actions by the Agency that enhance the quality of the medical examination process would flow directly into the CDLIS driver record and thus would be available for use by all persons who are authorized to access this information. This NPRM, along with planned future rulemaking actions, would reduce the likelihood of States and employing motor carriers receiving improper or false medical certification documents from drivers. Anticipated future actions include establishing a National Registry of Medical Examiners required by 49 U.S.C. 31149(d). The creation of the National Registry was authorized by section 4116 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, 1726 (Aug. 10, 2005)). By that provision, Congress indicated FMCSA should implement a capability to accept as valid only medical examiner's certificates issued by medical examiners on the National Registry. FMCSA anticipates the required action to establish the National Registry would include standards to ensure that medical examiners on the Registry fully understand the physical qualification requirements applicable to drivers subject to part 391, and that enough examiners are certified. 2. Potential Impacts on States a. *General.* States would continue to require each driver to certify what type of driving they do, either:

(1)Subject to the qualification requirements of part 391; or

(2)not subject to those requirements. The SDLA in each State would be required to modify its procedures, *e.g.* , forms or computer systems, to make the certification for type of driving electronically accessible from the CDLIS driver record. This includes status and history responses to CDLIS and NLETS inquiries, and on the CDLIS MVR responses generated from the CDLIS driver record and provided to the driver or employer by the SDLA. The States would also be required to establish procedures for receiving the medical examiner's certificates from drivers subject to part 391. The process would include date stamping the certificate when received by the State; recording, within 2 business days, all required information proposed by this NPRM from the medical examiner's certificate onto the CDLIS driver record for all CDL drivers subject to part 391; and retaining the certificate or an image of the certificate for 6 months. Drivers, employers and enforcement personnel would be depending on the timely posting of the medical examiner's certificate information. The Agency is seeking comments on whether the number of days allowed for posting the medical certification data should be longer than 2 business days, and whether the retention period should be longer than 6 months. Additionally, the States would be required to verify whether the driver is subject to part 391, and if so that the current medical certification status is designated as “qualified” before taking any action to issue, renew, transfer or upgrade that driver's CDL. Further, the States would be required to update the medical certification status of the CDLIS driver record within 2 business days if the certification expires, to show the driver as “not-qualified.” The State must then complete a downgrade of the CDL within 60 days of the driver becoming not-qualified. Additionally, the States would be required to notify drivers of any possible CDL downgrade actions resulting from expired medical certification information. (See section “d. Notification of Drivers,” below.) The Agency is seeking comments about whether the proposed 2 business days for updating the medical certification status and the proposed 60 days for downgrading the CDL are reasonable and appropriate. The States would further be required to make the driver's medical certification status information, and if applicable, medical examiner's certificate information, electronically accessible as part of the information obtained from the CDLIS driver record by authorized users, including the FMCSA, State licensing and enforcement agencies, drivers, and employers. Enforcement personnel would obtain this data electronically via CDLIS or NLETS. Employing motor carriers and drivers would obtain it on the CDLIS MVR. The States would have to modify their programs that provide the following responses: CDLIS, CDLIS equivalent for NLETS and CDLIS MVR to include the medical certification status information. States such as California and Indiana already have programs that require drivers to provide copies of the Medical Examination Report (long form) to the State as part of the State's CDL program. This rule does not propose submission of the long form. Those States already are denying a new or renewal of a CDL or taking action against an existing CDL if the State does not receive an updated certification by the time the previous one expires. They are also placing information about the current medical certification status on the driver record. FMCSA is also seeking comments on how drivers could verify that the data regarding their medical certification status information is timely and properly recorded on their CDLIS driver record. The normal process for verification and correction of information on the CDLIS driver record is for drivers to go to an SDLA office in their licensing State and obtain a copy of their CDLIS MVR. Because of the ongoing operational nature of updates of medical certification status information, FMCSA requests comments on whether there is a more efficient method by which CDL drivers could accomplish this data quality review of their medical certification status information. b. *States Would Record Additional Specified Data if the Driver Is Subject to Part 391.* This proposal builds on the proposal developed by the negotiated rulemaking advisory committee. The SDLAs would become the keepers of the record for the medical examiner's certification information. The SDLA would then become the primary source for verification of medical certification status. It is therefore critical that the States record enough information to enable enforcement officials to trace the medical examiner's certificate back to the medical examiner in cases where investigations occur and find there are problems with the driver's certification. FMCSA would require States to modify their information systems to add new data fields to the CDLIS driver record. One data field would record which of the two possible certifications the driver made regarding the applicability of part 391. If the driver certifies he or she is subject to part 391, then FMCSA would require the State to record on the CDLIS driver record the following information: ○ Medical examiner's name. ○ Medical examiner's license or certificate number and the State that issued it. ○ Medical examiner's National Registry identification number (if the National Registry of Medical Examiners, required by 49 U.S.C. 31149(d), as added by section 4116(a) of SAFETEA-LU requires one). 3 3 Section 31149(d) becomes effective August 10, 2006. See section 4116(f) of SAFETEA-LU. FMCSA plans to implement regulations establishing the National Registry of Medical Examiners in the future. In order to minimize the number of times States have to update their information systems, States may want to make provisions in the CDLIS driver record to accept this information should it be required. ○ Date of physical examination/issuance of the medical examiner's certificate to the driver. ○ Medical certification status determination (receipt of a current medical examiner's certificate means “qualified.”) ○ Expiration date of medical examiner's certificate (this can vary, depending on CDL driver's medical condition, from 3 months to 2 years). ○ Information from FMCSA that a medical variance was issued to the driver. ○ Any restriction ( *e.g.* , corrective lenses, hearing aid, etc.). ○ Date the information is entered on CDLIS driver record. States would be required to keep a copy or an electronic image, including the time stamp, of the medical examiner's certificate received from the driver for 6 months so that FMCSA may request access to these certificates to verify States are inputting information in an accurate and timely manner as part of a State CDL compliance review. c. *State Input of Data for Medical Variances.* FMCSA proposes adding information about the existence of medical variances, for example, the existence of a vision exemption or SPE certificate, to the CDLIS driver record maintained by the SDLA. Enforcement personnel could obtain both the current medical certification status, ascertain whether the driver has a medical variance, and determine the identity of the medical examiner, all by an electronic inquiry to CDLIS. Interstate drivers (both CDL and non-CDL) granted an exemption from one or more of the FMCSRs are required by its terms and conditions to carry the exemption document or legible copy in their possession while driving. Drivers who are granted a SPE certificate are required by regulation to carry the SPE certificate or a legible copy. (49 CFR 391.49(j)). It is important for enforcement personnel to know about the existence of medical variances that require the driver to carry such additional supporting information. Enforcement personnel are directed to ask such drivers to show them the required additional documentation the driver is required to carry as a condition of that medical variance. This requirement to include information about existing medical variances on the CDLIS driver record thus ensures that enforcement personnel can verify whether the driver is in compliance with the conditions for the issuance. d. *Notification of Drivers.* Currently, most States notify drivers when an action is going to be taken against their driver license privilege. In this NPRM, FMCSA proposes that States notify interstate CDL drivers when they plan to downgrade the driver's license based on the lack of a valid medical certificate. FMCSA believes each State already has an automated system that generates notices for drivers who are identified for suspension action. The Agency further believes that these State systems could be modified to identify and notify drivers whose medical certification status has expired, and whose CDLs thus must be downgraded. FMCSA included the cost of adding CDL drivers subject to part 391 to these State notification systems, as part of the developmental costs for the proposed rule during years one through three. The ongoing major cost of the notification system would be operational, at an estimated cost of $0.40 per driver notified. For calculating the maximum possible impact on the States, FMCSA used the worst case scenario that would show all drivers receiving a notice of a CDL downgrade, for a total national cost of $1.29 million per year, which is included in the total estimated State costs discussed later in the preamble's Summary Cost Benefit Analysis section. (See section F. “Summary Cost Benefit Analysis.”). FMCSA is seeking comment concerning the number of notifications the States would need to mail to CDL drivers receiving notice of a downgrade. e. *Costs.* FMCSA estimates that the requirements set forth in this NPRM would cost the States $18.3 million over the first 3 years of implementation and would decrease to $4.0 million per year in the fourth year and afterward. For further detail on the cost issue, see section F. “Summary Cost Benefit Analysis,” contained below in this NPRM, or the more detailed stand alone Regulatory Evaluation document contained in the docket. FMCSA is seeking comments about whether these evaluations of the cost impacts are accurate. 3. Potential Impacts on Motor Carriers Employing CDL Drivers a. *Carrier Would Request a Copy of the CDLIS Motor Vehicle Record from the Current State of Licensure Before Allowing the Driver to Operate a CMV in Interstate Commerce.* Under the proposed rule, the motor carrier that employs a CDL driver subject to part 391 to operate a CMV would need to obtain the driver's CDLIS MVR, verify the driver has a medical certification status of qualified, and place that CDLIS MVR in the driver qualification

