issue-1997-05-28•Federal Register proposed rules — 1997-05-28
Federal Register proposed rules — 1997-05-28
issue-1997-05-28Federal Register proposed rules — 1997-05-28Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 97-13953 Proposed Final Policy on Part 150 Approval and Funding of Noise Mitigation Measures
[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28816-28822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13953]
[[Page 28816]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 150
[Docket No. 28149]
Proposed Final Policy on Part 150 Approval and Funding of Noise
Mitigation Measures
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed final policy on part 150 approval and
funding of Noise Mitigation Measures, and request for supplemental
comment on its Impacts on Passenger Facility Charges.
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SUMMARY: The Federal Aviation Administration (FAA) has prepared for
issuance a final policy concerning approval and eligibility for Federal
funding of certain noise mitigation measures. This policy would
increase the incentives for airport operators to prevent the
development of new noncompatible land uses around airports and assure
the most cost-effective use of Federal funds spent on noise mitigation
measures. This would include certain limitations on the eligibility of
airport improvement program (AIP) funds and passenger facility charges
(PFC). The proposed policy was published in the Federal Register on
March 20, 1995 (60 FR 14701), and public comments were received and
considered. This document sets forth the revised policy as proposed for
issuance. However, prior to the issuance of the policy the FAA is
requesting supplemental comment on the impact of its limitations on PFC
eligibility. The FAA will consider any comments on PFC eligibility thus
received and revise the policy as may be appropriate prior to issuing
the final policy. All other issues are considered to have been
adequately covered during the original comment period.
Accordingly and after any revisions resulting from supplemental
comments received on the impacts on PFC eligibility, as of January 1,
1998, the FAA will approve under 14 CFR part 150 (part 150) only
remedial noise mitigation measures for existing noncompatible
development and only preventive noise mitigation measures in areas of
potential new noncompatible development. The FAA will not approve
remedial noise mitigation measures for new noncompatible development
that is allowed to occur in the vicinity of airports after the
effective date of this final policy. As of the same effective date,
eligibility for Airport Improvement Program (AIP) funding under the
noise set-aside will be determined using criteria consistent with this
policy. Specifically, remedial noise mitigation measures for new
noncompatible development that occurs after the effective date of this
final policy will not be eligible for AIP funding under the noise set-
aside, regardless of previous FAA approvals under part 150, the status
of implementation of an individual airport's part 150 program, or the
status of any pending application for AIP funds. This policy also
applies to projects that are eligible for noise set-aside funds without
a part 150 program. This change in AIP eligibility will change in a
similar way the eligibility of noise projects for passenger facility
charge (PFC) funding. That is, the FAA will not approve the use of PFC
funds to remediate noise impacts for new noncompatible development that
occurs after the effective date of this policy.
DATES: Comments are due on or before June 27, 1997. This policy will be
effective January 1, 1998.
FOR FURTHER INFORMATION CONTACT: Mr. William W. Albee, Policy and
Regulatory Division (AEE-300), Office of Environment and Energy, FAA,
800 Independence Avenue, SW., Washington, DC 20591; telephone (202)
267-3553, facsimile (202) 267-5594; Internet: WA[email protected];
or Mr. Ellis Ohnstad, Manager, Airports Financial Assistance Division
(APP-500), Office of Airport Planning and Programming, FAA, 800
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
3831, facsimile (202) 267-5302.
SUPPLEMENTARY INFORMATION:
Background
The Airport Noise Compatibility Planning Program (14 CFR part 150,
hereinafter referred to as part 150 or the part 150 program) was
established under the Aviation Safety and Noise Abatement Act of 1979
(49 U.S.C. 47501 through 47509, hereinafter referred to as ASNA). The
part 150 program allows airport operators to submit noise exposure maps
and noise compatibility programs to the FAA voluntarily. According to
the ASNA, a noise compatibility program sets forth the measures that an
airport operator has taken or has proposed for the reduction of
existing noncompatible land uses and the prevention of additional
noncompatible land uses within the area covered by noise exposure maps.
The ASNA embodies strong concepts of local initiative and
flexibility. The submission of noise exposure maps and noise
compatibility programs is left to the discretion of local airport
operators. Airport operators may also choose to submit noise exposure
maps without preparing and submitting a noise compatibility program.
The types of measures that airport operators may include in a noise
compatibility program are not limited by the ASNA, allowing airport
operators substantial latitude to submit a broad array of measures--
including innovative measures--that respond to local needs and
circumstances.
The criteria for approval or disapproval of measures submitted in a
part 150 program are set forth in the ASNA. The ASNA directs the
Federal approval of a noise compatibility program, except for measures
relating to flight procedures: (1) If the program measures do not
create an undue burden on interstate or foreign commerce; (2) if the
program measures are reasonably consistent with the goal of reducing
existing noncompatible land uses and preventing the introduction of
additional noncompatible land uses; and (3) if the program provides for
its revision if necessitated by the submission of a revised noise
exposure map. Failure to approve or disapprove a noise compatibility
program within 180 days, except for measure relating to flight
procedures, is deemed to be an approval under the ASNA. Finally, the
ASNA sets forth broad eligibility criteria, consistent with the ASNA's
overall deference to local initiative and flexibility.
The FAA is authorized, but not obligated, to fund projects via the
Airport Improvement Program (AIP) to carry out measures in a noise
compatibility program that are not disapproved by the FAA. Projects
that are eligible for AIP funding are also eligible to be funded with
local PFC revenue upon the FAA's approval of an application filed by a
public agency that owns or operates a commercial service airport. The
use of PFC revenue for such projects does not require an approved noise
compatibility program under part 150.
In establishing the airport noise compatibility planning program,
which became embodied in FAR part 150, the ASNA did not change the
legal authority of state and local governments to control the uses of
land within their jurisdictions. Public controls on the use of land are
commonly exercised by zoning. Zoning is a power reserved to the states
under the U.S. Constitution. It is an exercise of the police powers of
the states that designates the uses permitted on each parcel of land.
This power is usually delegated in state enabling legislation to local
levels of government.
[[Page 28817]]
Many local land use control authorities (cities, counties, etc.)
have not adopted zoning ordinances or other controls to prevent
noncompatible development (primarily residential) within the noise
impact area of airports. An airport's noise impact area, identified
within noise contours on a noise exposure map, may extend over a number
of different local jurisdictions that individually control land uses.
For example, at five airports recently studied, noise contours overlaid
portions of 2 to 25 different jurisdictions.
While airport operators have included measures in noise
compatibility programs submitted under part 150 to prevent the
development of new noncompatible land uses through zoning and other
controls under the authorities of appropriate local jurisdictions,
success in implementing these measures has been mixed. A study
performed under contract to the FAA, completed in January 1994,
evaluated 16 airports having approved part 150 programs for the
implementation of land use control measures. This study found that of
the 16 airports, 6 locations had implemented the recommended zoning
measures, 7 locations had not implemented the recommended zoning
measures, and 3 were in the process of implementation.
Another independent study evaluated 10 airports that have FAA
approved part 150 programs in place and found that 4 locations had
prevented new noncompatible development and 6 locations had not
prevented such new development. At the letter 6 locations, the study
reported that 26 nonairport sponsor jurisdictions had approved new
noncompatible development and 28 nonairport sponsor jurisdictions and 1
airport sponsor jurisdiction had vacant land that is zoned to allow
future noncompatible development.
The independent study identified the primary problem of allowing
new noncompatible land uses near airports to be in jurisdiction that
are different from the airport sponsor's jurisdiction. This is
consistent with observations by the FAA and with a previous General
Accounting Office report which observed that the ability of airport
operators to solve their noise problems is limited by their lack of
control over the land surrounding the airports and the operators's
dependence on local communities and states to cooperate in implementing
land use control measures, such as zoning for compatible uses.
The FAA's January 1994 study explored factors that contribute to
the failure to implement land use controls for noise purposes. A major
factor is the multiplicity of jurisdictions with land use control
authority within airport noise impact areas. The greater the number of
different jurisdictions, the greater the probability that at least some
of them will not implement controls. Some jurisdictions have not
developed cooperative relationships with the airport operator, which
impedes appropriate land use compatibility planning. Some jurisdictions
are not aware of the effects of aircraft noise and of the desirability
of land use controls. This appears to be caused by a lack of ongoing
education and communication between the airport and the jurisdictions,
and to be worsened by lack of continuity in local government.
Some jurisdictions do not perceive land use controls as a priority
because the amount of vacant land available for noncompatible
development within the airport noise impact area is small, perhaps
constituting only minor development on dispersed vacant lots, or
because the current demand for residential construction near the
airport is low to nonexistent. In such areas, land use control changes
are not considered to have the ability to change substantially the
number of residents affected by noise. Jurisdictions may also give
noise a low priority compared to the economic advantages of developing
more residential land or the need for additional housing stock within a
community. A zoning change from residential to industrial or commercial
may not make economic sense if little demand exists for this type of
development. Therefore, a zoning change is viewed as limiting
development opportunities and dimishing the opportunities for tax
revenues.
In some cases, zoning for compatible land use has meet with
organized public opposition by property owners arguing that the
proposed zoning is a threat to private property rights, and that they
deserve monetary compensation for any potential property devaluation.
Further, basis zoning doctrine demands that the individual and parcels
be left with viable economic value, i.e., be zoned for a use for which
here is reasonable demand and economic return. Otherwise, the courts
may determine a zoning change for compatibility to be a ``taking'' of
private property for public use under the Fifth Amendment to the U.S.
Constitution, requiring just compensation.
One or more of the factors hindering effective land use controls
may be sufficient importance to preclude some jurisdictions from
following through on the land use recommendations of an airport's part
150 noise compatibility program. When either an airport sponsor's or a
nonairport sponsor's jurisdiction allows additional noncompatible
development within the airport's noise impact area, it can result in
noise problems for the people who move into the area. This can, in
turn, result in noise problems for the airport operator in the form of
inverse condemnation or noise nuisance lawsuits, public opposition to
the expansion of the airport's capacity, and local political pressure
for airport operational and capacity limitations to reduce noise. Some
airport operators have taken the position that they will not provide
any financial assistance to mitigate aviation noise for new
noncompatible development. Other airport operators have determined that
it is a practical necessity for them to include at least some new
residential areas within their noise assistance programs to mitigate
noise impacts that they were unable to prevent in the first place--
particularly if they have airport expansion plans. Over a relatively
short period of time, the distinctions blur between what is ``new'' and
what is ``existing'' residential development with respect to airport
noise issues.