(DQ)file, (thereby documenting medical certification for such CDL drivers) before allowing the driver to operate a CMV for the motor carrier. Under FMCSA's current regulation, the motor carrier has up to 30 days to obtain the driver's MVR (for both CDL and non-CDL drivers) and place it in the DQ file (49 CFR 391.23(b)). The driver is immediately permitted to begin operating a CMV pending completion of the driver record check. However, the proposed rule would change this current practice by requiring the motor carrier to obtain and place a copy of the driver's CDLIS MVR in the DQ file before allowing an interstate CDL driver to operate a CMV. FMCSA believes the 30-day timeframe specified in § 391.23(b) is a hold-over from years ago when this process was accomplished via regular U.S. mail. Now States offer driver's MVRs electronically, and numerous companies sell a service to assist motor carriers to obtain MVRs. FMCSA believes many motor carriers are already obtaining MVRs electronically, generally before making an offer to hire the driver. For this reason, this NPRM would not impose any significant additional burden on motor carriers except those that are letting newly hired drivers operate a CMV before verifying the driver holds a valid CDL. There would be no change in the current 30 days allowed to obtain a motor vehicle record for non-CDL drivers who must also provide a copy of their medical examiner's certificate. Under this proposed rule, motor carriers would no longer be required to place a copy of a current medical examiner's certificate in the DQ file for CDL drivers subject to part 391. Information about the current medical certification status for those drivers would be on the CDLIS MVR the motor carrier is already required to obtain and place in the DQ file. However, the motor carrier would be required, under the proposed rule, to obtain and file a copy of *any* medical exemption granted to a CMV driver (both CDL and non-CDL). Carriers are already required to obtain a copy of an SPE certificate. (49 CFR 391.49(j)(1)) b. *Costs.* FMCSA believes the net cost impact on motor carriers would at worst be neutral, and more likely is a modest cost saving. Carriers would be relieved of obtaining or making a copy of the medical examiner's certificate and placing a copy of it in the DQ file for CDL drivers subject to part 391. This proposal would expand an existing requirement for the motor carrier to obtain or make a copy of *any* medical variance, *e.g.* , Medical Exemption document or SPE certificate, granted to a CMV driver and place it in the driver qualification file for the small number of drivers with such a medical variance. However, motor carriers would also be required to obtain the CDLIS MVR before allowing CDL drivers to operate a CMV. 4. Potential Impacts on Drivers. a. *Privacy Rights.* FMCSA does not believe the proposed rule would have an adverse effect on drivers' privacy for the following reasons. First, none of the driver's confidential medical information ( *i.e.* specific details from the “long form” or the actual medical records maintained by medical examiners) would be placed on the CDLIS driver record—the SDLA would post the FMCSA-specified status information regarding whether the driver is currently medically certified, which does not include confidential information. A status of not-qualified does not violate any privacy right, as it does not provide any detail as to the reason for being not-qualified. In other words, a status of not-qualified could just as well mean the driver decided not to take a physical examination because he or she is not currently working as a CDL driver. Second, information about the issuance of medical variances is already public. Information about the granting of any exemptions, *e.g.* , vision, diabetes, is published in the **Federal Register** (49 U.S.C. 31315(b)). Alternatively, if a driver has a medical examiner's certificate based on having an SPE certificate, the medical examiner's certificate has the box checked saying it is only valid when accompanied by an SPE certificate. Thus, any enforcement personnel or potential employer would or should know about the condition requiring the driver to have in his or her possession an SPE certificate or a legible copy whenever operating a CMV. (49 CFR 391.49(j)(1). Finally, access to the data on the CDLIS driver record is restricted to only FMCSA, States, motor carrier employers for authorized use and the driver. (49 CFR 384.225(e)). Enforcement personnel accessing this information via NLETS are similarly restricted to official use. The Driver Privacy Protection Act (18 U.S.C. 2721-2725) provides additional restrictions on access to the driver record. However, FMCSA is seeking comments about whether there would be any issues under the Privacy Act (5 U.S.C. 552a) regarding access to CDL drivers' medical examiner's certificate information arising from the provisions set forth in this proposal. b. *Impact if a Driver Is Found Operating a CMV with a Medical Certification Status of “Not-qualified” or No CDL Privilege Because of a Downgrade of the CDL.* This rulemaking proposal would require the appropriate medical certification status information to be placed on the CDLIS driver record for all CDL holders, and would remove the requirement for CDL drivers subject to part 391 to carry the medical examiner's certificate. However, the proposal would also establish that the medical certification status information be made available to enforcement personnel as well as to drivers and employing motor carriers. This is expected to become an increasingly valuable enforcement tool, particularly in conjunction with anticipated future rulemakings dealing with driver physical qualifications, such as establishment of the Congressionally-mandated National Registry of Medical Examiners. Nonetheless, nothing in this proposed rule prevents a CDL driver subject to the requirements of part 391 from retaining a copy of the medical examiner's certificate for his or her own records, particularly in the event an SDLA fails or delays in entering the information onto the CDLIS driver record. All non-CDL drivers would continue to provide a copy or original of the medical examiner's certificate to their employing motor carrier, a requirement not changed by this proposed rule. This NPRM proposes a new requirement that a CDL driver subject to part 391 would have his or her CDL downgraded within 60 days of the medical certification status expiring, *i.e.* , the status becoming “not-qualified.” Under 49 CFR part 383 after such a downgrade, a driver found operating a CMV in interstate commerce without a valid CDL, when the regulations require the driver to hold one, could receive a traffic offense citation for violating § 383.51(c)(6). Thus the downgrade proposed in this NPRM could lead to a traffic conviction requiring a 60-day CDL disqualification on the CDLIS driver record for the first offense. This conviction would be retained and considered in any future licensing action, including intrastate CDL eligibility. This proposed downgrade within 60 days would provide safety benefits by significantly enhancing incentives for drivers to comply with the medical certification standards. Drivers could be placed out-of-service as part of a roadside inspection or traffic enforcement stop, if a driver is found operating a CMV in interstate commerce with a downgraded CDL that resulted from the medical certification status becoming not-qualified because the driver failed to obtain the required new medical examiner's certificate. Currently, the driver could be cited and possibly fined for operating a CMV without a valid medical certification, but generally the driver would be allowed to continue to drive. Additionally, unless this violation results in a carrier compliance review or other enforcement action, it has little impact on the motor carrier. (See 49 CFR 391.41(a)). By linking the medical certification status to the eventual status of the CDL, this proposed rule would provide greater enforcement tools to address driver qualification issues. If a driver's medical status becomes not-qualified, but the CDL has not yet been downgraded, the driver can be cited under current § 390.37 for not keeping his/her medical status current. In addition, while not proposed in this NPRM, FMCSA has the option of adding a similar, new disqualifying offense for a serious traffic violation under Table 2 of 49 CFR 383.51(c). This disqualifying offense would be applicable if a driver operates a commercial motor vehicle requiring a CDL in interstate commerce during the proposed 60-day window of having received a medical certification status of “not-qualified,” but the CDL has not yet been downgraded. If such a disqualifying offense were established, then any CDL driver operating in interstate commerce not excepted from part 391 who does not have a current medical examiner's certificate on file with their SDLA could receive a traffic citation for this serious traffic violation. FMCSA seeks comments about whether FMCSA should add such a disqualifying offense to Table 2 of § 383.51(c) for operating a CMV without the required medical certification. c. *Provision of Documentation to Motor Carrier for Medical Variance.* All drivers who operate CMVs in interstate commerce pursuant to a medical variance, such as an Medical Exemption or SPE certificate, would be required to provide their employing motor carrier with a copy of the medical variance document. The employing motor carrier would be required to place it in the DQ file. d. *Provision Requiring CDL Drivers to Provide Medical Certificate to SDLA.* Under the proposed rule, a CDL would not be issued, renewed, upgraded or transferred by the SDLA to a driver subject to 49 CFR part 391 qualification requirements, unless the State has on record a current medical examiner's certificate. Initially, drivers would not need to obtain a new medical examiner's certificate. Beginning 3 years after the effective date, drivers would be required to provide a copy or an original, as determined by the SDLA, of either their existing medical examiner's certificate or a new one, to their SDLA before any licensing action, including a renewal. Drivers would also be required to provide a copy or original of each new medical examiner's certificate to their SDLA. The information from these certificates, including their expiration dates, would be added to the CDLIS driver record by the SDLA. If the driver has not provided a current medical examiner's certificate within 5 years after the effective date of a final rule on this subject, or the certification expires, the CDL medical certification status would be marked as “not-qualified,” and the SDLA would be required to initiate a downgrade of the driver's CDL. The driver would be notified by the SDLA that the CDL would be downgraded. e. *Number of Drivers Subject to the Proposed Process.* The group of CDL drivers that would be most impacted by this rulemaking would be those not actively driving, are subject to 49 CFR part 391, but who are retaining their CDL without maintaining their medical certification. To estimate the number of possible drivers affected, FMCSA performed the following analysis. As of August of 2005, there were approximately 12.2 million CDL index or pointer records in the CDLIS central site index. The Agency estimates 10 percent of the CDLIS driver records associated with these index pointers are inactive. Based on an analysis of the split of inter- and intrastate drivers from the annual Drug and Alcohol Testing survey conducted by FMCSA, the Agency estimates about 74 percent of the estimated active 10.98 million CDLIS driver records are for interstate drivers, or about 8.13 million. For purposes of this analysis, it is assumed none of these are operating in excepted interstate commerce, *i.e.* , all of them are subject to part 391. If all of these CDL drivers, who had self-certified they were qualified to operate in interstate commerce, wish to retain their CDL, they would be required to present a copy or original of a current medical examiner's certificate to their SDLA, either at the time of the next issuance (as defined in 49 CFR 384.105(b)) of their CDL or when the medical certificate expires, whichever occurs first. Thereafter, they would have to provide the medical certificate every time it expired. Two years after the States would be required to be in compliance with this proposal (no later than 5 years after the effective date of a final rule on this subject), all of these drivers would not be allowed to continue operating CMVs in interstate commerce unless their CDLIS driver record includes the information that they have submitted a current medical examiner's certificate, prepared by a medical examiner, as defined in 49 CFR 390.5, to their SDLA demonstrating they are physically qualified under part 391. FMCSA estimates from its annual Drug and Alcohol Testing survey that 3.1 million CDL drivers of the estimated 8.13 million CDLs who self certified they are subject to part 391, are “actively” driving for a living. Therefore, the Agency estimates 5.03 million of these CDL drivers who certified that part 391 applies to them are not actively driving. The Agency further estimates that 2.26 million of these 5.03 million drivers would elect to obtain medical certification and retain their CDLs, while the remaining 2.77 million would have their CDL downgraded. This would leave a pool of 5.36 million medically certified CDL drivers (2.26 million + 3.1 million). Refer to the separate Regulatory Evaluation in the docket for this rulemaking for a more detailed discussion of the number of drivers likely to be affected by this proposal. (Note. This analysis does not include any attempt to estimate the number of CDL drivers who operate in excepted service, i.e., who operate in interstate commerce but are excepted from part 391 and do not need medical certification to retain their CDL.) f. *Impact of the New Code “W” on Drivers Domiciled in Canada, Mexico, and the United States.* Drivers of commercial motor vehicles who are domiciled in and licensed by, Canada or Mexico are subject to the requirements of U.S. law while operating a CMV in the United States. (49 U.S.C. 31132(4), 31502(a) and 31301(2)). These drivers must meet the FMCSA physical qualifications and must possess a license issued by their country of domicile that the U.S. has recognized as comparable to a U.S. CDL. FMCSA previously determined that the Canadian Provinces and Territories have medical and physical qualification requirements comparable to those applicable in the United States, with certain exceptions (49 CFR 391.41, note, as added by 67 FR 61818, October 2, 2002) The Canadian equivalent to CDLIS contains documentation of driver physical qualification, although the program requirements vary by Province and Territory. FMCSA also determined that the Licencias Federales de Conductor issued by the United Mexican States is itself evidence that the operator has met physical qualification standards required by the United States. (Commercial Driver's License Reciprocity with Mexico, (57 FR. 31454, July 16, 1992).) Proof of compliance with the medical certification requirements is recorded within the Mexican Licencias Federales de Conductor information system, as well as marked on the license document. Drivers must renew both their medical certification and Licencia Federal together every 2 years. FMCSA considers both licenses issued by Canadian Provinces and Territories in conformity with the Canadian National Safety Code and the Licencias Federales de Conductor issued by the United Mexican States, to satisfy the CDL requirements of 49 CFR part 383 (49 CFR 383.23(b)(1), note 1) and to be compatible with the U.S. CDLs. As indicated in the footnote to 49 CFR 391.41, Canada and the United States have entered into a reciprocity agreement that Canadian drivers who do not meet the physical qualification requirements specified in the Canadian National Safety Code, but are issued a Provincial or Territorial waiver/exemption, will be excluded from operating a CMV in the United States. Similarly, U.S. CDL drivers granted a medical variance will be excluded from operating a CMV in Canada. At a technical level, it was jointly determined by AAMVA and Canadian Council of Motor Transport Administrators (CCMTA) that a code of “W” would be placed on the commercial driver's license document to identify those drivers who are issued a waiver/exemption or variance to exclude them from operating in the other country. This NPRM proposes to establish a new restriction code by revising section 383.95 to specify a new restriction code “W” to be placed on the CDL document to identify U.S. CDL holders subject to part 391 who have obtained a medical examiner's certificate with a medical variance in order to operate CMVs in the United States. If implemented, this restriction will allow U.S. enforcement personnel to identify drivers who are required to carry the documentation supporting the medical variance, and Canadian authorities to identify U.S. CDL drivers who therefore are prohibited by Canadian jurisdictions from operating a CMV in Canada. Similarly, implementation of a “W” restriction on Canadian licenses would allow the United States to identify Canadian drivers who do not meet U.S. physical qualification standards. The U.S. has not yet discussed with Mexico the proposed creation or use of a “W” restriction on the CDLs issued in the United States. Therefore, the Agency is unable to assess the potential impact this restriction could have on U.S. drivers who intend to operate CMVs in Mexico. g. *Costs.* FMCSA estimates that the requirements set forth in this NPRM would cost drivers a total of $3.22 million per year beginning in the fourth year after the effective date of a final rule on the subject and every year thereafter. For more detail on the cost issue, see section F. “Summary Cost Benefit Analyses,” below in this NPRM, or the more detailed stand alone Regulatory Evaluation document contained in the docket. D. Implementation Date FMCSA proposes to begin enforcement of the requirements set forth in this NPRM 3 years after the effective date of a final rule on the subject. The Agency believes the standard 3-year phase-in period would provide the States with sufficient time to pass required State implementing legislation, to modify their information systems to begin recording the medical examiner's certificate information onto the CDLIS driver record, and to begin making that information available from the CDLIS driver record. Also, the proposed 3-year phase-in period would ensure employing motor carriers and drivers have an opportunity to familiarize themselves with the new requirements and that CDL drivers are prepared to provide a valid medical examiner's certificate to their SDLA as required by this NPRM. The Agency will also be working with the States to modernize CDLIS, as required by section 4123 of SAFETEA-LU. The CDLIS modernization plan will include a date by which all States must use the new version of CDLIS. Both the CDLIS modernization effort and inclusion of the medical examiner's certificate information on the CDLIS driver record will require States to update their CDLIS computer programs. The Agency requests comments about the importance of having the implementation schedule for this rule coincide with the implementation date for CDLIS modernization. The Agency is seeking comments about how many States will require passage of legislation to authorize them to carry out the proposals in this rulemaking, and whether the proposed three-year implementation period is sufficient. E. Section-by-Section Explanation of Changes Part 383 *Conforming amendments.* Throughout parts 383, 384, and 391 terms used referring to a driver record or driver history have been revised for clarity. The term “CDLIS driver record” refers to the electronic record of driver information and history stored by the State-of-Record as part of CDLIS. The Agency's use of the term “motor vehicle record” refers to the information provided to a driver or employer about the status and history of a driver. The term “CDLIS MVR” refers to the information provided to a driver or employer about the status and history of a driver that holds a CDL. *Section 383.5.* FMCSA proposes to add definitions for “CDLIS driver record” and “CDL downgrade.” *Section 383.71(a).* FMCSA proposes to revise the certification requirement in the CDL application process to clarify how applicants should certify if they operate in interstate commerce, but are excepted from part 391. *Section 383.71(g).* FMCSA proposes to add a new requirement that applicants who are subject to part 391 must begin providing their SDLA an original or a copy (at the State's option) of each medical examiner's certificate they obtain. *Section 383.73(a)(5).* FMCSA proposes to have the SDLA enter on the CDLIS driver record the certification made according to § 383.71(a)(1) and, if the driver is required to have a medical certificate, record the information from the certificate in the CDLIS driver record. *Section 383.73(b)(6).* FMCSA proposes to add a requirement for the SDLA, when a driver applies for a license transfer, to verify whether the driver is subject to part 391, and if so, whether the medical certification status is designated as “qualified” before taking any licensing action. To accommodate the period of time between the implementation date and when all drivers are required to submit medical certification information to the SDLA, FMCSA also proposes to allow drivers to provide SDLAs with their existing medical examiner's certificates. Those certificates must be issued with a date that is prior to 3 years after the effective date of the final rule on this subject, until the certificate expires, as evidence of current medical certification. *Section 383.73(c)(5).* FMCSA proposes to add the same requirement as § 383.73(b)(6) for the license renewal process. *Section 383.73(d)(3).* FMCSA proposes to add the same requirement as § 383.73(b)(6) to the license upgrade process. *Section 383.73(j).* FMCSA proposes to add a new CDLIS recordkeeping requirement for medical certification status information. A number of items displayed on the medical examiner's certificate would be recorded on the CDLIS driver record. The medical certification status information must be updated within 2 business days of receiving a new medical examiner's certificate, or a current certification expiring. If a driver's medical certification expires, the SDLA must initiate a downgrade of the CDL. The SDLA must accept and record within 2 business days on the CDLIS driver record any medical variance issued by FMCSA to a driver. *Section 383.95.* FMCSA proposes to add a second restriction and to rename the section. The new restriction would be coded as “W” and would indicate the driver has received a medical variance. Part 384 *Section 384.105.* FMCSA proposes to add a definition for CDLIS Motor Vehicle Record. The basic term of motor vehicle record was adopted from the existing usage. FMCSA solicits comments on whether some other descriptive title should be used instead, such as CDLIS driver history, or CDLIS driver and employer report. *Section 384.107.* The Agency would revise paragraph

(b)to incorporate by reference the most recent version of the CDLIS State Procedures Manual as of the final rule. *Section 384.206(a).* FMCSA proposes to revise this compliance requirement to include performing the record checks specified in § 383.73. *Section 384.206(b)(3).* The Agency would revise § 384.206(b) by adding a third required action to the two existing ones. This change would mean that a CDL for a driver subject to part 391 must be downgraded if the medical certification expires and no new medical examiner's certificate is provided. *Section 384.225.* The Agency would revise all paragraphs under

(e)to refer to the CDLIS driver record, and clarify in paragraphs (e)(3) and

(4)that drivers and motor carriers obtain this information according to State procedures on the CDLIS MVR. The Agency would also add a new paragraph

(f)to require States to provide the medical certificate information on the CDLIS, CDLIS MVR and CDL NLETS status and history responses. The title of the section would be changed from “Record of violations” to “CDLIS driver recordkeeping” to more accurately describe its contents. *Section 384.231.* The Agency would update the reference to the CDLIS State Procedures manual to be to the most recent version incorporated by reference into § 384.107(b). *Section 384.234.* The Agency would add a new compliance requirement to the existing State requirements in part 384 to comply with the State provisions specified in the proposed new § 383.73(j). Part 390 *Section 390.5.* FMCSA proposes to add a new definition for “medical variance” as an inclusive term for all Federal programs dealing with physical qualification, including exemptions, and skill performance evaluation certificates. This definition does not cover waivers issued under subpart B of part 381. These waivers are issued for short periods of time and any waivers will be addressed through program documentation and not the driver's licensing systems. FMCSA also proposes to add a definition for “motor vehicle record.” Part 391 *Section 391.2.* In § 391.2, FMCSA proposes to change the section name from “General exemptions” to “General exceptions.” This proposed change would establish consistency with the term “exception” as used in § 390.3(f) and to remove confusion with the different meaning of the word “exemption” as used in 49 CFR 381, Subpart C and 49 CFR 391.62. *Section 391.23(m).* FMCSA proposes to add a new paragraph