Airport operators currently may include new noncompatible land
uses, as well as existing noncompatible land uses, within their part
150 noise compatibility programs and recommend that remedial noise
mitigation measures--usually either property acquisition or noise
insulation--be applied to both situations. These measures have been
considered to qualify for approval by the FAA under 49 USC 47504 and 14
CFR part 150. The part 150 approval enables noise mitigation measures
to be eligible for Federal funding, although it does not guarantee that
Federal funds will be provided.
Similar remedial measures are eligible to be funded with PFC
revenue collected by public agencies pursuant to the provisions of 49
USC 40117 and 14 CFR part 158. Project eligibility for PFC use is
established by the eligibility of such a project under the AIP. While
approval by the FAA for a public agency to use PFC revenue for noise
mitigation purposes does not require an approval part 150 noise
compatibility program, the public agency must demonstrate the existence
of noncompatible land uses around the airport and the efficacy of the
proposed noise project.
The Change in FAA Policy
Beginning January 1, 1998, the FAA will approve under part 150 only
remedial noise mitigation measures for
[[Page 28818]]
existing noncompatible development and only preventive noise mitigation
measures in areas of potential new noncompatiable development and only
preventive noise mitigation measures in areas of potential new
noncompatible development. As of the same date, criteria for
determining AIP eligibility under the noise set-aside and the use of
PFC revenue that are consistent with this policy will be applied by the
FAA. Specifically, after the effective date of this final policy,
remedial noise mitigation measures for new noncompatible development
that occurs from that date forward will not be eligible for AIP funding
under the noise set-aside, regardless of previous FAA approvals under
part 150, the status of implementation of an individual airport's part
150 program, or the status of any pending application for AIP funds.
This policy also applies to projects that are eligible for the noise
set-aside without a part 150 program pursuant to 49 U.S.C. 4704(c).
Additionally, because a project must be eligible under the AIP to be
eligible for PFC funds, this policy will affect the eligibility of
noise mitigation measures for PFC funding. Consequently, after the
effective date of this final policy, the FAA will not approve the use
of PFC funds to implement remedial noise mitigation measures for new
noncompatible development that occurs from that date forward.
Additional Comment Period for Effects on PFC Eligibility
This final policy explicitly includes passenger facility charges
(PFC) within the prohibition of funding for remedial noise measures for
new noncompatible development. However, the proposed policy that was
published in the Federal Register and made available for public comment
was more generic in its discussion of funding and did not specifically
cite PFC eligibility. The public comments on funding that were received
focused almost exclusively on Airport Improvement Program (AIP)
funding. The policy's impact on PFC eligibility is identical to its
impacts on AIP eligibility. Accordingly, a docket is open for a period
of 30 days after the date of publication of this proposed final policy
for public comment upon those issues related to the policy's impacts
upon PFC eligibility. All other issues are considered to have been
adequately covered during the original comment period. After
consideration of any public comments thus received, the FAA may further
refine the policy by revising portions of the policy related to PFC
eligibility. Inasmuch as the FAA anticipates that any such revisions
may be incorporated and the final policy issued within a reasonably
short time, the effective date of this policy will be January 1, 1998.
Discussion
The continuing development of noncompatible land uses around
airports is not a new problem. The FAA, airport operators, and the
aviation community as a whole have for some years expended a great deal
of effort to deal with the noise problems that are precipitated by such
development.
With respect to the part 150 program and Airport Improvement
Program (AIP) noise grants, the FAA considered in the 1989-1990
timeframe whether to disallow Federal assistance for new noncompatible
development (note that these deliberations occurred prior to the advent
of the PFC program). The choice posed at that time was either (1) allow
Federal funding for airport operator recommendations in part 150
programs that included new noncompatible land uses within the
parameters of noise mitigation measures targeted for financial
assistance from the airport (e.g., acquisition, noise insulation), or
(2) disallow all Federal funding for new noncompatible development that
local jurisdictions fail to control through zoning or other land use
controls. No other alternatives were considered.
The FAA selected the first option--to continue to allow Federal
funds to be used to mitigate new noncompatible development as well as
existing noncompatible development if the airport operator so chose.
Several factors supported this decision. One factor was lack of
authority by airport operators to prevent new noncompatible development
in nonairport sponsor jurisdictions, although airport sponsors bear the
brunt of noise lawsuits. Intense local opposition to an airport can be
detrimental to its capacity, especially if any expansion of airport
facilities is needed. The FAA also considered the plight of local
citizens living with a noise impact that they may not have fully
understood at the time of home purchase. Land use noise mitigation
measures, funded by the airport either with or without Federal
assistance, may be the only practical tool an airport operator has to
mitigate noise impacts in a community. The FAA was hesitant to deny
airport operators and the affected public Federal help in this regard.
In addition, the FAA gave deference to the local initiative, the
flexibility, and the broad eligibility for project funding under the
ASNA.
Since this review in 1989-1990, the FAA has given extensive
additional consideration to the subject of noncompatible land uses
around airports. The change in FAA policy presented here involves a
more measured and multifaceted approach than the proposal considered in
1989-1990.
A primary criterion in the ASNA for the FAA's approval of measures
in an airport's part 150 noise compatibility program is that the
measures must be reasonably consistent with obtaining the goal of
reducing existing noncompatible land uses and preventing the
introduction of additional noncompatible land uses. Until now, the FAA
has applied this criterion as a whole when issuing determinations under
part 150; that is, if a measure either reduces or prevents
noncompatible development, no matter when that development occurs, it
may be approved as being reasonably consistent. No distinction has been
made by the FAA between remedial noise mitigation measures that reduce
noncompatible development and preventive noise mitigation measures that
prevent new noncompatible development. Airport operators may,
therefore, recommend and receive FAA approval under part 150 for
remedial acquisition or soundproofing of new residential development.
The FAA now believes that it would be more prudent to distinguish
between (1) noise mitigation measures that are reasonably consistent
with the goal of reducing existing noncompatible land uses (i.e.,
remedial measures) and (2) noise mitigation measures that are
reasonably consistent with the goal of preventing the introduction of
additional noncompatible land uses (i.e., preventive measures). Using
such a distinction, airport operators would need to identify clearly
within the area covered by noise exposure maps the location of existing
noncompatible land uses versus the location of potentially new
noncompatible land uses. Many airport operators currently record this
distinction in their noise exposure map submissions, when identifying
noncompatible land uses. Potentially new noncompatible land uses could
include (1) areas currently undergoing residential or other
noncompatible construction; (2) areas zoned for residential or other
noncompatible development where construction has not begun; and (3)
areas currently compatible but in danger of being developed
noncompatibly within the timeframe covered by the airport's noise
compatibility program.
The purpose of distinguishing between existing and potential new
noncompatible development is for airport operators to restrict their
[[Page 28819]]
consideration of remedial noise mitigation measures to existing
noncompatible development and to focus preventive noise mitigation
measures on potentially new noncompatible development. The most
commonly used remedial noise mitigation measures are land acquisition
and relocation, noise insulation, easement acquisition, purchase
assurance, and transaction assistance. The most commonly used
preventive noise mitigation measures are comprehensive planning,
zoning, subdivision regulations, easement acquisition restricting
noncompatible development, revised building codes for noise insulation,
and real estate disclosure. Acquisition of vacant land may also be a
preventive noise mitigation measure with supporting evidence in the
airport operator's part 150 submission that acquisition is necessary to
prevent new noncompatible development because noncompatible development
on the vacant land is highly likely and local land use controls will
not prevent such development. Often, combinations of these measures are
applied to ensure the maximum compatibility.
Under this final FAA policy, airport operators would not be limited
to applying the most commonly used noise mitigation measures in their
noise compatibility programs. Local flexibility to recommend other
measures, including innovative measures, under part 150 would be
retained. However, all noise mitigation measures applied to existing
noncompatible development must clearly be remedial and serve the goal
of reducing existing noncompatible land uses. Similarly, all noise
mitigation measures applied to potential new noncompatible development
must clearly be preventive and serve the goal of preventing the
introduction of additional noncompatible land uses.
Any future FAA determinations issued under part 150 will be
consistent under this policy. The FAA's approval of remedial noise
mitigation measures will be limited to existing noncompatible
development. The FAA's approval of preventive noise mitigation measures
will be applied to potential new noncompatible development. The FAA
recognizes that there will be gray areas which will have to be
addressed on a case-by-case basis within these policy guidelines. For
example, minor development on vacant lots within an existing
residential neighborhood, which clearly is not extensive new
noncompatible development, may for practical purposes need to be
treated with the same remedial measure applied to the rest of the
neighborhood. Another example would be a remedial situation in which
noise from an airport's operation has significantly increased,
resulting in new areas that were compatible with initial conditions
becoming noncompatible. Airport operators will be responsible for
making the case for exceptions to the policy guidelines in their part
150 submittals.
It should be noted that noise mitigation would continue to be
eligible for AIP and PFC funds if approved as mitigation measures in an
FAA environmental document for airport development project(s). This
final policy does not affect that eligibility.
Eligibility for Federal funding of noise projects through the noise
set-aside of the AIP will follow the same policy as the FAA's part 150
determinations--remedial projects for existing noncompatible
development and preventive projects for potential new noncompatible
development. The FAA will apply the same eligibility criteria to those
few types of noise projects, such as soundproofing of schools and
health care facilities, that are eligible for AIP funds under the noise
set-aside without an approved part 150 program. The change in AIP
eligibility will cause a like change in the eligibility of noise
projects for PFC funding.
The impact of revising the FAA's policy on part 150 determinations
and funding eligibility will be to preclude the use of the part 150
program and AIP or PFC funds to remediate new noncompatible development
within the noise contours of an airport after the effective date of
this final policy. By precluding this option while at the same time
emphasizing the array of preventive noise mitigation measures that may
be applied to potential new noncompatible development, the FAA seeks to
focus airport operators and local governments more clearly on using
these Federal programs to the maximum extent to prevent noncompatible
development around airports, rather than attempting to mitigate noise
in such development after the fact. The FAA has determined that such a
policy will better serve the public interest. Unlike the FAA's previous
consideration of this issue in 1989-1990, AIP and PFC funding may be
available to assist airport operators in dealing with new noncompatible
development that is not being successfully controlled by local
jurisdictions, so long as the airport's methods prevent the
noncompatible development rather than mitigating it after development
has occurred. This should be a more cost-effective use of available
funds since remedial noise mitigation measures generally cost more for
a given unit than preventive measures.
In selecting a date to implement this final policy, the FAA is
balancing a desire to implement a beneficial program change as rapidly
as possible with practical transition considerations of ongoing part
150 programs. One approach considered was to implement it on an
airport-by-airport basis, selecting either the date of the FAA's
acceptance of an airport's noise exposure maps or the date of the FAA's
approval of an airport's noise compatibility program under part 150.
This approach would have the advantage of directly typing this
policy to a point in time for which an airport operator has defined, in
a public process, the size of the airport's noise impact area and has
consulted with local jurisdictions on measures to reduce and prevent
noncompatible land uses. There are, however, disadvantages to this
approach. More than 200 airports have participated in the part 150
program, beginning in the early 1980's. Thus, selecting either the
noise exposure map's acceptance date or the noise compatibility
program's approval date for these airports, which includes the great
majority of commercial service airports with noise problems, would
entail either applying this final policy retroactively or applying it
prospectively at some future date as such airports update their maps
and programs.
The selection of an airport-by-airport retroactive date would have
required the FAA and airport operators to review previous part 150 maps
and programs, historically reconstructing which land use development
was ``existing'' at that time and which development is ``new'' since
then, potentially to withdraw previous FAA part 150 determinations
approving remedial measures for ``new'' development, and not issue new
AIP grants for any ``new'' development (which by 1997 may have already
been built and in place for a number of years and be regarded locally
as an integral part of the airport's mitigation program for existing
development). There was the further practical consideration of benefits
to be achieved. It may now be too late to apply preventive noise
mitigation measures to noncompatible land uses that have been developed
since an airport's noise exposure maps have been accepted or noise
compatibility program has been approved. If remedial noise mitigation
measures were now determined not to be applicable to such areas, the
areas would be left in limbo, having had no advance warning of a change
in Federal policy.
[[Page 28820]]
There would also be disadvantages to applying this final policy
prospectively on an airport-by-airport basis as an airport either
updates a previous part 150 program or completes a first-time part 150
submission. The major disadvantages would be in the timeliness of
implementing this final policy and the universality of its coverage.
Since part 150 is a voluntary program, airport operators may select
their timing of entry into the program and the timing of updates to
previous noise exposure maps and noise compatibility programs. The
result would be a patchwork implementation, with some airports
operating under the new policy regarding part 150 noise mitigation
measures and funding and other airports operating under the old policy
for an unspecified number of years. An unintended and counterproductive
side effect could be the postponement by some airports of updated noise
exposure maps and noise compatibility programs in order to maintain
Federal funding eligibility under the previous policy.
The FAA has determined that its preferred option is to select one
prospective date nationwide as the effective date for this final
policy, rather than to implement it based on an individual airport's
part 150 activities, either maps or program. A specific date will
ensure nationwide application on a uniform basis and provide a more
timely implementation than prospective airport-by-airport
implementation dates. A specific date will also eliminate any perceived
advantages in postponing new or updated part 150 programs. the FAA
considered two options with respect to the selection of a specific
date: (1) The date of issuance of a final policy following the
evaluation of comments received on its proposal or (2) a future date,
180 days to a year after publication of a final policy to allow
transition time for airport operators to accommodate previously
approved part 150 programs, recent part 150 submissions, or those
programs or submissions under development.
While the date of issuance of a final policy was considered to have
the advantage of timeliness, this was outweighed by the disadvantage of
too abrupt a transition from one policy to another without giving
airport operators and local communities a chance to react. The FAA
anticipated in its notice of this change in policy that there would be
a transition period from the date of issuance of a final policy of at
least 180 days to avoid disrupting airport operators' noise
compatibility programs that have already been submitted to the FAA and
are undergoing statutory review. The FAA also announced in its notice
that provision for this period plus an additional margin of time beyond
180 days would allow airport operators adequate opportunity to amend
previously completed noise compatibility programs or programs currently
underway, in consultation with local jurisdictions, to emphasize
preventive rather than remedial measures for new development.
Accordingly, the FAA sought comment on how long to extend a transition
period beyond the 180 days noted--to a possible maximum of 1 year from
the date of issuance of the final policy. In view of the extended time
period since publication of the original notice, plus the opportunity
for supplemental comment on the impacts of the policy on PFC
eligibility, the effective date of January 1, 1998, is considered to
more than fulfill the 1 year implementation timeframe that was proposed
in the original notice and should provide adequate time to revise or
update noise compatibility programs that are in preparation.
The potential future expenditure of AIP funds for projects to
remediate new noncompatible development during a transition period is
believed to be minimal, based upon the FAA's review of the sample of
airports included in the FAA's recent study and in an independent
study, as well as general program knowledge. Not all airports have a
problem of continuing uncontrolled noncompatible development within the
area covered by noise contours. Among those that do have a problem, few
of them offer to provide remedial financial assistance for the new
development, as shown in their part 150 submissions. Even in those
cases where financial assistance for remediation has been recommended
for new noncompatible development, it has generally been limited in
scope and identified as a lower priority than funding remediation for
existing noncompatible development. Further, funding for such new
noncompatible development tends to be anticipated only in the latter
years of an airport's part 150 program when it may not be needed
because of shrinking noise contours resulting from the national
transition to the use of Stage 3 aircraft.
Since part 150 is a voluntary program, each airport operator has
the discretion to make its own determinations regarding the impact of
this final policy on existing noise compatibility programs. If an
impact is found, each operator can determine whether to immediately
amend its program during the allowed transition period or to wait until
the program is otherwise updated. The FAA will not initiate withdrawals
of any previous part 150 program approvals based on this policy.
However, any remedial noise mitigation measures for noncompatible
development that is allowed to occur within the area of an airport's
noise exposure maps after the effective date of this final policy will
have to be funded locally, since the measures will not be eligible for
AIP assistance from the noise set-aside or for PFC funding. New part
150 approvals after the effective date of this final policy will
conform to this policy.
Discussion of Comments
On March 20, 1995, the FAA issued a notice of proposed policy (60
FR 14701), and solicited comments from the public on the proposed
policy change. The issues raised in the comments are summarized and
addressed below:
Twenty-one individuals and organizations submitted comments on the
proposal. Comments were submitted by airport operators, airport
associations, aviation associations, pilot associations, public
agencies, community civic organizations, and businesses and business
organizations. Of the 21 commenters, all but 8 commented favorably upon
the policy as proposed by the FAA. Those eight commenters expressed
preferences for three of the five alternatives upon which the FAA had
solicited comments: retain the existing policy (alternative Number 1),
retain the existing policy for airport operators that have taken
earnest but unsuccessful steps to prevent new noncompatible development
in jurisdictions outside their control (alternative Number 2), retain
the existing policy for noncompatible land uses within the DNL 65 dB
contour with an all Stage 3 fleet (alternative Number 3), retain
existing policy for part 150 approval, but eliminate Federal funding
eligibility for remedial measures for new noncompatible development
(alternative Number 4), and implement the proposed policy on a airport-
by-basis (alternative Number 5). Three of those commenters expressed a
preference for alternative Number 1; three preferred alternative Number
2; and two preferred alternative Number 4. A discussion of the issues
raised by the commenters follows. Comments were also requested on how
long a transition period beyond the 180 days to allow--to a possible
maximum 1 year total--from the date of issuance of the policy.
Discussion of the comments on the effective date of the policy and the
FAA's response follows the discussion of issues.
[[Page 28821]]
Issues
A review of the comments on the substance of the proposed policy
revealed six general issues or concerns. Each of those issues and the
FAA's response is presented below.
Issue: Airport expansion causing the noncompatibility: Four
commenters expressed concern that airport expansion which increased the
noise exposure of previously compatible development might become
ineligible for Federal noise mitigation funds.
FAA Response: The new policy will continue the eligibility of such
properties. From the discussion of the proposed policy (60 FR 14701,
March 20, 1995), ``The FAA recognizes that there will be gray areas
which will have to be addressed on a case-by-case basis within these
policy guidelines. (An) example would be a remedial situation in which
noise from an airport's operation has significantly increased,
resulting in new areas that were compatible with initial conditions
becoming noncompatible. Airport operators would be responsible for
making the case for exceptions to the policy guidelines in their part
150 submittals.''
It should be noted that noise mitigation would continue to be
eligible for AIP and PFC funds if approved as mitigation measures in an
FAA environmental document for airport development project(s). This
final policy does not affect that eligibility. Foresighted airport
planning, the programmed phase out of noisy Stage 2 transport type jet
airplanes and the subsequent shrinkage of noise contours for many
airports, plus aggressive noise compatibility planning and
implementation through effective local land use controls and building
codes, can and should largely preclude situations in which airport
expansion causes new noncompatible uses.
Issue: Compatible development on bypassed lots within existing
noise impacted neighborhoods: Several commenters expressed concern
about development of bypassed lots or additions to existing structures
within noise impacted neighborhoods.
FAA Response: Bypassed lots, e.g., vacant or in-fill lots and other
small parcels of vacant land within otherwise developed neighborhoods,
are usually unsuitable for development with uses significantly
different from that of their neighbors. It would be impractical, for
example, to require industrial or commercial development on a vacant
lot within an existing residential neighborhood. Any policy or land use
control that effectively prevents any economically viable development
of such properties raises the specter of public use of private property
without due compensation. The new policy will continue the eligibility
of such properties, although on a case-by-case basis. From the
discussion of the proposed policy (60 FR 14701, March 20, 1995), ``For
example, minor development on vacant lots within an existing
residential neighborhood, which is clearly not extensive new
noncompatible development, may for practical purposes need to be
treated with the same remedial measure applied to the rest of the
neighborhood.'' Also from that discussion, ``Airport operators would be
responsible for making the case for exceptions to the policy guidelines
in their part 150 submittals.'' In interpreting this, any such new
structures or additions to existing structures should have the
appropriate sound attenuation measures incorporated as an integral part
of their initial construction rather than planning to have them added
through a subsequent remedial soundproofing program. Those remedial
programs are designed to bring relief to preexisting structures.
Issue: School additions serving population growth in existing noise
impacted neighborhoods: One commenter asked for continued eligibility
for school additions necessary to serve rapidly growing school age
population within existing noise impacted neighborhoods.
FAA Response: Generally, when a school addition or other community
facility is necessary to serve the local neighborhood and relocation
outside the noise impact area is impractical, it should remain eligible
for Federal funding assistance for the additional cost of including the
appropriate sound attenuation in its initial construction. Eligibility
for remedial noise mitigation measures for additions to existing noise
impacted schools or neighborhood service facilities required by
demographic changes within their service areas will be considered by
the FAA on a case-by-case basis.
Issue: Proposed Policy will be more costly and weakens the position
of the airport operator: One or more commenters felt that the proposed
policy is less preferable than the present policy and may be more
costly since it encourages airport operators to acquire land or rights
in land in lieu of negotiations with neighboring communities. Concern
was expressed that it also removes an important negotiating tool--that
of Federal matching grants to mitigate the noise in neighboring
jurisdictions.