(m)to explicitly specify what the employer must do with regard to CDL drivers subject to part 391 to comply with the long-existing requirement in § 391.41(a). This paragraph makes it explicit that substituting the driver's CDLIS MVR for the medical examiner's certificate has an impact on the timing of when the motor carrier must obtain and place the MVR in the DQ file as part of the hiring process. All non-CDL drivers would continue to be required to provide a copy or original of the medical examiner's certificate to their employing motor carrier. *Section 391.41(a).* The Agency proposes to amend § 391.41(a) to delete the existing exception reference to § 391.67, and to add an exception that CDL drivers subject to part 391 would be excluded from the requirement to carry the medical examiner's certificate because their current medical certification status information would be on the electronic CDLIS driver record, and could be verified via CDLIS or NLETS inquiries, and on the CDLIS MVR for drivers and employers. Again, all non-CDL drivers would continue to be required to provide a copy or original of the medical examiner's certificate to their employing motor carrier. *Section 391.43(g).* The Agency proposes to amend § 391.43(g) to remove the requirement for the medical examiner to provide a copy of the medical examiner's certificate to the employing motor carrier, and to add a requirement that the examiner should retain a copy of all certificates for the duration of the certificate. *Section 391.51.* FMCSA proposes to update the requirements for what must be contained in the driver qualification

(DQ)file regarding medical certification for CDL drivers subject to part 391. These CDL drivers would no longer need to carry a medical examiner's certificate because the current status of their certification would be electronically available from CDLIS. Employers would satisfy the documentation requirement by obtaining the copy of the driver's CDLIS MVR they are already required to obtain from the SDLA and to place it in the DQ file. F. Summary Cost Benefit Analysis The regulatory evaluation describes and evaluates the proposal contained in this NPRM, as well as two other alternatives that were considered by the Agency. No changes are proposed in the physical qualification standards or medical advisory criteria for determining whether a driver may be medically certified as physically qualified to operate a CMV. A number of provisions are proposed to modify the procedures used to document a driver's current medical certification status as a condition for obtaining or retaining a CDL, and to enable motor carriers and enforcement personnel to verify the driver's medical certification status. Currently, CDL drivers subject to part 391 must certify that they meet the driver qualifications in 49 CFR part 391, in order to operate CMVs in interstate commerce. These drivers are required to carry a current medical examiner's certificate while driving, and motor carriers must keep a copy of the medical examiner's certificates of all such drivers they employ on file. The purpose of these certificates is to prove that the driver is physically qualified to operate a CMV in interstate commerce. Under current regulations, no information about the driver's self-certification regarding applicability of part 391 or any medical certification status information is required to be placed on the CDLIS driver record, and the driver does not need to show the medical examiner's certificate to State officials when applying for, renewing, upgrading, or transferring a CDL in most States. Alternative 1 This alternative would require medical certification status to be listed on the physical driver's license document of any driver holding a CDL who intends to operate a CMV in interstate commerce. In conducting this analysis, the Agency has assumed that in order to implement this alternative, the expiration periods for CDLs (average period of 5 years) and medical examiner's certificates (maximum period of 2 years) would need to be synchronized. While it is possible that States could list two separate expirations on a license, one for the license renewal and one for medical certification, SDLAs would still have to issue a new CDL each time the medical certification expired. As a result, listing two dates would not be likely to reduce processing costs. This alternative would require all States to renew both CDLs and medical certifications every time a medical certification was issued, and would therefore require them to process a much higher volume of CDLs. Drivers would also have to pay CDL renewal fees much more frequently. Currently, CDL renewal fees average $45 per renewal. This alternative, like the others listed below, would also require that States:

(1)Receive from the driver a medical examiner's certificate, and

(2)post specified information from it on the electronic CDLIS driver record prior to issuing, renewing, upgrading or transferring that driver's CDL. Implementing this proposal would require SDLAs to modify their driver licensing computer systems to accommodate this new information. In addition, States would need to establish methods for receiving medical examiner's certificates from drivers either via mail or fax, or by having drivers present the medical examiner's certificate in-person at a SDLA office. Table 1 below provides an itemized list by year of the costs incurred under this alternative. Costs in years 6 and later are identical to those for year 5 and are aggregated in the table. The net present value of the costs of this alternative over 10 years, assuming a 7 percent discount rate, is $526 million. Table 1.—Total Cost of Alternative 1 [Thousands of dollars] Year 1 Year 2 Year 3 Year 4 Year 5 Years 6-10 Total Licensing Costs * $0 $0 $0 $97,000 $97,000 $485,000 $679,000 Mailing Costs * 0 0 0 4,500 4,500 22,500 31,500 Planning and Design ** 1,785 1,785 0 0 0 0 3,570 State Compliance Reviews *** 0 0 0 1,700 1,700 8,500 11,900 State Training Costs ** 425 425 425 0 0 0 1,275 State Computer Systems Development ** 4,250 4,250 4,250 0 0 0 12,750 State Computer Operations ** 0 0 0 510 510 2,550 3,570 Data Entry Costs ** 0 0 0 4,400 4,400 22,000 30,800 CDLIS Testing Costs ** 250 250 250 0 0 0 750 Total costs 6,710 6,710 4,925 108,110 108,110 540,550 775,115 Total Costs (7 percent discount rate) 6,710 6,271 4,302 88,250 82,477 338,170 526,180 Total Costs (3 percent discount rate) 6,710 6,515 4,642 98,936 96,054 439,901 652,758 * Cost to be borne by drivers. ** Cost to be borne by States. *** Cost to be borne by Federal Government. Alternative 2 Under this alternative, States would be responsible for receiving, recording and providing data from a medical examiner's certificate received from the driver prior to the State issuing, renewing, updating or transferring a CDL for a driver who operates in interstate commerce. The State would be responsible for including the medical certification status information on all reports provided to persons authorized to access information from the CDLIS driver record. This includes those using CDLIS and NLETS to make the inquiry, and drivers and employing motor carrier requesting a CDLIS MVR. The SDLA would also be required to downgrade a CDL if the medical certification expires. It is anticipated States would prefer mail delivery of certifications from drivers rather than in-person delivery, because this is expected to be less costly to both States and drivers. The SDLA would then record the specified certificate information on the electronic CDLIS driver record. Implementing this change would enable enforcement personnel to gain electronic access to verify CDL drivers have a medical certification status of “qualified” during roadside inspections or traffic stops. The changes proposed under this alternative would ensure that all CDL drivers operating in interstate commerce who are not excepted from the driver qualification requirements of part 391 would have a medical certification status of “qualified” prior to the State issuing, renewing, upgrading or transferring a CDL. In addition, if a driver fails to obtain a new medical examiner's certificate before the old one expires, the State would be required to:

(1)Update the status of that driver's medical certification status to “not-qualified,” and

(2)begin taking action to downgrade that driver's commercial driving privileges unless a new, valid medical examiner's certificate is obtained by the driver. Table 2 below presents an itemized list of the costs associated with this alternative. The 10-year costs of this alternative are $59 million when discounted at 7 percent. Table 2.—Total Cost of Alternative 2 [Thousands of dollars] Year 1 Year 2 Year 3 Year 4 Year 5 Years 6-10 Total Planning and Design** $1,785 $1,785 $0 $0 $0 $0 $3,570 State Compliance Reviews*** 0 0 0 1,700 1,700 8,500 11,900 State Computer Systems Development** 4,250 4,250 4,250 0 0 0 12,750 State Computer Operations** 0 0 0 510 510 2,550 3,570 Training** 425 425 425 0 0 0 1,275 SDLA Data Entry Extra Time/Staffing** 0 0 0 2,200 2,200 11,000 15,400 CDLIS Testing Costs** 250 250 250 0 0 0 750 Mailing Costs* 0 0 0 4,500 4,500 22,500 31,500 Total 6,710 6,710 4,925 8,910 8,910 44,550 80,715 Present Value (Disc. at 7%) 6,710 6,271 4,302 7,273 6,797 27,871 59,224 Present Value (Disc. at 3%) 6,710 6,515 4,642 8,154 7,916 36,255 70,192 * Cost to be borne by drivers. ** Cost to be borne by States. *** Cost to be borne by Federal Government. Alternative 3 This alternative is similar to Alternative 2, with the exception that FMCSA would receive medical examiner's certificates through the mail or facsimile transmission from drivers, rather than having drivers submit the form directly to their licensing State. FMCSA would then enter the data and electronically route it directly to the licensing State as a CDLIS transaction, so that the information would be recorded on the driver's electronic CDLIS driver record. This alternative would require States to develop the capacity to receive medical certification information on drivers electronically. State CDL computer systems already have a similar capacity to receive traffic convictions that occur in other States, transmitted electronically from these States, so developing this capacity is possible. This alternative would also require FMCSA to develop the recordkeeping capacity to receive and record medical examiner's certificates for all CDL licensed interstate drivers. Table 3 below presents the costs associated with this alternative. The net present value of the total cost of this proposed rule after 10 years is $63 million when discounted at 7 percent. Table 3.—Total Cost of Alternative 3 [Thousands of dollars] Year 1 Year 2 Year 3 Year 4 Year 5 Years 6-10 Total Planning and Design ** $1,785 $1,785 $0 $0 $0 $0 $3,570 State Compliance Reviews *** 0 0 0 1,700 1,700 8,500 11,900 State Computer Systems Development ** 5,500 5,500 5,500 0 0 0 16,500 State Computer Operations ** 0 0 0 510 510 2,550 3,570 Federal Computer Start Up *** 150 125 0 0 0 0 275 Federal Computer Maintenance 0 0 0 12 12 60 84 Training ** 425 425 425 0 0 0 1,275 Data Entry Extra Time / Staffing *** 0 0 0 2,200 2,200 11,000 15,400 Mailing Costs ** 0 0 0 4,500 4,500 22,500 31,500 CDLIS Testing Costs ** 300 300 300 0 0 0 900 Total 8,160 8,135 6,225 8,922 8,922 44,610 84,974 Present Value (Disc. At 7%) 8,160 7,603 5,437 7,283 6,807 27,908 63,198 Present Value (Disc. At 3%) 8,160 7,898 5,868 8,165 7,927 36,304 74,322 *Cost to be borne by driver. **Cost to be borne by State. ***Cost to be borne by Federal Government. Alternative 2 is the least expensive of the 3 alternatives, although Alternative 3 is fairly cost competitive. Alternative 1 is by far the most expensive of the three alternatives. Its higher costs are due mainly to the need to synchronize the CDL renewal and medical certification renewal periods. Alternative 1 would entail a much higher volume of CDL renewals at SDLAs and, as a result, States would incur more costs and drivers would have to pay renewal fees much more frequently. The costs to the various entities under Alternative 2 are summarized in Table 4 below. These costs are undiscounted. States would bear costs in the range of $4-$6.7 million per year under this alternative for the first three years, and drivers would bear costs of slightly more than $3 million per year once they begin submitting their medical certificates to the States after year 3. Table 4.—Summary of Costs to Various Drivers/Entities, Alternative 2 Undiscounted [Thousands of dollars] Year 1 Year 2 Year 3 Later years State Costs $6,710 $6,710 $4,925 $3,998 Driver Costs 0 0 0 3,212 Federal Costs 0 0 0 1,700 Total 8,910 Benefits The Agency believes all three alternatives would offer comparable safety benefits. These benefits would result from preventing a limited percentage of physically not-qualified drivers from obtaining a CDL to operate CMVs in interstate commerce. FMCSA believes such not-qualified drivers are more likely to be involved in crashes than those who are qualified. The Agency estimates the proposed changes could result in the prevention of as many as 10 percent of the crashes attributable to physically not-qualified drivers. These benefits are expected to stem from a deterrent effect because the drivers would be providing their medical examiner's certificate to a government official, rather than a motor carrier, and may be less likely to engage in forgery. In addition, having easy electronic access to tracking information from the driver's medical certificate should facilitate any desired investigations of fraud in the medical certification system at the State and Federal level, and is likely to assist in exposing drivers that engage in untruthful statements about their medical certification status. Thus, certain types of fraud might be deterred. This proposed rule would also provide safety benefits by providing drivers with a greater incentive to renew their medical certifications on time. Currently, there are only minor penalties for driving with an expired medical certification. In addition, this violation is only caught if the driver is targeted for a roadside inspection or stopped for violating traffic laws. Since penalties are so light and there is a good probability of escaping detection, many drivers put off renewing their medical certifications until well after their old ones have expired. Once the medical certification becomes part of the CDLIS driver record, detection of expired medical certifications will become automated. In addition, States would have to send the drivers notice that action is being taken to downgrade their CDL unless a new medical certificate is submitted. As a result of this enhanced enforcement, drivers are more likely to renew their medical certifications in a timely manner. FMCSA believes that this more timely renewal by CDL drivers of medical certifications is likely to provide enhanced safety benefits for the entire motor carrier industry. During the 2-year renewal period between medical examinations some percentage of drivers will develop physical problems that make them physically unqualified to drive. For instance, a driver may have experienced a decline in eyesight, developed high blood pressure, kidney problems, or heart problems. If these drivers put off obtaining a new medical examination, they would remain an increased safety risk. However, if they are medically examined on schedule, the medical problems that have developed in the interim can be discovered and treated effectively. Effective treatment of the physical problem would reduce the safety risk the driver poses, and hence will yield safety benefits to the public in the form of fewer crashes involving physically unqualified drivers. The Agency acknowledges the fact that the level of the safety benefits that would accrue from the proposed changes in this NPRM are to some extent uncertain, and therefore has conducted a sensitivity analysis using two different levels of assumed safety benefits. If this proposed rule resulted in the avoidance of 10 percent of the crashes attributable to physically unqualified drivers, it would prevent approximately 268 crashes per year. The Agency estimates that the average cost of a truck or bus crash with a CDL driver is $69,439. Avoiding 268 crashes would therefore result in approximately $18.6 million in annual undiscounted crash avoidance benefits. At this possible level of benefit, Alternative 2 would be cost beneficial, with an estimated 10-year net benefit of $20.7 million, assuming a 7 percent discount rate. Alternative 2 would also be cost beneficial if it resulted in avoiding only 4 fatal truck or bus crashes per year. These figures are summarized in Table 5 below. Alternative 3 would also be cost beneficial at this level of crash avoidance, with a slightly lower total net benefit of $16.8 million. Alternative 1 would not be cost-beneficial at this level of benefit. Table 5.—10-Year Benefit Cost Comparison—All Crashes 7 Percent Discount Rate [Thousands of dollars] Year 1 Year 2 Year 3 Year 4 Year 5 Years 6-10 Total Discounted Crash Avoidance Benefits $0 $0 $0 $7,596 $14,197 $58,211 $80,004 Discounted Total Costs 6,710 6,271 4,302 7,273 6,797 27,871 59,224 Discounted Net Benefits −6,710 −6,271 −4,302 322 7,400 30,341 20,780 An alternative benefit-cost comparison for Alternative 2 based on an assumption of only a 5 percent reduction in crashes attributable to preventing physically not-qualified drivers from obtaining a CDL to operate CMVs is presented in Table 6 below. The proposed rule would not be cost beneficial at this level of crash prevention. The net present value of net costs under this level of benefits is $19 million. At this level of benefit, none of the alternatives would be cost beneficial. Were this proposed rule to result in no safety benefits, its total 10-year cost would be $59 million. Table 6.—10-Year Benefit Cost Comparison, Alternative 2 with Reduced Crash Avoidance 7 Percent Discount Rate [Thousands of dollars] Year 1 Year 2 Year 3 Year 4 Year 5 Years 6-10 Total Discounted Crash Avoidance Benefits $0 $0 $0 $3,798 $7,099 $29,106 $40,003 Discounted Total Costs 6,710 6,271 4,302 7,273 6,797 27,871 59,224 Discounted Net Benefits −6,710 −6,271 −4,302 −3,475 301 1,235 −19,222 Because of the speculative nature of the benefits, it is possible that none of the Alternatives is cost beneficial under the terms of this proposal. This proposal implements the congressional mandate in section 215 of MCSIA. FMCSA anticipates it would also implement the National Registry of Medical Examiners as required by SAFETEA-LU, which the Agency believes could make further improvements in the medical certification program. The proposed requirements set forth in this NPRM are an important first step, and the Agency is separately considering additional changes to improve the medical certification processes in the future. The current changes proposed here are critical precursors for delivering electronic verification of improved medical certification information to State driver licensing agencies and roadside and traffic enforcement personnel as part of their programmatic processes. The FMCSA is also hopeful that substantial information quality improvements would result from the anticipated future rulemakings in the medical certification arena. FMCSA anticipates the combination of this proposed rule and future actions involving the medical certification program would achieve substantial safety benefits to the public. A full description of how these costs and benefits estimates were developed is in the Regulatory Evaluation in the docket of the rulemaking) G. Rulemaking Analyses Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures FMCSA determined this proposed rulemaking is a significant regulatory action within the meaning of Executive Order 12866, and is significant within the meaning of Department of Transportation regulatory policies and procedures. The NPRM is significant because of the level of congressional and public interest in the proposed rule. The NPRM has been reviewed by the Office of the Secretary and the Office of Management and Budget (OMB). This rulemaking would require States to verify that CDL holders who are subject to the physical qualification requirements under 49 CFR part 391 have obtained a medical examiner's certificate issued by a medical examiner, or certify that they are either operating entirely in excepted interstate commerce or entirely in intrastate commerce. The States would be required to enter either:

(1)The information from the medical examiner's certificate, or

(2)the information from the CDL application that the driver claimed exempt status or plans to operate entirely intrastate, onto the CDLIS driver record to be available to Federal and State enforcement agencies via CDLIS or NLETS inquiries and to drivers and employers on the CDLIS MVR. The development costs the States would incur to implement this proposed rule include the cost to modify each State's information systems to enable them to record which certification the CDL driver made, and for those so required, information from the medical examiner's certificate to verify the driver's physical qualification. Operational costs to States include hiring and maintaining sufficient staff to receive these certificates from interstate CDL drivers at least every 2 years (in some cases more often), and to perform data entry functions to record all information from the paper medical examiner's certificates. State costs also include a requirement to downgrade the driver's CDL and to notify the driver of the planned downgrade, as well as updating the programs that provide the following responses: CDLIS, CDLIS equivalent for NLETS and CDLIS MVR status and history to users authorized in 49 CFR 384.225(e) to include specified medical certification status information. More details about these requirements are discussed under the section titled, “Executive Order 13132 (Federalism),” below. Regulatory Flexibility Act The Regulatory Flexibility Act requires Federal Agencies to take small businesses' particular concerns into account when developing, writing, publicizing, promulgating and enforcing regulations. To achieve this goal, the Act requires that agencies detail how they have met these concerns, by including a Regulatory Flexibility Analysis (RFA). An initial RFA, which accompanies an NPRM, must include the following five elements:

(1)A description of the reasons why action by the Agency is being considered. The Agency has identified numerous instances in which drivers who are physically unqualified or have failed to be medically examined have obtained CDLs and operated CMVs in violation of Federal regulations. The Agency believes, and research suggests, 4 that physically unqualified drivers are significantly more likely to be involved in motor vehicle crashes. The continued operation of CMVs by physically unqualified drivers therefore poses a significant risk to the health and safety of the general public. FMCSA believes that the changes being proposed here would, if implemented, reduce the number of large truck crashes that occur, and the losses in property, health, and lives that are associated with them. 4 See for instance: Ogden, E.J.D. and Moskowitz, H. “Effects of Alcohol and Other Drugs on Driver Performance.” *Traffic Injury Prevention.* 5:185-198. 2004. J. Terran-Santos, M.D., A. Jimenez-Gomez, M.D., J. Cordero-Guevara, M.D., and the Cooperative Group Burgos-Santander. 1999. “The Association Between Sleep Apnea and the Risk of Traffic Accidents.” *New England Journal of Medicine.* 340:11. pp. 847-851 .

(2)A succinct statement of the objectives of, and legal basis for, the proposed rule. The objectives of the proposed rule are to inhibit physically unqualified drivers from falsely certifying they are qualified or submitting fraudulent medical examiner's certificates, and thus reduce the number of physically unqualified drivers who are obtaining CDLs and operating CMVs in interstate commerce in violation of Federal regulations. This proposed rule would also bring the CDL process into compliance with the requirements of section 215 of MCSIA, that requires FMCSA to initiate a rulemaking to provide for a Federal medical qualification certificate to be made part of the CDL. The changes being proposed here would bring the Agency into compliance with that mandate.

(3)A description of and, where feasible, an estimate of the number of small entities to which the proposed rule would apply. The latest estimates from the Agency's MCMIS database (February 2006) indicate a total of approximately 685,000 interstate motor carriers. However, FMCSA analysts believe the number of truly “active” motor carriers ( *i.e.* , those currently moving freight or passengers, operating under their own authority, and with required filings on record with FMCSA) is probably less than 500,000. For this analysis, FMCSA used the estimate of 475,500, which is based on research conducted in calendar year 2005. This number includes both for-hire and private interstate carriers. For this analysis, the Agency assumes that 75 percent of existing motor carriers are defined as small entities, since the Economic Census data and conversations with trade associations both indicate that approximately 75 percent of motor carriers qualify as small businesses. Therefore, of the 475,500 current motor carriers in MCMIS, approximately 356,625 are considered small entities and this proposed rule would apply to all that use CDL drivers operating in interstate commerce. The changes being considered here would slightly reduce the paperwork and documentation requirements on employing motor carriers. Motor carriers are currently required to obtain a copy of the medical certificate from each driver they hire prior to letting that driver operate a CMV in interstate commerce. Motor carriers are also required to obtain from the drivers' SDLAs the MVR for all drivers they employ. This proposed rule change would enable motor carriers to get both the medical examiner's certificate and MVR from the licensing SDLA with one transaction. This proposed change would therefore reduce the current reporting and recordkeeping requirements for all motor carriers.

(4)A description of the proposed reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which would be subject to the requirements and the type of professional skills necessary for preparation of the report or record. These proposed rules would change the source from which motor carriers gather medical certification status for CDL drivers operating in interstate commerce. Currently, drivers provide an original or copy of the medical examiner's certificates to motor carriers. If this proposed rule were to go into effect, motor carriers would instead obtain driver medical certification status information for interstate CDL drivers from the driver's licensing SDLA, as part of the driver's MVR that the motor carrier must already collect when hiring a new driver. This NPRM would also reduce recordkeeping requirements for those drivers who must comply with the proposed requirements because they would no longer be required to carry a copy of their medical examiner's certificate with them while driving a CMV. However, driver reporting requirements would be increased very slightly—most interstate CDL drivers would need to mail a copy of their medical examiner's certificates to their SDLA each time they receive a new certificate rather than provide their current employing motor carrier with a copy.

(5)An identification, to the extent practicable, of all Federal rules which may duplicate, overlap, or conflict with the proposed rule. This proposed rule would make information from the medical certificate a part of the commercial driver's license. FMCSA is not aware of any other regulations which would duplicate, overlap, or conflict with the proposed rule. The entire Regulatory Flexibility analysis is available in the docket for this proposal. FMCSA has preliminarily determined that this proposed rule would not have a significant economic impact on a substantial number of small entities. FMCSA seeks comments on the Regulatory Flexibility analysis set forth in this NPRM. Executive Order 12988 (Civil Justice Reform) This proposed action would meet 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. Executive Order 13045 (Protection of Children) FMCSA analyzed this proposed action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. FMCSA determined preliminarily that this rulemaking would not concern an environmental risk to health or safety that may disproportionately affect children. Executive Order 12630 (Taking of Private Property) This proposed rulemaking would not involve taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Executive Order 13132 (Federalism) This proposed action was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (64 FR 43255, August 10, 1999), which requires agencies to develop “an accountable process to ensure meaningful and timely input by State and local government officials in the development of regulatory policies that have Federalism implications.” Policies that have Federalism implications are defined in the Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, Federal agencies may not issue a regulation that has Federalism implications, that imposes substantial direct costs, and that is not required by statute unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the Agency consults with State and local officials early in the process of developing the proposed regulation. Also, Federal agencies may not issue a regulation that has Federalism implications and that preempts State law unless the Agency consults with local government officials early in the process of developing the proposed regulation. If FMCSA believes it complies by having consulted with the States, Executive Order 13132 requires FMCSA to provide to OMB in a separately identified section of the preamble to the rulemaking a “Federalism Summary Impact Statement (FSIS).” The FSIS must include:

(1)A description of the extent of FMCSA's prior consultation with State and local government officials;

(2)a summary of the nature of their concerns;

(3)the Agency's position supporting the need to issue the regulation; and

(4)a statement of the extent to which the concerns of State and local government officials have been met. Also, when FMCSA transmits a draft final rule with Federalism implications to OMB for review pursuant to Executive Order 12866, FMCSA must include a certification from the Agency's Federalism official stating that FMCSA has met the requirements of Executive Order 13132 in a meaningful and timely manner. Nothing in this proposal would directly preempt any State law or regulation. However, FMCSA believes this proposed action has Federalism implications because it would impose new direct operational costs on States, which would no longer be funded by FMCSA beginning 3 years after implementation, and limit State policymaking discretion if the State chooses to issue CDLs in compliance with the proposed revisions. Thus, the requirements of section 6 of the Executive Order regarding consultation would apply to this proposed rule. FMCSA will consult with State officials, including elected officials, on this proposal. In addition, FMCSA requests comments to the docket from elected State officials regarding the proposals in this NPRM. Preliminary Federalism Summary Impact Statement

(FSIS)Over the years, State officials have been consulted on a variety of possible approaches for addressing the issue of including the medical certification information with the CDL. Alternative models for how the 1999 congressional mandate could be implemented were prepared and discussed with the American Association of Motor Vehicle Administrators (AAMVA) which sought additional feedback from some of its members regarding the models. AAMVA provided a document of their members' comments on those models, which is included in the docket. Most recently, FMCSA sent a letter to the States through the National Governors' Association advising them this proposed rule would be published this fall proposing requirements for the States to make changes to their CDL process and CDLIS implementations. A copy of the letter is included in the docket for this rulemaking. In addition to consultation, State and local officials have had the opportunity to provide official comments on this proposal. An ANPRM on this subject was published July 15, 1994 (59 FR 36338). Comments are in the docket, as is a summary of the comments prepared by FMCSA. An Advisory Committee was convened for a negotiated rulemaking. Materials from that Committee are in the docket. *Summary of the Nature of State and Local Government Officials' Concerns.* States have consistently expressed concern about what resources would be necessary to achieve compliance with whatever alternative is proposed as a regulation. This NPRM would require States to obtain a medical examiner's certificate from the driver and post specified current medical certification status information on the CDLIS driver record. States would also be required to check the driver's medical certification status:

(1)Prior to the CDL issuance, renewal, transfer and upgrade processes;

(2)during the licensing period to detect expiration of the medical certification; and

(3)as part of roadside and traffic enforcement activities. If the medical certification expires, the State would be required to downgrade the CDL and notify the driver that his/her CDL would be downgraded. To facilitate gathering information about possible impacts on States, FMCSA previously prepared draft concept models. These models were based in part on the work of the previous Committee and the public comments received in response to the ANPRM. Those draft models were presented to staff members of the AAMVA on June 17, 2003, for feedback about the feasibility of the models from a technical standpoint, potential costs with regard to modifications of State information systems necessary to implement various possible requirements, and preferred approach. The first model was based on using the medical examiner's certificate paper approach developed and recommended by the Committee. That model was expanded to include State capability for identifying problems and trends associated with medical certification, *e.g.* , a driver passing a medical examination after recently failing an examination conducted by a different examiner (possible “medical examiner shopping”). That capability is not included in this NPRM. The second model was premised on a more technology-based approach, which included processes to monitor medical examiners' performance ( *e.g.* , certifying individuals as meeting the physical qualification standards when, in fact, such individuals do not meet the requirements). A copy of the two models provided to AAMVA, and the feedback received from AAMVA, is included in the rulemaking docket. FMCSA seeks comments from States and other interested parties regarding the impacts the Agency assessed previously in its draft concept models for this proposed rule. An alternative FMCSA discussed with the States as part of the negotiated rulemaking for more explicitly addressing whether a driver is physically qualified within the CDL program was to require States to obtain, review, and approve the medical examination report (long form.) The States opposed that proposal. Another alternative examined in the Regulatory Impact Analysis for this proposal was to make the medical examiner's certificate and the CDL the same document and to require the driver to obtain a new CDL each time the driver is reexamined by a medical examiner. FMCSA determined that the costs of that approach would be extremely high because the medical examination schedule (maximum duration of 2 years) is dramatically shorter than the current CDL renewal cycle (on average, every 5 years). The approximate 5-year CDL renewal cycle would need to be changed to require drivers to renew their CDL, on average, much more often than every 2 years. Currently, 49 CFR 391.45 requires that all drivers who operate CMVs in interstate commerce must be medically examined and certified as physically qualified at least once every 2 years. Section 391.45(c) essentially requires a driver to be medically reexamined at any time an employer is concerned the driver's abilities to perform his/her usual duties may be impaired. FMCSA guidance to medical examiners says drivers should be given less than a 2-year certification if they have medical conditions that need more frequent monitoring. The medical exemptions for vision and diabetes granted by FMCSA under 49 CFR part 381 require annual reexamination and recertification. It is documented in a report available from the American Trucking Research Institute that there is a large turnover in employment among drivers. 5 Each time a driver changes employers, the new employer has the opportunity, as a condition of employment, to require a new medical examination, and a number of larger carriers do so. Because of these reasons, FMCSA estimates that at least 20 percent of the drivers granted a 2-year medical examiner's certificate are required to obtain at least one additional certificate during that 2-year period. 5 “Empty Seats and Musical Chairs; Critical Success Factors in Truck Driver Retention”, Chapter III, prepared by the Gallup Organization for the American Trucking Associations