FAA Response: Purchase of noise impacted lands by the airport
without their use for an airport purpose, or their lease or resale for
an airport compatible use, is costly both in terms of the acquisition
costs and of the extended costs of maintenance and loss of tax base.
The proposed policy is, in part, designed to give airport operators who
do not exercise land use control jurisdiction an incentive to press
responsible officials into action and to engage in more vigorous
negotiations with land use control jurisdictions that have land
impacted by the airport's noise, but do not have proprietary interest
in the airport. The policy does so by assuring both airport sponsors
and local land use control jurisdictions that no AIP of PFC funds will
be available to mitigate the airport's noise impacts upon the
noncompatible uses that they permit to be developed in the face of and
in full knowledge of the airport's noise.
Issue: Conflicts with state noise compatibility programs: One
commenter expressed concern that the proposed change was not compatible
with its existing state noise compatibility laws.
FAA Response: The state cited, California, has been a leader in the
airport noise compatibility effort and has noise standards in place
that require airport operators to bring noncompatible land uses into
compliance with those standards. However, the airport operator has no
direct control to prevent the introduction of new noncompatible uses.
The new policy is not intended to work counter to such positive noise
compatibility efforts, it is intended to reinforce such efforts. Where
noncompatible uses existed prior to the effective date of this policy,
they are still eligible for AIP or PFC assistance for remedial noise
compatibility measures. The new policy is designed to provide the
airport operator with additional leverage to discourage the
introduction of new noncompatible uses.
Issue: Sharing of responsibilities: One commenter suggested that
the language of the original notice tended to suggest that local
communities that are not the airport's sponsors might not be
predisposed to act in a fully responsible manner to carry through with
noise compatibility programs.
FAA Response: This was certainly not the intent of the notice, nor
is that the FAA's perspective. The FAA recognizes that by and large
most communities act, within their means, in a quite responsible manner
vis-a-vis airport noise compatibility. However, we also recognize that
such communities may be under locally significant economic
[[Page 28822]]
and political pressures to allow noncompatible development. It is the
FAA's view that the active cooperation and coherent efforts of all
parties involved are required to successfully plan and implement an
airport noise compatibility program that meets the community's
economic, political, and aviation needs. That is a central goal of the
part 150 program and the rationale for its extensive consultation and
community involvement elements.
Effective date of the policy
Several commenters made recommendations on dates for the provisions
of the policy to become effective after its publication in the Federal
Register. Their recommended dates ranged from ``as soon as possible,''
to 90 days, to ``no earlier than 18 months.'' In selecting a date to
implement this final policy, the FAA balanced the desire to implement a
beneficial program change as rapidly as possible with the practical
transition considerations of ongoing part 150 programs. In the notice
for public comment, the FAA anticipated a transition period of at least
180 days from the date of issuance of a final policy to avoid
disrupting airport operators' noise compatibility programs that have
already been submitted to the FAA and are undergoing statutory review.
The notice also suggested an additional margin of time to a maximum of
1 year to allow airport operators adequate opportunity to amend
previously completed noise compatibility programs or programs currently
under development, in consultation with local jurisdictions, to
emphasize preventive rather than remedial measures for new development.
Accordingly, and after careful consideration of the public comments on
this issue and the extended time since FAA issued notice of this
proposed policy, the FAA selects a transition period to end December
31, 1997. This should afford airport operators, local land use control
authorities, developers, and others with ample opportunity to revise
their plans, programs, land use controls, and building codes.
Issue: Use of statements from the proposed policy: We note that
statements in the proposed policy (60 FR 14701) have been misread.
FAA Response: These statements recognized the role that state and
local governments play in airport noise compatibility planning. They
did not reach the issue of whether zoning decisions that regulate
airports development and operations within an airport's existing
boundaries may be federally preempted. The statement ``Neither the FAA
nor any agency of the Federal Government has zoning authority'' has
been deleted because it led to some confusion.
Notice of Proposed FAA Policy
Accordingly, by this publication the FAA is formally notifying
airport operators and sponsors, airport users, the officials of all
public agencies and planning agencies whose area, or any portion of
whose area, of jurisdiction are within the noise contours as depicted
on an airport's part 150 noise exposure map, and all persons owning
property within, considering acquisition of property within,
considering moving into such areas, or having other interests in such
areas, of the following proposed final FAA policy concerning future
approval under 14 CFR part 150 and eligibility of AIP and PFC funding
of certain noise mitigation measures.
Proposed Final Policy Statement
Beginning January 1, 1998, the FAA will approve under part 150 only
remedial noise mitigation measures for existing noncompatible
development and only preventive noise mitigation measures in areas of
potential new noncompatible development. As of the same date, edibility
for AIP noise set-aside funding and PFC funding will be determined
using criteria that are consistent with this policy. Specifically,
remedial noise mitigation measures for new noncompatible development
occurring after the effective date of this final policy will not be
approved by the FAA under part 150 and will not be eligible for AIP
noise set-aside funding or approved for the use of PFC funding,
regardless of previous FAA approvals of such measures under part 150,
the status of implementation of an individual airport's part 150
program, or the status of any pending application to use AIP funds or
PFC revenue for noise mitigation purposes. This policy also applies to
projects that are eligible under the noise set-aside without a part 150
program. Eligibility for remedial noise mitigation measures for
bypassed lots or additions to existing structures within noise impacted
neighborhoods, additions to existing noise impacted schools or other
community facilities required by demographic changes within their
service areas, and formerly noise compatible uses that have been
rendered noncompatible as a result of airport expansion or changes in
airport operations, and other reasonable exceptions to this policy on
similar grounds must be justified by airport operators in submittals to
the FAA and will be considered by the FAA on a case-by-case basis. This
policy does not affect noise mitigation that is included in FAA-
approved environmental documents for airport development projects.
Issued in Washington, DC, on May 20, 1997.
Paul R. Dykeman,
Deputy Director of Environment and Energy.
[FR Doc. 97-13953 Filed 5-27-97; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 97-13873 Safety Fitness Procedure; Safety Ratings
[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28826-28835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13873]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 385
[FHWA Docket No. MC-94-22; FHWA-97-2252]
RIN 2125-AC 71
Safety Fitness Procedure; Safety Ratings
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking; request for comments.
-----------------------------------------------------------------------
SUMMARY: This document is in response to a decision of the U.S. Court
of Appeals, District of Columbia Circuit, entered on March 18, 1997. In
this rulemaking the FHWA is proposing to incorporate a modified Safety
Fitness Rating Methodology (SFRM), which would be used to measure the
safety fitness of motor carriers against the safety standard, as an
appendix to its Safety Fitness Procedures regulations. An interim final
rule published elsewhere in today's Federal Register incorporates the
current SFRM for an interim period to rate motor carriers that are
transporting hazardous materials in quantities for which vehicle
placarding is required, or transporting 15 or more passengers including
the driver.
DATES: Comments must be received on or before July 28, 1997.
ADDRESSES: Submit written, signed comments to the docket number that
appears in the heading of this document to the Docket Clerk, U.S. DOT
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, D.C. 20590-
0001. All comments received will be available for examination at the
above address between 10 a.m. and 5 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Mr. William C. Hill, Vehicle and
Operations Division, Office of Motor Carrier Research and Standards,
(202) 366-4009, or Mr. Charles Medalen, Office of the Chief Counsel,
(202) 366-1354, Federal Highway Administration, 400 Seventh Street,
SW., Washington, D.C. 20590. Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Court of Appeals for the District of Columbia Circuit
ruled that the FHWA's procedures for assigning safety ratings were
adopted contrary to law. MST Express and Truckers United for Safety v.
Department of Transportation and Federal Highway Administration, No.
96-1084, March 18,1997. The court ruled that the FHWA had failed to
carry out its statutory obligation to establish, by regulation, a means
of determining whether a motor carrier has complied with the safety
fitness requirements of the Motor Carrier Safety Act of 1984 (MCSA)
(codified at 49 U.S.C 31144). Because the carrier's safety rating was
determined based upon rules that were not promulgated pursuant to
notice and comment rulemaking, as 49 U.S.C. 31144(a) requires, the
petitioner's conditional safety rating was vacated and the matter
remanded to the FHWA ``for such further action as it may wish to take,
consistent with the decision.''
In this notice of proposed rulemaking (NPRM), the FHWA proposes to
modify the SFRM, incorporate it as Appendix B to Part 385, and use it
as the means for deciding whether motor carriers meet the safety
fitness requirements.
The FHWA has been using an SFRM, comprised of six rating factors,
since October 1, 1989, as the mechanism for determining how well motor
carriers are adhering to 49 CFR 385.5, Safety fitness standard. In
addition to making the detailed explanation available since August 16,
1991, the FHWA has sought comments from interested members of the
public in FHWA Docket Nos. MC-91-8 (56 FR 40801) and MC-94-22 (59 FR
47203).
In the first docket, the FHWA solicited public comment on an
interim final rule (56 FR 40801) (August 16, 1991) implementing that
provision of the MCSA of 1990, Pub. L. 101-500, Sec. 15(b)(1), 104
Stat. 1218, 49 U.S.C. 5113, prohibiting a motor carrier with an
unsatisfactory safety rating from operating a commercial motor vehicle
(CMVs) to transport: (1) hazardous materials in quantities for which
vehicle placarding is required, or (2) more than 15 passengers
including the driver. This prohibition becomes effective after 45 days
have elapsed following receipt of an unsatisfactory safety rating
issued by the FHWA. During the 45-day period, the motor carrier should
take such action as may be necessary to improve its safety rating to
conditional or satisfactory or be subject to the prohibition. Fourteen
comments were received in response to the 1991 interim final rule. Such
of those comments as provide relevant information to this NPRM are
discussed herein. The FHWA will also determine whether the 1991 interim
rule is to be made final after consideration of the comments received
in response to today's NPRM.
In the second docket, the FHWA published in the Federal Register on
September 14, 1994, a notice and request for comments (59 FR 47203)
explaining changes made to the SFRM in 1993, which was then being used
to evaluate a motor carrier's adherence to the Sec. 385.5 safety
fitness standard. Additional changes to the SFRM, which became
effective on October 1, 1994, were also explained. These changes
initiated the use of violations of the safety regulations designated as
``acute'' or ``critical'' to rate each of the five regulatory factors
evaluated when performing a compliance review (CR) at a carrier's place
of business.
The FHWA also solicited comments concerning: (1) changes made in
1994, (2) the direction that future modifications to the SFRM should
take, and (3) how best to disseminate information to the industry about
new regulations and the FHWA programs that encourage ``voluntary
compliance.''