(ATA)Foundation, October 1997. A copy of this report is available online at *http://www.atri-online.org/research/safety/images/Musical_Chairspdf.* Another alternative suggested by the States as part of the negotiated rulemaking, was that, as part of the requirement for each driver to submit his/her medical examiner's certificate to the State, the State would only record specified information from it on the CDLIS driver record, and make no other changes to the existing licensing processes. This alternative is potentially the least intrusive on existing CDL procedures used by the States, and is the one proposed in this NPRM. This NPRM would require the driver to maintain a valid medical certification status on his/her CDLIS driver record. Drivers would accomplish this by providing the SDLA with a current medical examiner's certificate documenting current medical certification status before the SDLA issues, renews, upgrades, or transfers a CDL, and every time the certificate expires. The SDLA would record the medical certification status information on the CDLIS driver record within 2 business days of receiving it. If the medical certification expires, the State would be required to downgrade the driver's CDL. The States would be required to notify the driver of the impending CDL downgrade as part of the process. This would be an incremental addition to existing driver notification systems operated by all States, but would increase the number of notifications they would send out. However, because CDL drivers are only a small percentage of the total number of CMV drivers, this should be a relatively small percentage increase in the volume of driver notifications required of States. This NPRM also proposes a revised standard for how employers and enforcement personnel would verify a driver's current medical certification status as part of their responsibilities. FMCSA Position Supporting Need to Issue this Regulation. This proposed requirement is congressionally-mandated by section 215 of MCSIA, which requires FMCSA to initiate rulemaking to provide for a medical qualification certificate to be made a part of the commercial driver's license program. This requirement is national in scope, requiring regulation of an aspect of safety for drivers engaged in interstate commerce. This proposal would establish a requirement for States to obtain a medical examiner's certificate from the CDL driver and record the information from it within 2 business days, documenting his or her physical qualifications to drive a CMV in interstate commerce. In developing this NPRM, FMCSA intends for States to have the maximum administrative discretion possible to determine how they choose to satisfy the proposed minimum medical certification and CDL regulations set forth in this NPRM. Through AAMVA, FMCSA works to develop and oversee technical details necessary for the CDLIS to successfully operate in compliance with the Agency's regulations. There is no preemption of State law. After the 3-year phase-in period proposed in this NPRM to allow for development and implementation of the proposed new CDLIS capabilities, FMCSA would begin monitoring whether the new requirements are being met as part of the standard State CDL compliance review process. If a State is determined, as part of the State CDL compliance review, not to have implemented the required minimum changes required by this proposal, the normal process specified in the 49 CFR 384, CDL compliance regulations for notifying the State about potential withholding of Federal-aid highway funds, would apply. FMCSA estimates the States would incur approximately the following costs to implement, and then operate the new procedures and CDLIS capabilities proposed in this NPRM. Table 7.—Summary State Costs Year Total national cost Average cost/state Year 1 $6.7 million $131,000 Year 2 6.7 million 131,000 Year 3 4.9 million 96,000 Continuing Years 4.0 million 78,400 *FMCSA Anticipates Federal Funds Would Be Available for the First 3 years to Pay Most of the Direct Costs Incurred by the States and Local Governments in Complying with the Regulation.* SAFETEA-LU provides two grant programs to assist the States in improving the CDL program, and for modernizing CDLIS as required by 49 U.S.C. 31309(e)(1)(D). FMCSA would consult with AAMVA and the States on how the CDLIS changes proposed in this NPRM could be included as part of the CDLIS modernization specifications. An additional possible source of limited grant funds would be from the SAFETEA-LU State MCSAP grant funds. (49 U.S.C. 31102). Expenses to implement the proposed CDL changes would be allowable as part of these grant programs for the first 3 years of implementing these requirements. These are 80 percent federal grant funds, and 20 percent State matching funds that cannot come from any other grant. Beyond the first 3 years, the Agency assumes that the States would adjust their fees to cover the remaining costs to comply with this proposal. *Statement of Extent to Which FMCSA Has Addressed the Concerns of State and Local Government Officials.* FMCSA believes the approach proposed for implementing the congressional requirement in section 215 of MCSIA responds to the concerns raised by State and local officials prior to the Agency's development of this NPRM to minimize any potential unfunded impacts on the States. The Agency has proposed steps necessary to achieve the objectives of the statute, and is providing all affected State and local officials notice and an opportunity for appropriate participation in the proceedings. In addition to the required publication of this notice in the **Federal Register,** FMCSA also proposes to continue to work through AAMVA early in the rulemaking process to bring these issues to the immediate attention of AAMVA's members, and to foster the maximum participation of elected State and local governmental officials in developing a final rule on the subject. FMCSA requests comments from elected State or local officials on these Federalism implications. All comments should be submitted to the docket for this rulemaking. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 requires that Agencies prepare analyses of proposals that would result in the expenditure by State, local and tribal governments, or by the private sector, of $100 million or more in any 1 year. Department of Transportation guidance requires that we use a revised threshold figure of $120.7 million, which is the value of $100 million in 2005 after adjusting for inflation. FMCSA has preliminarily determined that the impact of this proposed rulemaking would not be that large in any projected year. The estimated costs of this proposed rule are presented in the table below. The estimated costs to States of this proposed rule would not exceed $7 million in any 1 year. This figure is well below the $120.7 million threshold used by the Department in making an unfunded mandate determination. 6 Total 5 year costs are estimated at $26.3 million, so costs average slightly more than $5 million per year. This proposed rule would not impose a Federal mandate resulting in the net expenditures by State, local, or tribal governments, in the aggregate, or by the private sector, of $120.7 million or more (adjusted annually for inflation) in any one year. 2 U.S.C. 1531, *et seq.* 6 Memorandum titled: *Departmental Guidance:* Threshold of Significant Regulatory Actions Under the Unfunded Mandates Reform Act of 1995, From Assistant Secretary for Transportation Policy, April 5, 2004. Table 8.—State Costs of Proposal [Thousands of dollars] Year 1 Year 2 Year 3 Year 4 Year 5 Total Planning and Design $1,785 $1,785 $0 $0 $0 $3570 State Computer System Development 4,250 4,250 4,250 0 0 12,750 State Computer System Operation 0 0 0 510 510 1020 State Staff Training 425 425 425 0 0 1275 Data Entry Costs 0 0 0 2,200 2,200 4,400 Mailing Costs 0 0 0 1,288 1,288 2,576 CDLIS Testing Costs 250 250 250 0 0 750 5 Year Total 26,341 Executive Order 12372 (Intergovernmental Review) The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995

(PRA)(44 U.S.C. 3501-3520), a Federal Agency must obtain approval from OMB for each collection of information it conducts, sponsors or requires through regulations. FMCSA analyzed this proposal and determined that its implementation would increase the currently approved information collection burdens covered by OMB Control No. 2126-0006, titled “Medical Qualification Requirements,” which must be renewed by December 31, 2006; and OMB Control No. 2126-0011, titled “Commercial Driver Licensing and Test Standards,” which must be renewed by April 30, 2007. Table 9 captures the current and proposed burden hours associated with the two approved information collections. Table 9.—Current and Proposed Information Collection Burdens OMB approvals number Annual burden hours currently approved Adjustment burden hours proposed Change burden hours proposed Annual burden hours proposed 2126-0006 1,185,876 0 118,449 1,304,325 2126-0011 1,272,988 (62,597) 0 1,210,391 Totals 2,458,864 (62,597) 118,449 2,514,716 Following is an explanation of how each of the two information collections shown above would be impacted by this proposal. *2126-0006 Medical Qualification Requirement.* This rulemaking would increase slightly the information collection burden associated with the medical qualification requirement. The increase is attributed to FMCSA adjusting its estimate of the total number of medical examinations and the associated burden hours from 1,185,876 to 1,304,325 hours, and the proposed requirement for motor carriers to maintain a copy of the vision or diabetes exemption in the driver qualification file. Currently, FMCSA manages vision and diabetes exemption programs under its authority provided at 49 U.S.C. 31136(e) and 31315. Drivers that are granted an exemption are required under the terms and conditions of the exemption programs to carry on their person a copy of the exemption at all times but motor carriers are not required to maintain a copy of the exemption that may be granted from the physical qualifications standards. If a final rule is adopted, the estimated information collection burden for the medical qualification requirement would increase from 1,185,876 to 1,304,325 hours annually [1,301,378 hours for medical certificates + 11 hours for resolution of medical conflicts + 167 hours for SPE certificates + 946 hours for vision exemptions + 3 hours for migrant workers + 1,820 hours for diabetes exemptions]. FMCSA notes that the proposed rule would eliminate the requirement for motor carriers to maintain a copy of the medical certificate in the driver qualifications file of CDL holders. However, because the proposed rule would require the SDLA to maintain a copy of the CDL driver's certificate for at least 6 months from the date it is filed with the licensing agency, and to maintain the information from the certificate on the CDLIS driver record for interstate CDL holders, the information collection burden reductions for motor carriers are offset by the information collection burden increases for the SDLAs. The Agency would retain the requirement for a carrier to place a copy of the medical certificate in the driver qualification file for non-CDL drivers so that portion of the information collection burden remains unchanged. A copy of FMCSA's preliminary supporting statement is included in the docket referenced at the beginning of this NPRM. FMCSA requests comments on its estimates of the information collection burdens proposed in OMB Control Number 2126-0006. *2126-0011, Commercial Driver Licensing and Test Standards.* This information collection supports the DOT Strategic Goal of Safety by requiring that CDL drivers of CMVs subject to part 391 are properly licensed according to all applicable Federal requirements. The information being collected ensures that CDL drivers are qualified to hold a CDL and operate CMVs, and that States are administering their CDL programs in compliance with the Federal requirements. There would be a new requirement for SDLAs to collect and post to the CDLIS driver record the information contained on the medical examiner's certificate of CDL driver applicants and holders who are subject to part 391. A driver applicant applying for a CDL for the first time who is subject to the requirements of 49 CFR part 391 would provide an original or a copy of the medical examiner's certificate to the SDLA before it would issue the CDL. The SDLA would then post the information from the certificate to the driver's electronic CDLIS driver record for access by authorized personnel. When the driver renews, updates or transfers the CDL, the SDLA would verify whether the driver must have a medical certification, and if so that the driver's current medical certification is still valid before taking the licensing action. For drivers required to have a medical certification, in addition to providing the medical examiner's certificate to the SDLA for the initial application for a CDL, whenever a driver renews his/her medical certification either because it is about to expire, because there is a change in a medical condition or because it is requested by his/her employer, the driver must provide an original or copy of the new medical certificate to the SDLA. It is expected that the driver would mail the certificate to the SDLA. The SDLA would post the new medical examiner's certificate information to the electronic CDLIS driver record within 2 business days of receipt. If at any time the driver is no longer medically certified to operate in interstate commerce, the SDLA would notify the driver. The SDLA would also change the medical status on the electronic CDLIS driver record within 2 business days to either “not qualified,” “excepted” or “intrastate only,” if the driver can meet the State's intrastate medical requirements. If the status is “not qualified,” the SDLA would proceed with established State procedures for downgrading the CDL privilege. The process would be completed and recorded on the electronic CDLIS driver record by the State within 60 days of the driver becoming not qualified. This proposed medical certification status information on the CDLIS driver record would not be required to start until 3 years after the effective date of a final rule on this subject; thus, there would be no change in the total annual burden hours due to this new program change. During these 3 years, the SDLAs would, however, incur a combined one-time estimated cost of $18,245,006 to make systems revisions in order to accommodate the recordkeeping requirements of this proposed new requirement. This includes development of capabilities to record information from the medical examiner's certificate on the CDLIS driver record. It also includes updating all necessary systems to provide medical certification status information as part of the responses to inquiries by all users authorized under 49 CFR 394.225(e). During the first 3 years, there would be a change in the total annual burden hours due to the net results of:

(1)Program adjustments in regard to the increase in the number of CDLIS driver records from 11.3 to 12.2 million and

(2)the decease in the number of active CDLIS driver records ( *i.e.* records of former drivers that must be retained to meet State and/or Federal record retention requirements). Starting in the 4th and subsequent years, the additional decease in proposed total annual burden hours is due to the implementation of the new program change requiring States to collect and post the driver medical certification information on the interstate CDL holder's electronic CDLIS driver record. The major assumptions used for calculation of the information collection annual burden hours include the following:

(1)Currently, approximately 10% of the 12.2 million (or 1.22 million) CDLIS driver records are inactive drivers;

(2)it will take 3 years for States to pass legislation and make the necessary system revisions before the first medical certificate would be posted to the CDLIS driver record;

(3)there are approximately 4.2 million active CDL holders and 74% (or 3.1 million) are interstate drivers; and

(4)of the remaining 6.78 million inactive CDL holders (12.2−1.22−4.2 million = 6.78 million), approximately 55% of these drivers (or 2.76 million) would not retain their CDL once the proposed requirements are implemented in the 4th year. The following table summaries the annual information collection burden hours for current and proposed information collection activities for the first 3 years and the subsequent years. The total proposed annual burden of 1,210,401 hours for the first 3 years represents a decrease of 62,597 hours from the currently-approved total annual burden of 1,272,998 hours due to program adjustments discussed above. The additional decease in proposed total annual burden of 163,786 hours in subsequent years is due to the program changes implementing the new requirement as described above. A detailed analysis of the annual burden hour changes for each information collection activity can be found in the Supporting Statement of OMB Control Number 2126-0011. The Supporting Statement and its attachments are in the public docket for this rulemaking. Current and proposed information collection activities for states and CDL drivers Currently approved annual burden hours Proposed annual burden hours for first 3 Years (program adjustment) Proposed annual burden hours for subsequent years (program change) State to obtain and record the medical certificate information 0 0 127,667 State recording of medical certification status 0 0 3,118 State to verify the medical certification status of all interstate CDL drivers 0 0 1,710 Driver to notify employer of convictions/disqualifications 629,445 610,000 456,667 Driver to complete previous employment paperwork 395,500 384,300 287,700 States to complete compliance certification documents 1,632 1,632 1,632 CDLIS recordkeeping 237,004 204,302 158,064 Drivers to complete the CDL application 9,417 10,167 10,167 Total Current Burden 1,272,998 1,210,401 1,046,725 *Comments.* FMCSA requests your comments on whether the proposed information collection is necessary for FMCSA to achieve the goal of reducing truck and bus crashes, including:

(1)Whether the information is useful to this goal;

(2)the accuracy of the estimate of the burden of the information collection;

(3)ways to enhance the quality, utility and clarity of the information collected; and

(4)ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. You may submit comments on this information collection burden directly to OMB. The OMB must receive your comments by December 18, 2006. You must mail or hand deliver your comments to: Attention: Desk Officer for the Department of Transportation, Docket Library, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, 725 17th Street, NW., Washington, DC 20503. National Environmental Policy Act The Agency analyzed this proposed rule for the purpose of the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321 *et seq.* ) and determined under our environmental procedures Order 5610.1, published March 1, 2004 (69 FR 9680), that this proposed action is covered by a Categorical Exclusion

(CE)under Appendix 2, paragraph 6(t) in the Order from further environmental documentation. The CE relates to regulations that ensure States comply with the provisions of the Commercial Motor Vehicle Safety Act of 1986 by having appropriate laws, regulations, programs, policies, procedures and information systems concerning the qualification and licensing of persons who apply for a commercial driver's license, and persons who are issued a commercial driver's license. In addition, the Agency believes that the proposed action includes no extraordinary circumstances that would have any effect on the quality of the environment. Thus, the FMCSA preliminarily determines that the proposed action does not require an environmental assessment or an environmental impact statement. The Agency analyzed this proposed rule under section 176(c) of the Clean Air Act, as amended (CAA), (42 U.S.C. 7401 *et seq.* ) and implementing regulations promulgated by the Environmental Protection Agency. Approval of this proposed action is exempt from the CAA's general conformity requirement since it involves rulemaking and policy development and issuance. (Refer to 40 CFR 93.153(c)(2).) It would not result in any emissions increase nor would it have any potential to result in emissions that are above the general conformity rule's *de minimis* emission threshold levels. Moreover, it is reasonable that the proposed rule would not increase total CMV mileage, change the routing of CMVs, how CMVs operate, or the CMV fleet mix of motor carriers. Drivers are currently required to obtain and maintain medical certification as proof they meet the physical qualification standards of 49 CFR part 391. This proposed rulemaking would establish a requirement for States to record this medical certification information for CDLIS driver records accessible to FMCSA and State licensing and enforcement agencies through CDLIS and CDLIS equivalent for NLETS, and to drivers and employers on the CDLIS MVR. FMCSA requests public comment on these preliminary determinations. Executive Order 13211 (Energy Effects) FMCSA analyzed this proposed action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use. The Agency determined, preliminarily, that it would not be a “significant energy action” under that executive order because it would not be economically significant and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy. Privacy Impact Assessment FMCSA conducted a privacy impact assessment of this proposed rule as required by Section 522(a)(5) of the FY 2005 Omnibus Appropriations Act, Pub. L. 108-447, 118 Stat. 3268 (Dec. 8, 2004) [set out as a note to 5 U.S.C. 552a]. The assessment considers any impacts of the proposed rule on the privacy of information in an identifiable form and related matters. The entire privacy impact assessment is available in the docket for this proposal. List of Subjects 49 CFR Part 383 Administrative practice and procedure, Highway safety, and Motor carriers. 49 CFR Part 384 Administrative practice and procedure, Highway safety, and Motor carriers. 49 CFR Part 390 Motor carriers, Reporting and recordkeeping requirements, Safety. 49 CFR Part 391 Motor carriers, Reporting and recordkeeping requirements, Safety. In consideration of the foregoing, FMCSA proposes to amend parts 383, 384, 390 and 391 of title 49, Code of Federal Regulations (49 CFR parts 383, 384, 390 and 391) as follows: PART 383—COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND PENALTIES 1. Revise the authority citation for part 383 to read as follows: Authority: 49 U.S.C. 521, 31136, 31301 *et seq.* , and 31502; secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1766, 1767 (Dec. 9, 1999); sec. 1012(b) of Pub. L. 107-56; 115 Stat. 397 (October 26, 2001); sec. 4140 of Pub. L. 109-59, 119 Stat. 1144, 1726 (Aug. 10, 2005); and 49 CFR 1.73. 2. Amend § 383.5 to add definitions for “CDLIS driver record” and “CDL Downgrade” in alphabetical order to read as follows: § 383.5 Definitions. *CDL downgrade* means the State either:

(1)Restricts an unrestricted CDL to intrastate transportation, or interstate transportation excepted from part 391 as provided in 49 CFR 390.3(f) or 391.2; or

(2)the State removes the CDL privilege entirely from the driver license. *CDLIS driver record* means the electronic record in the Commercial Driver's License Information System established under 49 U.S.C. 31309 containing a CDL driver's individual status and history. 3. Amend § 383.71 by revising paragraph

(a)introductory text and paragraph (a)(1) and by adding a new paragraph

(g)to read as follows: § 383.71 Driver application procedures.

(a)*Initial Commercial Driver's License.* Prior to obtaining a CDL, an applicant must meet the following requirements:

(1)An applicant must certify either:

(i)He or she operates or expects to operate in interstate commerce, and is both subject to and meets the qualification requirements under part 391 of this chapter; or

(ii)He or she operates in interstate commerce, but engages exclusively in transportation or operation excepted from the qualification requirements of part 391 of this chapter, or he or she operates only in intrastate commerce and therefore is subject to State driver qualification requirements.

(g)An applicant who certifies according to (a)(1)(i) of this section must:

(1)At his or her first licensing action (new CDL, renewal, transfer or upgrade) on or after [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], provide the State with an original or copy of a medical examiner's certificate prepared by a qualified medical examiner, as defined in § 390.5 of this chapter, and

(2)In order to maintain a medical certification status of “qualified,” on or after [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], provide the State with all subsequently issued medical examiner's certificates. 4. Amend § 383.73 to: a. Redesignate existing paragraph (a)(5) to be (a)(6); b. Add a new paragraph (a)(5); c. Amend paragraph (b)(4)(ii) by removing the “and” from the end; d. Amend paragraph (b)(5) by removing the period and adding “; and” at the end; e. Add paragraph (b)(6); f. Amend paragraph (c)(3) by removing “and” at the end; g. Amend paragraph (c)(4) by removing the period and adding “; and” at the end; h. Add paragraph (c)(5); i. Amend paragraph (d)(1) by removing “and” at the end; j. Amend paragraph (d)(2) by removing the period and adding “; and” at the end; and k. Add paragraphs (d)(3) and (j), to read as follows: § 383.73 State procedures.

(a)* * *

(5)Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], record on the CDLIS driver record the certification made by the driver according to § 383.71(a)(1). If the driver certified according to § 383.71(a)(1)(i), then record all required information from the medical examiner's certificate to the CDLIS driver record in accordance with paragraph

(j)of this section.

(b)* * * (6)(i) Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], verify from the CDLIS driver record that the medical certification status is qualified if the CDLIS driver record indicates the applicant is subject to part 391 of this chapter under the provisions of § 383.71(a)(1)(i).

(ii)Exception. A driver may present a currently valid medical examiner's certificate issued prior to [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE]. The medical examiner's certificate provided by the driver must be posted to the CDLIS driver record in accordance with paragraph

(j)of this section.

(c)* * * (5)(i) Beginning [DATE 3 YEARS AFTER THE EFECTIVE DATE OF A FINAL RULE] verify from the CDLIS driver record that the medical certification status is qualified if the CDLIS driver record indicates the applicant is subject to part 391 of this chapter under the provisions of § 383.71(a)(1)(i).

(j)of this section.

(d)* * * (3)(i) Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE] verify from the CDLIS driver record that the medical certification status is qualified if the CDLIS driver record indicates the applicant is subject to part 391 of this chapter under the provisions of § 383.71(a)(1)(i).

(ii)Exception. A driver may present a current medical examiner's certificate issued prior to [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE]. The medical examiner's certificate provided by the driver must be posted to the CDLIS driver record in accordance with paragraph

(j)of this section.

(j)*Medical certification recordkeeping.*

(1)*Application for CDL.* Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], for each operator of a commercial motor vehicle required to have a commercial driver's license, the current licensing State must record the driver's certification information from § 383.71(a)(1). For drivers subject to part 391 of this chapter, the State must date stamp the medical examiner's certificate required by § 383.71(g) when received, retain the certificate, a copy, or an image for 6 months, and within 2 business days record the information from the medical examiner's certificate, including:

(i)Medical examiner's name;

(ii)Medical examiner's license or certificate number and the State that issued it;

(iii)Medical examiner's National Registry identification number (if the National Registry of Medical Examiners, required by 49 U.S.C. 31149(d), as added by section 4116(a) of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144, 1726 (Aug. 10, 2005)), requires one); 7 7 Section 31149(d) becomes effective August 10, 2006. (SAFETEA-LU section 4116(f)). Although the FMCSA plans to implement regulations establishing the National Registry of Medical Examiners in the future, in order to minimize the number of times States have to upgrade their licensing systems, States may want to make provisions in the CDLIS driver record to accept this information should it be required.

(iv)Date of physical examination/issuance of the medical examiner's certificate to the driver;

(v)Medical certification status determination;

(vi)Expiration date of the medical examiner's certificate;

(vii)Existence of any medical variance on the medical certificate, such as an exemption, Skill Performance Evaluation

(SPE)certification or grandfather provisions;

(viii)Any restriction ( *e.g.* , corrective lenses, hearing aid, etc.); and

(ix)Date the medical examiner's certificate information was posted to the CDLIS driver record.

(2)*Medical certification status updates.*

(i)Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], the State must, within 2 business days of receiving the original or copy of a medical examiner's certificate from the driver, post the medical examiner's certificate information specified in paragraph

(a)of this section to the CDLIS driver record.

(ii)Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], if a driver's medical certification or medical variance expires, or the FMCSA notifies the State that a medical variance was removed/rescinded, the State must:

(A)Update the CDLIS driver record within 2 business days to show the driver's current CMV medical certification status as “not qualified” and proceed with established State procedures for downgrading the license. The CDL downgrade must be completed and recorded within 60 days of the driver becoming not qualified to operate a CMV.

(B)Notify the CDL holder of his/her CDL not-qualified status and that the CDL is being downgraded.

(iii)Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], the State must, within 2 business days of receiving information from FMCSA regarding issuance or renewal of a medical variance for a driver, update the CDLIS driver record to include the medical variance information provided by FMCSA.

(iv)Beginning [DATE 5 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], if a driver subject to part 391 of this chapter has failed to provide a current medical examiner's certificate, the State must mark that CDLIS driver record as “not qualified” and downgrade the CDL following procedures in paragraph (j)(2)(ii) of this section. 5. Revise § 383.95 to read as follows: § 383.95 Restrictions. (a)(1) If an applicant either fails the air brake component of the knowledge test, or performs the skills test in a vehicle not equipped with air brakes, the State must indicate on the CDL, if issued, that the person is restricted from operating a CMV equipped with air brakes.

(2)For the purposes of the skills test, and the restriction, air brakes shall include any braking system operating fully or partially on the air brake principle.

(b)If the State is notified according to § 383.73(j)(2)(iii) that the driver has been issued a medical variance, the State must indicate the existence of such a medical variance on the CDL document by placing a “W” restriction on the CDL, if issued, indicating there is information about a medical variance on the CDLIS driver record. 8 8 In accordance with the agreement between Canada and the United States (see footnote to § 391.41), drivers with a “W” restriction on their commercial driver license are restricted from operating a CMV in the other country. PART 384—STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM 6. Revise the authority citation for 49 CFR part 384 to read as follows: Authority: 49 U.S.C. 31136, 31301 *et seq.* , and 31502; secs. 103 and 215 of Pub. L. 106-159, 113 Stat. 1753, 1767 (Dec. 9, 1999); and 49 CFR 1.73. 7. Amend § 384.105(b) by adding in alphabetical order the definition for CDLIS Motor Vehicle Record to read as follows: § 384.105 Definitions.

(b)* * * *CDLIS motor vehicle record (CDLIS MVR)* means a report generated from the CDLIS driver record meeting the requirements for access to CDLIS information and provided by States to users authorized in § 384.225(e)(3) and (4). 8. Revise § 384.107(b) to read as follows: § 384.107 Matter incorporated by reference.

(b)*Materials incorporated.* The AAMVA, Inc.'s “Commercial Driver License Information System (CDLIS) State Procedures Manual,” Version 4.0.2, March 2006, IBR approved for §§ 384.225(f) and 384.231(d). 9. Amend § 384.206 to: a. Amend paragraphs (a)(2)(ii) and

(iii)to replace the phrase “driving record” with the phrase “driver record” wherever it occurs; and b. Revise paragraphs (a)(1) and

(b)to read as follows: § 384.206 State record checks.

(a)*Required checks.*

(1)*Issuing State's records.* Before issuing, renewing, upgrading or transferring a CDL to any person, the driver's State of domicile must, within the period of time specified in § 384.232, check its own records as follows:

(i)The driver record of the person in accordance with § 383.73(a)(3) of this chapter; and

(ii)For a driver certifying according to § 383.71(a)(1)(i) of this chapter, the information on the person's CDLIS driver record about medical certification by a medical examiner, as defined in § 390.5 of this chapter.