The 17 comments received in response to changes to the rating
criteria are discussed in this notice to the extent they provide
relevant information to this NPRM. Comments that are duplicative of
those discussed under the prior docket discussion are not repeated.
In today's NPRM, the FHWA is proposing to incorporate as Appendix B
to Part 385 the SFRM in a form substantially similar to that which has
been used over the past 8 years and adopted by the interim final rule
published elsewhere in today's Federal Register. The SFRM proposed in
this NPRM has been modified, however, to change the accident factor.
The reasons for this proposed modification are as follows. The
preventable recordable accident criteria have been used by
[[Page 28827]]
FHWA since the mid-1980s. The FHWA has, however, received complaints
that the criteria are too subjective. During the CR, preventability is
evaluated based on the safety specialist's assessment. The FHWA
believes that if a driver, who exercises normal judgment and foresight
could have foreseen the possibility of the accident that in fact
occurred, and avoided it by taking steps within his/her control which
would not have risked causing another kind of mishap, the accident was
preventable. However, individuals will not always agree when the same
fact situations are evaluated.
We are proposing to use all recordable accidents in evaluating the
accident factor because we believe this is a more objective standard.
The data indicate that the vast majority of all accidents have been
determined to be preventable. For Fiscal Year 1995, the average
accident rate, derived from CRs performed during that time frame, was
0.812 for all carriers and 1.029 for carriers that operated entirely
within a 100 air mile radius.
We are proposing to double the average rate to determine when a
carrier is unsatisfactory in the accident factor. The FHWA believes
that it would be reasonable to rate unsatisfactory, for the accident
factor alone, any motor carrier with an accident rate that is twice the
average rate for all carriers (or for carriers operating entirely
within the 100 air mile radius, as the case may be), because the FHWA
believes that it is likely that a carrier with an accident rate
substantially above the norm for similarly situated carriers has
inadequate or improperly functioning safety management controls. See 49
CFR Sec. 385.7. Nevertheless, the recordable accident rate will be used
to rate Factor 6, Accident, for a carrier only when the carrier has had
two or more recordable accidents within the 12 months prior to the CR.
The FHWA believes that a single accident within that time frame could
be due to any number of reasons not reflecting on the adequacy of the
carrier's safety management controls. Additionally, the FHWA proposes
no longer to assign satisfactory or conditional ratings for this
factor; only unsatisfactory ratings will be assigned.
Discussion of Comments
Purpose of Safety Ratings
The Interstate Truckload Carriers Conference (ITCC) stated that the
FHWA's safety rating process was never intended to be used as an
administrative mechanism for imposing severe sanctions upon motor
carriers. The safety rating system, according to the ITCC, was
developed as an educational and management tool so the FHWA could focus
its limited resources on the operations of motor carriers with
problems. The commenter claimed that a motor carrier could receive a
rating as a result of factors or considerations which were never part
of a rulemaking proceeding and thus possibly be a violation of the
Administrative Procedure Act (APA).
The American Trucking Associations (ATA) had similar concerns that
because the safety criteria had not gone through public notice and
comment rulemaking, it would be a possible violation of the APA and
unfair for the FHWA to use those criteria for enforcement purposes. The
ATA wanted the FHWA to provide the formula that establishes the
unsatisfactory safety rating. It also stated that the safety rating
process should be developed through notice and comment rulemaking.
Comments concerning the safety review (SR) are no longer relevant since
that review process was discontinued on September 30, 1994.
The FHWA adopted a final rule in 1988, after notice and opportunity
for comment, that implemented the requirements of section 215 of the
MCSA of 1984 and established a procedure to determine the safety
fitness of motor carriers. The FHWA believed that the SFRM that it used
to supplement the procedures set forth in its regulations did not
amount to substantive requirements necessitating notice and comment
rulemaking. In its interim final rule adopted in 1991, the FHWA advised
motor carriers that they could obtain copies of the safety rating
process by contacting the agency. See 56 FR at 40803. This offer to
provide copies of the SFRM to carriers was reiterated in 1994. See 59
FR at 47205.
In light of the court's decision in MST Express, the FHWA is now
soliciting public comment on its proposal to add the SFRM, modified as
described in this NPRM, to Part 385. The FHWA notes that the SFRM
proposed today has been modified, in part, in light of public comments
received in response to the 1991 interim final rule and the 1994
request for public comment.
Accident Factor
The ATA and the American Bus Association (ABA) were concerned about
the inclusion of the reportable/preventable (subsequently changed to
recordable/preventable) accident frequency in the rating process, as
there are no regulations specifying acceptable frequencies for a
satisfactory rating. Also, they believe that in borderline cases
preventability is a judgment call that may be influenced by short-term
objectives. The ABA stated that the FHWA has not defined a preventable
accident, and it would like the criteria for preventability ``spelled
out.'' The ABA also suggested that the FHWA could consider all
reportable (now recordable) accidents in its safety rating process,
which would eliminate subjective evaluations of whether particular
accidents were preventable.
In response to these comments, the FHWA is proposing to adopt a
recordable accident rate for the accident factor in the SFRM as
discussed above.
The recordable accident rate will be used to rate Factor 6,
Accident, only when two or more recordable accidents occurred within
the 12 months prior to the initiation of the CR. Urban carriers (a
carrier operating entirely within the 100 air mile radius) with a
recordable accident rate greater than 2.1 will receive an
unsatisfactory rating for the accident factor. All other carriers with
a recordable accident rate greater than 1.6 would receive an
unsatisfactory factor rating.
Definitions of ``Conditional'' and ``Unsatisfactory''
The ATA noted that the Sec. 385.3 definitions of conditional and
unsatisfactory should be changed to reflect Sec. 385.5 (a)-(k), and not
(h), as published in the August 16, 1991, Federal Register. That change
is proposed in this notice.
Objectivity of Ratings
The Chemical Waste Transportation Institute (CWTI) supported the
FHWA's efforts to develop a computerized rating formula, and wanted the
subjectivity minimized as much as possible. It also suggested that the
FHWA describe what steps are being taken to minimize human error in the
safety rating process.
The FHWA believes that having modified the SFRM to rate on the
basis of actual violations of acute regulations and patterns of
violations of critical regulations, as well as performance proposed to
be measured by recordable accidents and vehicle out-of-service (OOS)
rates from roadside vehicle/driver inspections, the safety rating
process has been made more objective.
Definitions of ``Acute'' and ``Critical'' Regulations
General Electric recommended having the ``critical'' and ``acute''
regulations made available to the public and the definitions of the
terms ``critical'' and ``acute'' defined in part 385. It also
recommended that the definitions of conditional and unsatisfactory be
revised to make a clearer distinction
[[Page 28828]]
between these two ratings. The ABA stated that ``the definitions of
critical and acute violations are too vague to allow a reasonable
objective judgment.'' The ``acute'' and ``critical'' regulations and
the definitions of the terms are being published in the proposed
Appendix B to 49 CFR 385.
Algorithm
Blakely & Associates wanted a computerized algorithm with a formula
table so that carriers can determine ratings themselves. It also
suggested that the FHWA provide to the carrier the rating at the
conclusion of the CR. The SFRM contains explanations of the factor
ratings and the Motor Carrier Safety Rating Table, which is the formula
for determining a safety rating. The FHWA has also modified its
procedures to provide motor carriers with an anticipated rating at the
conclusion of the CR.
Elimination of the SR
Hanson Trucking and the ITCC believe that the SR should not have
been eliminated as ``it takes the focus of the audit from realistic
safety concerns and places the focus on inaccuracies in paperwork.''
Hanson Trucking did not believe that noncompliance in the areas of
false entries and improper form and manner will lead to increased
accident frequency and severity. The ITCC believed that the 70-question
format allowed carriers to police their operations and determine the
quality of their safety compliance in advance of a CR by the FHWA. It
stated that the first concern of an on-site audit should be the
accident history of the motor carrier. Further, the ITCC believes that
if a high accident frequency is in evidence, a CR should then be
conducted in an attempt to educate the carrier in accident
preventability. According to the ITCC, the lack of significant accident
data (no accidents) should indicate that the motor carrier has an
adequate safety program in place. The end goal, the ITCC stated, should
be: no accident problems equals no CR or enforcement action.
The FHWA discontinued the SR since the CR is a more objective means
to assess a motor carrier's adherence to the Sec. 385.5, safety fitness
standard. To the extent a carrier needs to know how far into
noncompliance it can slip without risking a bad rating, the carrier
will now be able to assess its safety compliance by conducting a self-
review to determine if it has violations of ``acute'' regulations or
patterns of violations of ``critical'' regulations.
Vehicle Factor
In factor 4 (Vehicle), the California Highway Patrol (CHP) believes
the former system of a conditional threshold at 17 percent vehicle OOS
rate for the vehicle factor was more appropriate than the current 34
percent OOS rate for conditional, and the Advocates for Highway and
Auto Safety (Advocates) generally agreed with this position. The CWTI
requested the FHWA to disclose its rationale for 34 percent OOS rate
for a conditional factor 4 rating and for selecting 10 percent for the
pattern of violations when evaluating compliance with ``critical''
regulations. The NPTC stated that the original 17 percent OOS rate
should be the threshold for assigning a conditional factor rating, and
then random vehicle inspections should be performed at the time of the
CR. If there is total compliance with the part 396 requirements, the
factor rating should be upgraded.
The ATA and several carriers were concerned that vehicles are
sometimes inspected, no defects are discovered and the vehicles are
then allowed to proceed without written inspection reports. Because of
this, they contend the FHWA should re-evaluate the use of OOS
percentages as a major component of factor 4 (Vehicle) rating, and
place more importance on the motor carrier's compliance with part 396.
Some carriers contended that for the OOS rate to be an accurate
representation of a motor carrier's compliance with the regulations, it
must be adjusted to the carrier's size.
The FHWA considered the comments concerning the method of
evaluating compliance with the Vehicle Factor. The FHWA believes that
the current method is appropriate and will not propose any changes at
this time. Our goal is to utilize ``performance-based information'' to
rate motor carriers whenever possible. Vehicle OOS rates are,
therefore, used as a first indicator to evaluate factor 4-(Vehicle). A
minimum of three or more inspections would be required to use vehicle
OOS rates as a first indicator. The three inspections must have
occurred in the twelve months prior to the CR, or be a combination of
inspections performed at the motor carrier's facility at the time of
the CR.