(b)*Required action.* Based on the findings of the State record checks prescribed in this section, the State of domicile must do one of the following as appropriate:

(1)Issue, renew, upgrade or transfer the applicant's CDL;

(2)In the event a State obtains adverse information regarding the applicant, promptly implement the disqualifications, licensing limitations, denials, or penalties that are called for in any applicable sections of this subpart; or

(3)In the event the State has no information concerning the applicant's medical certification from drivers subject to part 391 of this chapter, or the medical certification status is “not-qualified,” the State must deny the requested CDL licensing action and downgrade an existing CDL. § 384.208 [Amended] 10. Amend § 384.208(b) by replacing the phrase “driver's record” with the phrase “CDLIS driver record”. 11. Amend § 384.225 to: a. Revise the section heading; b. Amend paragraphs (b),

(c)introductory text, and

(d)by replacing the term “driver history” wherever it occurs with the term “CDLIS driver record”; and c. Revise paragraphs

(a)and

(e)and add a new paragraph

(f)to read as follows: § 384.225 CDLIS driver recordkeeping. The State must:

(a)Record and maintain as part of the CDLIS driver record:

(1)All convictions, disqualifications and other licensing actions for violations of any State or local law relating to motor vehicle traffic control (other than a parking violation) committed in any type of vehicle.

(2)Medical certification status information.

(e)Only the following users or their authorized agents may receive the designated information:

(1)States—All information on all CDLIS driver records.

(2)Secretary of Transportation—All information on all CDLIS driver records.

(3)Driver—Only information on that driver's CDLIS driver record obtained on the CDLIS Motor Vehicle Record from the State according to its procedures.

(4)Motor Carrier or Prospective Motor Carrier—After notification to a driver, all information on that driver's, or prospective driver's, CDLIS driver record obtained on the CDLIS Motor Vehicle Record from the State according to its procedures.

(f)The content of the report provided a user authorized by paragraph

(e)of this section from the CDLIS driver record, or a copy of this record maintained for this purpose, must be comparable to the applicable report that would be generated by a CDLIS State-to-State request for a driver status

(SG)or driver history (SB), as defined in the March 2006 edition of the “CDLIS State Procedures Manual,” version 4.0.2., (incorporated by reference, see § 384.107) and must include the medical certification status information of the driver. § 384.226 [Amended] 12. Amend § 384.226 by replacing the phrase “driver's record” with the phrase “CDLIS driver record”. § 384.231 [Amended] 13. Revise § 384.231(d) by replacing the phrase “October 1998 edition of the AAMVAnet, Inc.'s ‘Commercial Driver License Information System (CDLIS) State Procedures,’ Version 2.0.” with the phrase “March 2006 edition of the AAMVA, Inc.'s ‘CDLIS State Procedures Manual,’ Version 4.0.2 and all other CDLIS documents referenced in the manual.” 14. Add new § 384.234 to read as follows: § 384.234 Driver medical certification recordkeeping. The State must meet the medical certification recordkeeping requirements of § 383.73(j) of this chapter regarding the driver's physical qualification as specified in the qualification standards of part 391 of this chapter. PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 15. The authority citation for part 390 continues to read as follows: Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502, 31504, and sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 1.73. 16. Amend § 390.5 by adding in alphabetical order the definitions for “medical variance” and “motor vehicle record” as follows: § 390.5 Definitions. *Medical variance* means a driver has received one of the following that allows issuance of a medical certification:

(1)An exemption from FMCSA permitting operation of a commercial motor vehicle pursuant to part 381, subpart C, of this chapter or § 391.64 of this chapter;

(2)A skill performance evaluation certificate from FMCSA permitting operation of a commercial motor vehicle pursuant to § 391.49 of this chapter. *Motor vehicle record* means the report generated from the driver record and provided to a driver or employer about the driving status and history of a driver. PART 391—QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE

(LCV)DRIVER INSTRUCTORS 17. Revise the authority citation for part 391 to read as follows: Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, and 31502; sec. 4007(b) of Pub. L. 102-240, 105 Stat. 2152; sec. 114 of Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113 Stat. 1767; and 49 CFR 1.73. 18. Amend § 391.2 by revising the heading to read as follows: § 391.2 General exceptions. 19. Amend § 391.23 to: a. Revise paragraphs (a)(1) and (b); and b. Add paragraph

(m)to read as follows: § 391.23 Investigation and inquiries.

(a)* * *

(1)An inquiry to the State driver license agency in every State where the driver held a motor vehicle operator's license or permit during the preceding 3 years to obtain that driver's motor vehicle record.

(b)A copy of the motor vehicle record(s) obtained in response to the inquiry or inquiries to each State driver license agency required by paragraph (a)(1) of this section must be placed in the driver qualification file within 30 days of the date the driver's employment begins and be retained in compliance with § 391.51. If no motor vehicle record is received from the State or States, the motor carrier must document a good faith effort to obtain such information, and certify that no record exists for that driver in that State. The inquiry to the State driver license agencies must be made in the form and manner each agency prescribes. (m)(1) The motor carrier must obtain a copy of, and place in the driver qualification file, the medical examiner's certificate required by § 391.43, and any medical variance on which the certification is based, before allowing the driver to operate a CMV.

(2)*Exception.* Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], before allowing the operation of a CMV by any driver required to have a commercial driver's license under part 383 of this chapter, and subject to the requirement of § 391.41(a) to be physically qualified to operate a CMV, the employing motor carrier must verify and document in the driver qualification file that the driver is currently medically certified, using the CDLIS motor vehicle record defined at 49 CFR 384.105 and obtained from the current licensing State in response to the inquiry required by paragraph (a)(1) of this section. Until [DATE 5 YEARS AFTER THE EFFECTIVE DATE OF FINAL RULE] for CDL drivers subject to part 391, if there is no medical certification status information on the CDLIS motor vehicle record obtained from the current State driver licensing agency, the employing motor carrier may accept an original or copy of a medical examiner's certificate issued for that driver prior to [DATE 3 YEARS AFTER THE EFFECTIVE DATE OF FINAL RULE] and place a copy of it in the driver qualification file before allowing the driver to operate a CMV. § 391.25 [Amended] 20. Amend § 391.25 to: a. Amend paragraph

(a)by replacing the phrase “into the driving record” with the phrase “to obtain the motor vehicle record”; b. Amend paragraph

(b)introductory text by replacing the phrase “driving record” with the phrase “motor vehicle record”; and c. Amend paragraph (c)(1) by replacing the phrase “response from each State agency to the inquiry” with the phrase “motor vehicle record”. 21. Amend § 391.41 to revise paragraph

(a)to read as follows: § 391.41 Physical qualifications for drivers.

(1)A person subject to this part must not drive a commercial motor vehicle unless he/she is medically certified as physically qualified to do so, and, except as provided in paragraph (a)(3) of this section, has on his/her person the original, or a copy, of a medical examiner's certificate that he/she is physically qualified to drive a commercial motor vehicle. 9 9 Effective December 29, 1991, the Administrator determined that the new Licencia Federal de Conductor issued by the United Mexican States is recognized as proof of medical fitness to drive a CMV. The United States and Canada entered into a Reciprocity Agreement, effective March 30, 1999, recognizing that a Canadian commercial driver's license is proof of medical fitness to drive a CMV. Therefore, Canadian and Mexican CMV drivers are not required to have in their possession a medical examiner's certificate if the driver has been issued, and possesses, a valid commercial driver license issued by the United Mexican States, or a Canadian Province or Territory and whose license and medical status, including any waiver or exemption, can be electronically verified. Drivers from any of the countries who have received a medical authorization that deviates from the mutually accepted compatible medical standards of the resident country are not qualified to drive a CMV in the other countries. For example, Canadian drivers who do not meet the medical fitness provisions of the Canadian National Safety Code for Motor Carriers, but are issued a waiver by one of the Canadian Provinces or Territories, are not qualified to drive a CMV in the United States. U.S. drivers who received a medical variance from FMCSA are not qualified to drive a CMV in Canada.

(2)A person is physically qualified to drive a commercial motor vehicle if:

(i)That person meets the physical qualification standards in paragraph

(b)of this section and has complied with the medical examination requirements in § 391.43; or

(ii)That person obtained a medical variance and has complied with the medical examination requirement in § 391.43.

(3)Exception. Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], a driver required to have a commercial driver's license under part 383 of this chapter, and who submitted a current medical examiner's certificate to the State in accordance with § 383.71(g) of this chapter documenting that he/she meets the physical qualification requirements of this part, no longer needs to carry on his/her person the medical examiner's certificate specified at § 391.43(h), or a copy. If there is no medical certification information on that driver's CDLIS motor vehicle record defined at 49 CFR 384.105, a current medical examiner's certificate issued prior to [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE] will be accepted until [DATE 5 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE]. 22. Amend § 391.43 by revising paragraph

(g)to read as follows: § 391.43 Medical examination; certificate of physical qualification.

(g)If the medical examiner finds that the person he/she examined is physically qualified to operate a commercial motor vehicle in accordance with § 391.41(b), the medical examiner shall complete a certificate in the form prescribed in paragraph

(h)of this section and furnish it to the person who was examined. The medical examiner shall retain a copy of the certificate for the duration of the certificate and give the original to the person examined. 23. Amend § 391.51 to: a. Amend paragraph (b)(2) by replacing the phrase “response by each State agency concerning a driver's driving record” with the phrase “motor vehicle record received from each State driver licensing agency”. b. Amend paragraph (b)(4) by replacing the phrase “response of each State agency” with the phrase “motor vehicle record received from each State driver licensing agency”. c. Amend paragraph (d)(1) by replacing the phrase “response of each State agency” with the phrase “motor vehicle record received from each State driver licensing agency”; and d. Revise paragraphs (b)(7), (b)(8), (d)(4) and (d)(5) to read as follows: § 391.51 General requirements for driver qualification files.

(b)* * *

(7)The Medical Examiner's Certificate as required by § 391.43(g) or a legible copy of the certificate. Beginning [DATE 3 YEARS AFTER EFFECTIVE DATE OF A FINAL RULE], the motor carrier employer meets this requirement for drivers subject to this part who are required to have a commercial driver's license under part 383 of this chapter by including the CDLIS motor vehicle record defined at 49 CFR 384.105 and obtained from the current licensing State in the driver qualification file, if that record contains medical certification status information. If that driver obtained the medical certification based on having a medical variance, the motor carrier must also include a copy of the medical variance in the driver qualification file; and

(8)A Skill Performance Evaluation certificate obtained from a Field Administrator, Division Administrator, or State Director issued in accordance with § 391.49; or the Medical Exemption document, issued by a Federal medical program in accordance with part 381 of this chapter.

(d)* * *

(4)The Medical Examiner's Certificate as required by § 391.43(g) or a legible copy of the certificate, and any supporting medical variance; and

(5)A Skill Performance Evaluation Certificate issued in accordance with § 391.49; or the Medical Exemption document issued by a Federal medical program in accordance with part 381 of this chapter. Issued on: November 9, 2006. John H. Hill, Administrator. [FR Doc. E6-19246 Filed 11-15-06; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [I.D. 102006A] New England and Mid-Atlantic Fishery Management Councils; Public Hearings AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Rescheduling of a public hearing. SUMMARY: NOAA Fisheries Service and the Mid-Atlantic Fishery Management Council (MAFMC) have rescheduled a public hearing on a draft amendment that would establish standardized bycatch reporting methodology

(SBRM)for every fishery management plan (FMP). The New England and Mid-Atlantic Fishery Management Councils (Councils) previously announced public hearings and requested comment on the draft amendment (October 31, 2006). The New England Fishery Management Council's (NEFMC) hearing date is unchanged. DATES: The MAFMC's public hearing will be on December 13, 2006, in New York City, NY. The NEFMC's public hearing will be on November 14, 2006, in Gloucester, MA. Written comments must be received at the appropriate address, e-mail address, or fax number (see ADDRESSES ) by 5 p.m., local time, on December 29, 2006. ADDRESSES: NMFS and the Councils will accept comments at two public hearings. For specific locations, see SUPPLEMENTARY INFORMATION . You may submit comments on the draft amendment by any of the following methods: • E-mail: *SBRMcomment@noaa.gov* • Mail: Patricia A. Kurkul, Regional Administrator, NOAA Fisheries Service, Northeast Regional Office, 1 Blackburn Drive, Gloucester MA 01930. Mark the outside of the envelope: “Comments on SBRM Amendment.” • Fax:

(978)281-9135, Attention: Patricia A. Kurkul. Copies of the draft SBRM amendment and the public hearing document may be obtained by contacting the NMFS Northeast Regional Office at the above address. The documents are also available via the internet at: *http://www.nero.noaa.gov/nero/regs/com.html* . FOR FURTHER INFORMATION CONTACT: Michael Pentony, Senior Fishery Policy Analyst,

(978)281-6283. SUPPLEMENTARY INFORMATION: The initial notice of the public hearings by both Councils was published in the **Federal Register** on October 31, 2006, (71 FR 63749). The New York City hearing has been moved one day to relieve a scheduling conflict. Meeting Dates, Times, and Locations The public hearings have been scheduled to coincide with the date and location of New England and Mid-Atlantic Fishery Management Council meetings. Tuesday, November 14, 2006, at 5:30 p.m. - Tavern on the Harbor, 30 Western Ave., Gloucester, MA 01930, telephone:

(978)283-4200. Wednesday, December 13, 2006, at 7 p.m. - Skyline Hotel, 725 10th Ave, New York, NY 10019, telephone:

(212)586-3400. Special Accommodations These hearings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids at the Gloucester, MA, meeting should be directed to Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. Requests for such services at the New York, NY, meeting should be directed to M. Jan Saunders,

(302)674 2331 extension 18. Requests for accessibility accommodations must be received at least at least 5 days prior to the meeting dates. Authority: 16 U.S.C. 1801 *et seq.* Dated: November 09, 2006. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E6-19398 Filed 11-15-06; 8:45 am] BILLING CODE 3510-22-S 71 221 Thursday, November 16, 2006 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket No. DA-07-02] Milk in the Northeast and Other Marketing Areas; Notice of Intent To Hold Public Information Session Prior to Hearing AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice; notice of intent to hold public information session prior to hearing. SUMMARY: This notice announces a public information session to be held addressing proposals received to amend the Federal order Class III and Class IV product price formulas. The purpose of the pre-hearing information session is for interested parties to learn about the intent of proposals that have been submitted to amend Class III and Class IV product price formulas and how the proposals would accomplish that intent. The session is intended to clarify the intent and effect of proposed amendments. The session will enable proponents to better prepare testimony and evidence in support of, or in opposition to, proposals that may be included in the Hearing Notice announcing the Class III/IV hearing. DATES: The session will begin at 8:30 a.m. on December 5, 2006. ADDRESSES: The information session will be held in the USDA Whitten Building, 1400 Independence Avenue, SW., Room 107-A, Washington, DC 20250. FOR FURTHER INFORMATION CONTACT: Gino Tosi, Associate Deputy Administrator, USDA/AMS/Dairy Programs, Order Formulation and Enforcement Branch, Stop 0231-Room 2971, 1400 Independence Avenue, SW., Washington, DC 20250-0231,