If it appears during the CR that the motor carrier's maintenance
has either improved or deteriorated since the inspections in the Motor
Carrier Management Information System, it is appropriate for the
individual conducting the CR to perform inspections at the motor
carrier's facility if vehicles are available (vehicles ready to be
dispatched or vehicles that just came off the road). Inspections may
also be performed at the motor carrier's facility at the time of the
CR, if there are fewer than three inspections on the carrier profile
for the prior 12 months.
The reason for using a 34 percent or greater OOS rate for the
conditional first indicator is as follows: (1) The national OOS rate
has been in the low thirties for several years; (2) many of the
roadside inspections are targeted at visibly defective vehicles; (3)
some vehicles receive a cursory inspection and if there are no apparent
defects, the vehicles are allowed to proceed without an inspection
report being generated; and (4) using a minimum of three or more
vehicle inspections, one OOS vehicle should not be able to impact the
factor rating. The second indicator is the motor carrier's compliance
with part 396, inspection, repair, and maintenance requirements. The
number of records to be reviewed is derived from the International
Standard of sampling procedures. If a violation of a part 396 acute
regulation, or a pattern of violations of a critical regulation is
discovered, a first indicator factor rating of conditional will be
lowered to unsatisfactory, and a satisfactory factor rating to
conditional, respectively.
Using two indicators to evaluate this factor is a reasonable
approach. The vehicle OOS rates are either confirmed, with the first
indicator rating remaining the same, or if significant noncompliance
with part 396 is discovered, the factor rating is lowered to
conditional or unsatisfactory, respectively. All of the defects that
have been identified as OOS violations have the same weight, which is
an additional reason for the OOS rate being set at 34 percent for
conditional as the first indicator in the factor rating.
Selection of Records for Review
The ATA and several carriers stated that the safety rating process
is not based upon a random sampling of the motor carrier's records. The
FHWA has given a great deal of consideration to the issue of selecting
carriers' records for review. The Sec. 385.5 safety fitness standard
was developed to measure the effectiveness of a motor carriers' safety
management controls. The CR identifies and documents areas where a
motor carrier's safety management controls have failed or are
ineffective. The FHWA focuses its review on drivers and vehicles that
were involved in accidents, those drivers who incurred OOS violations
during roadside inspections, or those drivers or vehicles for which
violations are more likely to be found (e.g. those drivers driving the
[[Page 28829]]
most miles). The drivers and vehicles reviewed using the ``focused
sample'' are the same ones carrier officials should be focusing their
efforts upon. The minimum number of records to be reviewed is derived
from the International Standard of sampling procedures, which is based
upon the number of drivers or vehicles that the motor carrier operates.
When the number of records from this focused sample has been exhausted
and there are fewer records than the sampling guidelines specify,
random sampling is used to meet the minimum number required to be
reviewed. Classifying certain regulations as ``acute'' or ``critical''
assists motor carriers in their compliance efforts as they can
concentrate their initial efforts on complying with these regulations.
It should be noted, however, that only full compliance with all of the
safety regulations will ensure that motor carriers comply with the
provisions of the Sec. 385.5, safety fitness standard.
``Acute'' regulations are ones where violations should not occur
for a motor carrier with effective safety management controls. An
example of an ``acute'' regulation is Sec. 382.211, using a driver who
has refused to submit to an alcohol or controlled substances test
required under part 382. A motor carrier which commits this violation
is one that instructed the driver to undergo testing, and the driver
refused to be tested. There is no reasonable excuse for a carrier to
use the driver after that driver's refusal to be tested.
A pattern of noncompliance is required before a rating factor is
impacted by violations of ``critical'' regulations because even a motor
carrier with effective safety management controls will, in all
likelihood, violate some of the ``critical'' regulations. An example of
a ``critical'' regulation is Sec. 395.3(a)(1), requiring or permitting
driver to drive more than 10 hours. By identifying this regulation as
``critical,'' the FHWA has ensured that violations will not impact
factor 3 (Hours of Service) unless they constitute a pattern. A pattern
is defined as a number of violations (more than one) constituting 10
percent or more of the occasions where like violations could have
occurred. Thus, when evaluating compliance with a ``critical''
regulation, the motor carrier's safety management controls usually are
judged to be effective if the number of discovered violations is under
10 percent.
The FHWA believes that motor carriers with effective safety
management controls are able to achieve a level of compliance with
``critical'' regulations before they reach a pattern of violations. For
rating purposes, all violations are considered, and effective safety
management oversight should result in a violation rate of less than 10
percent of the records or occasions reviewed.
Opportunity to Challenge a Rating
Several commenters wanted the procedures changed to allow a motor
carrier 30 days to challenge an anticipated safety rating where there
are factual issues in dispute.
The FHWA believes that providing a motor carrier the anticipated
rating at the conclusion of the CR gives the carrier adequate notice
that a rating of conditional or unsatisfactory will become effective 30
days from that date. Motor carriers receiving such a notice can
immediately: (1) Take corrective action on the discovered violations,
which will enable them to request a reevaluation based upon corrective
action taken (Sec. 385.17), and/or (2) petition the Director, Office of
Motor Carrier Field Operations, if there are factual or procedural
issues in dispute (Sec. 385.15). Either option may be utilized before
the carrier receives a final safety rating.
Point Assessment for Violations of ``Acute'' and ``Critical''
Regulations
The ATA stated that assessing one point for a violation of an
`acute' regulation discriminates against the large motor carrier since
more records are reviewed. Thus, it contends, there is a greater chance
of one violation being discovered. The ATA further stated that
violations of ``acute'' regulations should be evaluated on a percentage
basis analogous to the 10% threshold for ``critical'' regulations.
Rocor International wanted the percentage of violations of an ``acute''
regulation to be set at five percent of the records examined before one
point is assessed. It stated that this would be fairer to the larger
motor carrier where the probability of discovering a violation of one
``acute'' regulation increases directly with the number of records
examined. The NPTC commented ``Automatically assigning a conditional
rating for a single instance of noncompliance with an ``acute''
regulation may not be justified and fair. Just as there are many
factors that determine the safety fitness of a motor carrier--vehicle
condition, driver condition, over-the-road performance--when one part
of one of these factors is out of compliance, it does not necessarily
mean the motor carrier is unsafe.''
Acute regulations have been identified as regulations where
noncompliance is so severe (and avoidable by the attentive motor
carrier) that its occurrence is itself demonstrable of the absence of
effective safety management controls. It is reasonable to demand zero
tolerance for violations of these regulations. Thus, regardless of the
number of motor carrier records checked, there should not be any
instances of noncompliance with these identified ``acute'' regulations.
If a motor carrier has violated an acute regulation, one instance of
noncompliance will cause the factor rating to be conditional, but will
not, in and of itself, cause the motor carrier to have a less than
satisfactory safety rating. A motor carrier with as many as two factor
ratings of conditional will still be rated as satisfactory. The FHWA
believes that this is adequate protection for a motor carrier, of any
size, that violates an acute regulation.
The CHP and the Advocates agreed with two points being assessed for
a pattern of non-compliance with part 395 critical regulations.
On the other hand, the ATA and several other commenters believed
that there is no justification for doubling the point value for hours
of service violations, and that the FHWA has no evidence to show that
fatigue or lack of alertness related accidents are tied to hours of
service violations. Schafer Trucking wanted factor 3 (Hours of Service)
changed from two points to one point for a pattern of noncompliance
with a critical regulation unless the CR reveals the absence of an
effective hours of service compliance program as indicated by either:
(i) A recordable/preventable accident rate of more than 0.45 per
million miles, or (ii) the failure of the carrier to have in place an
hours of service compliance program enforced by sanctions which include
driver suspensions and/or terminations for hours of service
violations.''
The FHWA believes that there are data to draw the conclusion that
hours of service violations are related to fatigue. Studies have shown
that driver error is a significant factor in the majority of accidents.
The FHWA is continuing its major research efforts to better understand
fatigue. There are no ``acute'' regulations in part 395 (Hours of
Service). Thus, to have a rating of less than satisfactory in factor 3,
a motor carrier would need a pattern of noncompliance with a
``critical'' regulation. When reviewing driver records of duty status
(RODS), it is very rare that only several records are reviewed as a
driver would typically generate 30 RODS in a month. The FHWA believes
that motor carriers with effective safety management controls
[[Page 28830]]
will have less than a 10 percent rate of noncompliance with any of the
part 395 critical regulations.
Rating Factors
The ITCC stated that the assignment of equal weights for the six
rating factors seems inconsistent with the underlying purpose of giving
more weight to violations of regulations that are acute or critical. It
did not think that all factors should be weighted equally. The ITCC
also stated that the overall factor rating is the correct area in which
to place greater emphasis upon compliance with violations of the hours
of service regulations.
The FHWA's SFRM, developed in 1988-89, combines parts of the FMCSRs
and HMRs having similar characteristics into five regulatory areas
called ``rating factors.'' A sixth factor is included to address the
accident history of the motor carrier. Each of the factors is rated
satisfactory, conditional or unsatisfactory. Each of the six factors is
weighted equally in the safety rating methodology. Giving each of the
six factors equal weight is an attempt to balance the safety
significance of the regulations, except that the FHWA believes it is
appropriate to increase the point value for patterns of noncompliance
with ``critical'' regulations relating to Part 395. Otherwise, the FHWA
intends to retain the equal weight of the six factor ratings.
Regarding some comments suggesting more or less relationship
between enforcement and rating factors, the FHWA believes that
separating enforcement actions from safety ratings is appropriate. Both
are tools that are used to induce motor carriers to improve their
compliance with regulatory requirements. There will be instances where
a motor carrier has an enforcement action pending against it, and
appropriately has a satisfactory safety rating. An example of this is
where one terminal has a 15 percent violation rate for compliance with
Sec. 395.3 (a)(1), requiring or permitting driver to drive more than 10
hours. The motor carrier's overall violation rate may be seven percent
for compliance with Sec. 395.3(a)(1), which is satisfactory; however,
an enforcement action may be initiated against the carrier for its
terminal with the 15 percent violation rate. The FHWA believes this is
appropriate as the carrier's overall compliance is satisfactory yet it
has a significant noncompliance problem at one terminal with a 15
percent violation rate for noncompliance with Sec. 395.3(a)(1).
Future Direction
Today's NPRM is necessary to meet the FHWA's obligation under 49
U.S.C. Sec. 31144, as interpreted by the court in MST v. DOT, to
prescribe regulations establishing a procedure to decide on the safety
fitness of owners and operators of commercial motor vehicles, which
shall include--
(A) specific initial and continuing requirements to be met by the
owners, operators, and persons to prove safety fitness;
(B) a means of deciding whether the owners, operators, and persons
meet the safety fitness requirements of clause (A) of this paragraph;
and
(C) specific time deadlines for action by the Secretary in making
fitness determinations.
The FHWA believes incorporation of the SFRM and the other
amendments to Part 385 proposed herein will meet that obligation. It is
now soliciting further comments on the SFRM as an appendix to Part 385
for use in determining a motor carrier's safety fitness, the proposed
change to the accident factor, as well as on the other minor changes
proposed to be made to Part 385 itself.
The FHWA views this proposed action as a short-term approach. For
the long term, the FHWA is moving toward a more performance-based means
of determining when it is that carriers are not fit to conduct
commercial motor vehicle operations safely in interstate commerce.
Under legislative direction in the Intermodal Surface
Transportation and Efficiency Act of 1991, the FHWA has been conducting
pilots in five States to determine the feasibility of relating safety
performance to vehicle registrations. This has led to the development
of a system of data collection, called Safestat, which incorporates all
the safety information known about motor carriers and produces a
relative ranking of each carrier against all others similarly situated.
Within the next year or two, the FHWA believes the system will have
reached the point where it can be successfully employed to identify the
worst performing carriers. The system is presently used to identify
problem carriers and prioritize them for CRs.
Several sections in part 385 are proposed to be amended to correct
previous technical errors. The definition of ``Safety review'' in
section 385.3 would be removed since the Safety Review was discontinued
as of October 1, 1994. The definition of Conditional safety rating in
section 385.3 would be revised to ``ensure compliance with the safety
fitness standard that could result in occurrences listed in
Sec. 385.5(a) through (k).'' The definition of Unsatisfactory safety
rating would be revised to ``ensure compliance with the safety fitness
standard which has resulted in occurrences listed in Sec. 385.5(a)
through (k). Section 385.9 would be revised to include a subsection (b)
to meet the 49 U.S.C Sec. 31144(a)(C) requirement that there be
specific time deadlines for action by the Secretary in making fitness
decisions. Section 385.17 would be revised to ``conditionally suspend
the prohibition of operating with the unsatisfactory safety rating for
an additional period of up to 10 days.'' The current Appendix to Part
385 is changed to Appendix A in the interim final rule published
elsewhere in today's Federal Register. The revised Safety Rating
Process is added as Appendix B.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866. No
serious inconsistency or interference with another agency's actions or
plans is likely to result, and it is unlikely that this regulatory
action will have an annual effect on the economy of $100 million or
more. This Notice of proposed rulemaking rule is administrative in
nature in that it neither imposes new requirements upon the motor
carrier industry nor alters the August 16, 1991, interim final rule
implementing the provisions of 49 U.S.C. 5113. The FHWA does not
anticipate any new economic impacts as a result of this rulemaking.
This rule would not impose any costs on motor carriers in addition to
those assessed in the Regulatory Evaluation and Regulatory Flexibility
Analysis prepared in support of the 1988 final rule. (The 1991 interim
final amended the 1988 rule in ways that the FHWA believes had minimal
economic impact on motor carriers.)
The existing rating factors are used to evaluate the degree to
which the motor carrier complies with the regulations and add no costs
because the carrier is already required to comply. Compliance with
regulations, however, is only a surrogate for actual safety
performance. The addition of the accident factor introduced a direct
measure of performance into the equation. In 1988, this factor was not
considered as having a cost consequence because the effect of a
negative rating resulting from substantially higher accidents than the
[[Page 28831]]
norm would be virtually identical to the impact on the carrier's
business that would flow from public knowledge of its poor safety
performance.
The impact resulting from a negative rating generally relates to
knowledge of the rating by a shipper or insurer. If those same entities
know of the unusually high accident rate, the FHWA believes the
consequences would or should be approximately the same.
The instant proposal to consider all recordable accident instead of
only preventable recordable accidents would have the same sort of
impact. Nevertheless, the FHWA believes that this is a significant
regulatory action within the meaning of the Department of
Transportation's regulatory policies and procedures because it expects
that there will be significant public interest in this action.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities
and has determined that it would not have a significant economic impact
on a substantial number of small entities. The motor carriers
economically impacted by this rulemaking will be those who are rated as
unsatisfactory, and fail to take appropriate actions to have their
rating upgraded. In the past, relatively few small motor carriers had
been affected by the statutory consequences of an unsatisfactory, and
there is no reason to believe that those impacts will increase in any
way by this action.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rulemaking does not have sufficient Federalism implications
to warrant the preparation of a Federalism assessment. These safety
requirements do not directly preempt any State law or regulation, and
no additional costs or burdens would be imposed on the States as a
result of this action. Furthermore, the State's ability to discharge
traditional State governmental functions would not be affected by this
rulemaking.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for the purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3520.
National Environmental Policy Act
The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 385
Highway safety, Highways and roads, Motor carriers, Motor vehicle
safety, and Safety fitness procedures.
Issued on: May 21, 1997.
Jane F. Garvey,
Acting Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
49, Code of Federal Regulations, Chapter III, Part 385 as set forth
below:
PART 385--SAFETY FITNESS PROCEDURES
1. The authority citation for part 385 continues to read as
follows:
Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 5113, 31136, 31144,
and 31502; 49 CFR 1.48.
2. In Sec. 385.3, under the definition ``Reviews'', remove and
reserve paragraph ``(2) Safety review''; and under the definition
``Safety ratings'', revise paragraphs ``(2) Conditional safety rating''
and ``(3) Unsatisfactory safety rating'' to read as follows:
Sec. 385.3 Definitions.
* * * * *
Reviews. * * *
(1) * * *
(2) [Reserved]
(3) * * *
Safety ratings: (1) * * *
(2) Conditional safety rating means a motor carrier does not have
adequate safety management controls in place to ensure compliance with
the safety fitness standard that could result in occurrences listed in
Secs. 385.5 (a) through (k).
(3) Unsatisfactory safety rating means a motor carrier does not
have adequate safety management controls in place to ensure compliance
with the safety fitness standard which has resulted in occurrences
listed in Secs. 385.5 (a) through (k).
* * * * *
3. Section 385.9 is amended by designating the current undesignated
text as paragraph (a), and by adding paragraph (b) to read as follows:
Sec. 385.9 Determination of a safety rating.
(a) * * *
(b) Unless otherwise specifically provided in this chapter, a
safety rating will be issued to a motor carrier within 30 days
following the completion of a compliance review.
4. Section 385.17 is amended by revising paragraph (c) to read as
follows:
Sec. 385.17 Request for a change in a safety rating; corrective action
taken.
* * * * *
(c) In cases where the FHWA is unable to make a determination
within the 45-day period established in Sec. 385.13 and the motor
carrier has submitted evidence that corrective actions have been taken
pursuant to paragraph (a) of this section, and has cooperated in any
investigation, the FHWA may conditionally suspend the prohibition of
operating with the unsatisfactory safety rating for an additional
period of up to 10 days.
5. Part 385 is amended by designating the existing appendix as
appendix A, and by adding appendix B to read as follows:
Appendix B To Part 385--Safety Rating Process
Section 215 of the Motor Carrier Safety Act of 1984 (49 U.S.C.
31144) directed the Secretary of Transportation, in cooperation with
the Interstate Commerce Commission, to establish a procedure to
determine the safety fitness of owners and operators of commercial
motor vehicles operating in interstate or foreign commerce. The
Secretary, in turn, delegated this responsibility to the Federal
Highway Administration (FHWA).
As directed, FHWA promulgated a safety fitness regulation,
entitled ``Safety Fitness Procedures'', which established a
procedure to determine the safety fitness of motor carriers through
the assignment of safety ratings and established a ``safety fitness
standard'' which a motor carrier must meet to obtain a satisfactory
safety rating.
To meet the safety fitness standard, a motor carrier must
demonstrate to FHWA that it has adequate safety management controls
in
[[Page 28832]]
place which function effectively to ensure acceptable compliance
with the applicable safety requirements. A ``safety fitness rating
methodology'' (SFRM) was developed by the FHWA, which uses data from
compliance reviews (CRs) to rate motor carriers.
The safety rating process developed by FHWA's Office of Motor
Carriers is used to:
1. Evaluate safety fitness and assign one of three safety
ratings (satisfactory, conditional or unsatisfactory) to motor
carriers operating in interstate commerce. This process conforms
with 49 CFR 385.5--Safety fitness standard and Sec. 385.7--Factors
to be considered in determining a safety rating.
2. Identify motor carriers needing improvement in their
compliance with the Federal Motor Carrier Safety Regulations
(FMCSRs) and applicable Hazardous Material Regulations (HMRs). These
are carriers rated unsatisfactory or conditional.
Source of Data for Rating Methodology
The FHWA's rating process is built upon the operational tool
known as the CR. This tool was developed to assist Federal and State
safety specialists in gathering pertinent motor carrier compliance
and accident information.
The CR is an in-depth examination of a motor carrier's
operations and is used (1) to rate unrated motor carriers, (2) to
conduct a follow-up investigation on motor carriers rated
unsatisfactory or conditional as a result of a previous review, (3)
to investigate complaints, or (4) in response to a request by a
motor carrier to reevaluate its safety rating. Documents such as
those contained in driver qualification files, records of duty
status and vehicle maintenance records are thoroughly examined for
compliance with the FMCSRs and HMRs. Violations are cited on the CR
document. Performance based information, when available, is utilized
to evaluate the carrier's compliance with the vehicle regulations.
Recordable accident information is also collected.
Converting CR Information Into a Safety Rating
The FHWA gathers information through an in-depth examination of
the motor carrier's compliance with identified ``acute'' or
``critical'' regulations of the FMCSRs and HMRs.
Acute are those identified regulations, where noncompliance is
so severe to require immediate corrective actions by a motor carrier
regardless of the overall safety posture of the motor carrier. An
example of an acute regulation is Sec. 383.37(b)--Allowing,
requiring, permitting, or authorizing an employee with more than one
Commercial Driver's License (CDL) to operate a commercial motor
vehicle. Noncompliance with Sec. 383.37(b) is usually discovered
when the motor carrier's driver qualification file reflects that the
motor carrier had knowledge of a driver with more than one CDL, and
still permitted the driver to operate a commercial motor vehicle. If
the motor carrier did not have knowledge or could not reasonably be
expected to have knowledge, then a violation would not be cited.
Critical are those identified regulations, where noncompliance
relates to management and/or operational controls. Noncompliance
with these regulations is indicative of a breakdown in a carrier's
management controls. An example of a critical regulation is
Sec. 395.3(a)(1)--Requiring or permitting a driver to drive more
than 10 hours.
The list of the acute and critical regulations which are used in
determining safety ratings is included at the end of this document.