(202)720-7182, e-mail address: *gino.tosi@usda.gov* . SUPPLEMENTARY INFORMATION: The N *otice of Intent to Reconvene National Hearing* published in the **Federal Register** on June 28, 2006 (FR 71 36715) solicited proposals regarding product price formulas that establish Federal order Class III and Class IV prices. Proposals were due on or before September 30, 2006. The Department recognizes the importance of Class III and IV product pricing formulas and is hosting a public information session to ensure that all proposals received are fully understood. Participation in the information session is strongly encouraged by all parties who have submitted proposals. Submitted proposals and information regarding the purpose and procedure of the information session are available through all Market Administrator offices and Dairy Programs Web site at *http://www.ams.usda.gov/dairy* . The Department will issue a hearing notice announcing the date, location and the proposals to be considered at the hearing. Dated: November 9, 2006. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E6-19316 Filed 11-15-06; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF COMMERCE International Trade Administration A-570-875 Non-Malleable Cast Iron Pipe Fittings from the People's Republic of China: Extension of Time Limit for the Final Results of the Antidumping Duty Administrative Review for the Period April 1, 2004 through March 31, 2005 AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: November 16, 2006. FOR FURTHER INFORMATION CONTACT: Eugene Degnan, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:

(202)482-0414. SUPPLEMENTARY INFORMATION: Background On May 25, 2006, the Department of Commerce (“the Department”) published in the **Federal Register** its preliminary results of the second administrative review on non-malleable cast iron pipe fittings from the People's Republic of China (“PRC”). *See Non-Malleable Cast Iron Pipe Fittings from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review* , 71 FR 30116 (May 25, 2006) (“ *Preliminary Results* ”). On September 12, 2006, the Department published a notice extending the time limit for the final results of the administrative review from September 22, 2006, to October 23, 2006. *See Extension of Time Limit for the Final Results of the Antidumping Duty Administrative Review: Non-Malleable Cast Iron Pipe Fittings from the People's Republic of China* , 71 FR 53661 (September 12, 2006). On October 30, 2006, the Department published a notice extending the time limit for the final results of the administrative review from October 23, 2006, to November 10, 2006. *See Non-Malleable Cast Iron Pipe Fittings from the People's Republic of China: Extension of Time Limit for the Final Results of the Antidumping Duty Administrative Review:* , 71 FR 63285 (October 30, 2006). The final results of this administrative review are currently due no later than November 10, 2006. Extension of Time Limit of Final Results Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue final results within 120 days of the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the 120-day period to a maximum of 180 days. Completion of the final results of this review within the 120-day period is not practicable because the Department needs additional time to evaluate the arguments and issues raised by the petitioners and respondents in their respective case briefs and rebuttal briefs. Because it is not practicable to complete this review within the time specified under the Act, we are extending the time period for issuing the final results of this review an additional 11 days to 180 days, in accordance with section 751(a)(3)(A) of the Act. Therefore, the final results will be due no later than November 21, 2006. This notice is published pursuant to sections 751(a) and 777(i) of the Act. Dated: November 8, 2006. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E6-19402 Filed 11-15-06; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration A-570-601 Notice of Extension of Final Results of the 2004-2005 Administrative Review of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: November 16, 2006. FOR FURTHER INFORMATION CONTACT: Eugene Degnan or Robert Bolling, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone:

(202)482-0414 and

(202)482-3434, respectively. SUPPLEMENTARY INFORMATION: Background On July 14, 2006, the Department published its preliminary results. *See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China: Preliminary Results of 2003-2004 Antidumping Administrative Review, and Notice of Intent to Rescind in Part* , 71 FR 40069 (July 14, 2006) (“ *Preliminary Results* ”). In the *Preliminary Results* we stated that we would make our final determination for the antidumping duty review no later than 120 days after the date of publication of the preliminary results ( *i.e.* , November 11, 2006). Extension of Time Limit for Final Results Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department of Commerce (“the Department”) to issue the final results in an administrative review within 120 days of publication date of the preliminary results. However, if it is not practicable to complete the review within this time period, the Department may extend the time limit for the final results to 180 days. Completion of the final results within the 120-day period is not practicable because this review involves certain complex issues, such as a tariff classification and surrogate financial ratios that both Petitioner and respondent addressed in their briefs. Therefore, in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2), the Department is partially extending the time period for issuing these final results of review by 30 days until December 11, 2006. Dated: November 7, 2006. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E6-19403 Filed 11-15-06; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration Environmental Technologies Trade Advisory Committee (ETTAC), Request for Nominations AGENCY: International Trade Administration, Trade Development, Commerce. ACTION: Notice. SUMMARY: The Environmental Technologies Trade Advisory Committee (ETTAC) was established pursuant to provisions under Title IV of the Jobs Through Trade Expansion Act, 22. U.S.C. 2151, and under the Federal Advisory Committee Act, 5 U.S.C. App. 2. ETTAC was first chartered on May 31, 1994. ETTAC serves as an advisory body to the Environmental Trade Working Group of the Trade Promotion Coordinating Committee (TPCC), reporting directly to the Secretary of Commerce in his capacity as Chairman of the TPCC. ETTAC advises on the development and administration of policies and programs to expand United States exports of environmental technologies, goods, and services and products that comply with United States environmental, safety, and related requirements. Membership in a committee operating under the Federal Advisory Committee Act must be balanced in terms of economic subsector, geographic location, and company size. Committee members serve in a representative capacity, and must be able to generally represent the views and interests of a certain subsector of the U.S. environmental industry. We are seeking senior executive-level company or environmental technologies association candidates. Members of the ETTAC have experience in exporting the full range of environmental technologies products and services including:

(1)Air Pollution Control/Monitoring Equipment;

(2)Analytic Services;

(3)Environmental Energy Sources;

(4)Environmental Engineering and Consulting Services;

(5)Financial Services;

(6)Process and Prevention Technologies;

(7)Solid and Hazardous Waste Equipment and Management;

(8)Water and Wastewater Equipment and Services. The Secretary of Commerce invites nominations to ETTAC of U.S. citizens who will represent U.S. environmental goods and services companies that trade internationally, or trade associations whose members include U.S. companies that trade internationally. Companies must be at least 51 percent beneficially-owned by U.S. persons. U.S.-based subsidiaries of foreign companies in general do not qualify for representation on the committee. Nominees will be considered based upon their ability to carry out the goals of ETTAC's enabling legislation as further articulated in its charter. ETTAC's Charter is available on the internet at *http://www.environment.ita.doc.gov.* Priority will be given to a balanced representation in terms of point of view represented by various sectors, product lines, firm sizes, and geographic areas. Appointments are made without regard to political affiliation. Nominees must be U.S. citizens, representing U.S. environmental goods and services firms that trade internationally or provide services in direct support of the international trading activities of other entities. Self-nominations are accepted. If you are interested in nominating someone to become a member of ETTAC, please provide the following information (2 pages maximum):

(1)Name;

(2)Title;

(3)Work phone; fax; and, email address;

(4)Company or trade association name and address including Web site address;

(5)Short bio of nominee including credentials;

(6)Brief description of the company or trade association and its business activities; company size (number of employees and annual sales); and export markets served. Please, do not send company or trade association brochures or any other information. This information may be e-mailed to *ellen.bohon@mail.doc.gov* , or faxed to the attention of Ellen Bohon at 202-482-5665, and must be received before the deadline. Nominees selected to ETTAC will be notified. *Deadline:* This request will be open until November 24, 2006, from the date of publication in the **Federal Register** . FOR FURTHER INFORMATION CONTACT: Ellen Bohon, Office of Environmental Technologies Industries, Room 4053, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; phone 202-482-0359; fax 202-482-5665; e-mail *Ellen.Bohon@mail.doc.gov.* Dated: November 9, 2006. Joseph O. Neuhoff, III, Director, Office of Energy and Environmental Industries. [FR Doc. E6-19309 Filed 11-15-06; 8:45 am] BILLING CODE 3510-DR-P DEPARTMENT OF COMMERCE (C-580-851) Dynamic Random Access Memory Semiconductors from the Republic of Korea: Extension of Time Limit for Final Results of Countervailing Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: November 16, 2006. FOR FURTHER INFORMATION CONTACT: Andrew McAllister at

(202)482-1174 or Julie Santoboni at

(202)482-4194; AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. SUPPLEMENTARY INFORMATION: Background On September 28, 2005, the Department of Commerce (the Department) published a notice of initiation of administrative review of the countervailing duty order on dynamic random access memory semiconductors (DRAMs) from the Republic of Korea, covering the period January 1, 2004 through December 31, 2004. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part* , 70 FR 56631. On January 12, 2006, the petitioner, Micron Technology, Inc., alleged that the respondent, Hynix Semiconductor, Inc., received new subsidies. The Department published the preliminary results of this administrative review on August 11, 2006. *See Dynamic Random Access Memory Semiconductors from the Republic of Korea: Preliminary Results of Countervailing Duty Administrative Review* , 71 FR 46192. Statutory Time Limits Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested and the final results of review within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within the time period, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days, respectively. Extension of Time Limits for Final Results This administrative review is extraordinarily complicated due to the complexity of the countervailable subsidy practices alleged in the new subsidy allegations. Because the Department requires additional time to review and analyze arguments raised by interested parties in their case and rebuttal briefs, it is not practicable to complete this review by the original deadline of December 9, 2006. Therefore, the Department is extending the time limit for completion of the final results to not later than February 7, 2007, in accordance with section 751(a)(3)(A) of the Act. We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: November 8, 2006. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E6-19401 Filed 11-15-06; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 101706B] Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper and Grouper Off the Southern Atlantic States AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of receipt of an application for an exempted fishing permit; request for comments. SUMMARY: NMFS announces the receipt of an application for an exempted fishing permit

(EFP)from the Gulf and South Atlantic Fisheries Foundation, Inc. If granted, the EFP would authorize the applicants, with certain conditions, to collect limited numbers of undersized and out-of-season snapper and grouper in South Atlantic Federal waters. This study is intended to characterize catch and discard mortality within the South Atlantic commercial hook and line snapper-grouper fishery. DATES: Comments must be received no later than 5 p.m., eastern time, on December 18, 2006. ADDRESSES: You may submit comments on the application by any of the following methods: • E-mail: *Steve.Branstetter@noaa.gov* . Include in the subject line of the e-mail comment the following document identifier: “FND_EFP”. • Mail: Steve Branstetter, Southeast Regional Office, NMFS, 263 13 th Avenue South, St. Petersburg, FL 33701. • Fax: 727-824-5308. The application and related documents are available for review upon written request to any of the above addresses. FOR FURTHER INFORMATION CONTACT: Steve Branstetter, 727-824-5305; fax: 727-824-5308; e-mail: *Steve.Branstetter@noaa.gov* . SUPPLEMENTARY INFORMATION: The EFP is requested under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 *et seq.* ), and regulations at 50 CFR 600.745(b) concerning exempted fishing. The described research is part of a Cooperative Research Program Grant (Cooperative Agreement No. NA06NMF4540059). The Cooperative Research Program is a means of involving commercial and/or recreational fishermen in the collection of fundamental fisheries information. Resource collection efforts support the development and evaluation of fisheries management and regulatory options. The proposed collection for scientific research involves activities otherwise prohibited by regulations implementing the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region. The applicants require authorization to harvest and possess undersized and out-of-season snapper and grouper for scientific research activities during the period from November 1, 2006, through May 31, 2008. Specimens would be collected from Federal waters off the east coast of Florida and Federal waters off the coasts of Georgia, South Carolina, and North Carolina. Sampling would occur during normal fishing operations of the commercial snapper-grouper vertical hook-and-line fishery. Sampling would occur year-round, collecting up to 500 fish during the course of the sampling. Data collections for this study would support improved information about the catch, bycatch, discards, and discard mortality for species in the snapper-grouper complex. These data would provide insight on a stock's resilience to fishing, and would help refine estimates of long-term biological productivity of the stocks. Currently, these data are unavailable, and it is anticipated project results would yield valuable data within this fishery. NMFS finds this application warrants further consideration. Based on a preliminary review, NMFS intends to issue an EFP. Possible conditions the agency may impose on this permit, if it is indeed granted, include but are not limited to, a prohibition of conducting research within marine protected areas, marine sanctuaries, or special management zones, without additional authorization. Additionally, NMFS may prohibit the possession of Nassau or goliath grouper, and require any sea turtles taken incidentally during the course of fishing or scientific research activities to be handled with due care to prevent injury to live specimens, observed for activity, and returned to the water. A final decision on issuance of the EFP will depend on a NMFS review of public comments received on the application, consultations with the affected states, the South Atlantic Fishery Management Council, and the U.S. Coast Guard, and a determination that it is consistent with all applicable laws. Authority: 16 U.S.C. 1801 *et seq.* Dated: November 9, 2006. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E6-19394 Filed 11-15-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF DEFENSE Office of the Secretary Revised Non-Foreign Overseas Per Diem Rates. AGENCY: Per Diem, Travel and Transportation Allowance Committee, DoD. ACTION: Notice of revised non-foreign overseas per diem rates. SUMMARY: The Per Diem, Travel and Transportation Allowance Committee is publishing Civilian Personnel Per Diem Bulletin Number 250. This bulletin lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States. AEA changes announced in Bulletin Number 194 remain in effect. Bulletin Number 250 is being published in the **Federal Register** to assure that travelers are paid per diem at the most current rates. DATES: *Effective Date:* December 1, 2006. SUPPLEMENTARY INFORMATION: This document gives notice of revisions in per diem rates prescribed by the Per Diem Travel and Transportation Allowance Committee for non-foreign areas outside the continental United States. It supersedes Civilian Personnel Per Diem Bulletin Number 249. Distribution of Civilian Personnel Per Diem Bulletins by mail was discontinued. Per Diem Bulletins published periodically in the **Federal Register** now constitute the only notification of revisions in per diem rates to agencies and establishments outside the Department of Defense. For more information or questions about per diem rates, please contact your local travel office. The text of the Bulletin follows: Dated: November 9, 2006. C.R. Choate, Alternate OSD Federal Register Liaison Officer, Department of Defense. BILLING CODE 5001-06-M EN16NO06.002 EN16NO06.003 EN16NO06.004 EN16NO06.005 [FR Doc. 06-9222 Filed 11-15-06; 8:45 am]

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