Noncompliance with acute regulations and patterns of
noncompliance with critical regulations are quantitatively linked to
inadequate safety management controls and usually higher than
average accident rates. The FHWA has used noncompliance with acute
regulations and patterns of noncompliance with critical regulations
since 1989 to determine motor carriers' adherence to the
Sec. 385.5--Safety fitness standard. Compliance with regulatory
factors (1) Parts 387, & 390, (2) Parts 382, 383 & 391, (3) Parts
392 & 395, (4) Parts 393 & 396, when there are less than three
vehicle inspections in the last 12 months to evaluate, and (5) Parts
397, 171, 177 & 180, will be evaluated as follows:
For each instance of noncompliance with an acute regulation or
each pattern of noncompliance with a critical regulation during the
CR, one point will be assessed. A pattern is more than one
violation. When large numbers of documents are reviewed the number
of violations required to meet a pattern is equal to at least 10
percent of those examined.
However, each pattern of noncompliance with a critical
regulation relative to Part 395, Hours of Service of Drivers, will
be assessed two points.
Vehicle Factor
When there are a combination of three or more inspections
recorded in the Motor Carrier Management Information System (MCMIS)
during the twelve months prior to the CR or performed at the time of
the review, the Vehicle Factor (Parts 393 & 396) will be evaluated
on the basis of the Out-of-Service (OOS) rates and noncompliance
with acute regulations and/or a pattern of noncompliance with
critical regulations. The results of the review of the OOS rate will
affect the Vehicle Factor rating as follows:
1. If a motor carrier has three or more roadside vehicle
inspections in the twelve months prior to the carrier review, or
three vehicles inspected at the time of the review, or a combination
of the two totaling three or more, and the vehicle OOS rate is 34%
or greater, the initial factor rating will be conditional. The
requirements of Part 396--Inspection, Repair, and Maintenance, will
be examined during each review. The results of the examination could
lower the factor rating to unsatisfactory if noncompliance with an
acute regulation or a pattern of noncompliance with critical
regulation is discovered. If the examination of the Part 396
requirements reveals no such problems with the systems the motor
carrier is required to maintain for compliance, the Vehicle Factor
remains conditional.
2. If a carrier's vehicle OOS rate is less than 34%, the initial
factor rating will be satisfactory. If noncompliance with an acute
regulation or a pattern of noncompliance with a critical regulation
is discovered during the examination of Part 396 requirements, the
factor rating will be lowered to conditional. If the examination of
Part 396 requirements discovers no such problems with the systems
the motor carrier is required to maintain for compliance, the
Vehicle Factor remains satisfactory.
Nearly two million vehicle inspections occur on the roadside
each year. This vehicle inspection information is retained in the
MCMIS and is integral to evaluating motor carriers' ability to
successfully maintain their vehicles. Since many of the roadside
inspections are targeted to visibly defective vehicles and since
there are a limited number of inspections for many motor carriers,
the use of that data is limited. Each CR will continue to have the
requirements of Part 396-Inspection, Repair, and Maintenance,
reviewed as indicated by the above explanation.
Accident Factor
In addition to the five regulatory rating factors, a sixth
factor is included in the process to address the accident history of
the motor carrier. This factor is the recordable accident rate which
the carrier has experienced during the past 12 months. Recordable
accident means an accident involving a commercial motor vehicle
operating on a public road in interstate or intrastate commerce
which results in a fatality; bodily injury to a person who, as a
result of the injury, immediately receives medical treatment away
from the scene of the accident; one or more motor vehicles incurring
disabling damage as a result of the accident requiring the motor
vehicle to be transported away from the scene by a tow truck or
other motor vehicle.
The recordable accidents per million miles were computed for
each CR performed in Fiscal Year 1995. The national average for all
carriers rated was 0.812, and 1.029 for carriers operating entirely
within the 100 air mile radius.
Experience has shown that those motor carriers operating
primarily in less than a 100 air mile radius (normally in urban
areas) have a higher exposure to accident situations because of
their environment and normally have higher accident rates.
The recordable accident rate will be used to rate Factor 6,
Accident. It will be used only when a motor carrier incurs two or
more recordable accidents within the 12 months prior to the CR. An
urban carrier (a carrier operating entirely within the 100 air mile
radius) with a recordable accident rate greater than 2.1 will
receive an unsatisfactory rating for the accident factor. All other
carriers with a recordable accident rate greater than 1.6 will
receive an unsatisfactory factor rating. The rates are a result of
doubling the national average accident rate for all carriers rated
in Fiscal Year 1995.
Factor Ratings
In the methodology, parts of the FMCSRs and the HMRs having
similar characteristics are combined together into five regulatory
areas called ``factors.''
[[Page 28833]]
The following table shows the five regulatory factors, parts of
the FMCSRs and HMRs associated with each factor, and the accident
factor.
Factors
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Factor 1........................... General............... = Parts 387 and 390.
Factor 2........................... Driver................ = Parts 382, 383 and 391.
Factor 3........................... Operational........... = Parts 392 and 395.
Factor 4........................... Vehicle............... = Parts 393 and 396.
Factor 5........................... Haz. Mat.............. = Parts 397, 171, 177 and 180.
Factor 6........................... Accident Factor....... = Recordable Rate.
----------------------------------------------------------------------------------------------------------------
Factor Ratings are determined as follows:
``Satisfactory''--if the acute and/or critical = 0 points
``Conditional''--if the acute and/or critical = 1 point
``Unsatisfactory''--if the acute and/or critical = 2 or more points
Safety Rating
The ratings for the six factors are then entered into a rating
table which establishes the motor carrier's safety rating.
The FHWA has developed a computerized rating formula for
assessing the information obtained from the CR document and is using
that formula in assigning a safety rating.
Motor Carrier Safety Rating Table
------------------------------------------------------------------------
Factor ratings
------------------------------------------------- Overall safety rating
Unsatisfactory Conditional
------------------------------------------------------------------------
0............................. 2 or less....... Satisfactory.
0............................. More than 2..... Conditional.
1............................. 2 or less....... Conditional.
1............................. More than 2..... Unsatisfactory.
2 or more..................... 0 or more....... Unsatisfactory.
------------------------------------------------------------------------
Anticipated Safety Rating
The anticipated (emphasis added) safety rating will appear on
the CR.
The following appropriate information will appear after the last
entry on the CR, MCS-151, Part B.
``It is anticipated the official safety rating from Washington,
D.C. will be SATISFACTORY.''
or
``It is anticipated the official safety rating from Washington,
D.C. will be CONDITIONAL. The safety rating will become effective
thirty days from the date of the CR.''
or
``It is anticipated the official safety rating from Washington,
D.C., will be UNSATISFACTORY. The safety rating will become
effective thirty days from the date of the CR.''
Assignment of Rating/Motor Carrier Notification
When the official rating is determined in Washington, D.C., the
FHWA notifies the motor carrier in writing of its safety rating as
prescribed in Sec. 385.11. An anticipated safety rating which is
higher than the existing rating becomes effective as soon as the
official safety rating from Washington, D.C. is issued. Notification
of a conditional or unsatisfactory rating includes a list of those
Parts of the regulations, or recordable accident rate for which
corrective actions must be taken by the motor carrier to improve its
overall safety performance.
Motor Carrier Procedural Rights
Under Secs. 385.15 and 385.17, motor carriers have the right to
petition for a review of their ratings if there are factual or
procedural disputes, and to request another review after corrective
actions have been taken.
Conclusion
The FHWA believes this ``safety rating methodology'' is a
reasonable approach for assigning a safety rating which best
describes the current safety fitness posture of a motor carrier as
required by the safety fitness regulations (Section 385.9).
Improved compliance with the regulations leads to an improved
rating, which in turn increases safety. This increased safety is our
regulatory goal.
List of Acute and Critical Regulations
Sec. 382.115(c) Failing to implement an alcohol and/or controlled
substance testing program. (acute)
Sec. 382.201 Using a driver who has an alcohol concentration of
0.04 or greater. (acute)
Sec. 382.211 Using a driver who has refused to submit to an alcohol
controlled substances test required under Part 382. (acute)
Sec. 382.213(b) Using a driver who has used a controlled substance.
(acute)
Sec. 382.215 Using a driver who has tested positive for a
controlled substance. (acute)
Sec. 382.301(a) Failing to require driver to undergo pre-employment
controlled substance testing. (critical)
Sec. 382.303(a) Failing to conduct post accident testing on driver
for alcohol and/or controlled substances. (critical)
Sec. 382.305 Failing to implement a random controlled substances
and/or an alcohol testing program. (acute)
Sec. 382.305(b)(1) Failing to conduct random alcohol testing at an
annual rate of not less than 25 percent of the average number of
driver positions. (critical)
Sec. 382.305(b)(2) Failing to conduct random controlled substances
testing at an annual rate of not less than 50 percent of the average
number of driver positions. (critical)
Sec. 382.309(a) Using a driver who has not undergone a return-to-
duty alcohol test with a result indicating an alcohol concentration
of less than 0.02. (acute)
Sec. 382.309(b) Using a driver who has not undergone a return-to-
duty controlled substances test with a result indicating a verified
negative result for controlled substances. (acute)
Sec. 382.503 Driver performing safety sensitive function, after
engaging in conduct prohibited by Subpart B, without being evaluated
by substance abuse professional, as required by Sec. 382.605.
(critical)
Sec. 382.505(a) Using a driver within 24 hours after being found to
have an alcohol concentration of 0.02 or greater but less than 0.04.
(acute)
[[Page 28834]]
Sec. 382.605(c)(1) Using a driver who has not undergone a return-
to-duty alcohol test with a result indicating an alcohol
concentration of less than .02 or with verified negative test
result, after engaging in conduct prohibited by Part 382 Subpart B.
(acute)
Sec. 382.605(c)(2)(ii) Failing to subject a driver who has been
identified as needing assistance to at least six unannounced follow-
up alcohol and controlled substance tests in the first 12 months
following the driver's return to duty. (critical)
Sec. 383.23(a) Operating a commercial motor vehicle without a valid
commercial driver's license. (critical)
Sec. 383.37(a) Allowing, requiring, permitting, or authorizing an
employee with a Commercial Driver's License which is suspended,
revoked, or canceled by a state or who is disqualified to operate a
commercial motor vehicle. (acute)
Sec. 383.37(b) Allowing, requiring, permitting, or authorizing an
employee with more than one Commercial Driver's License to operate a
commercial motor vehicle. (acute)
Sec. 383.51(a) Allowing, requiring, permitting, or authorizing a
driver to drive who is disqualified to drive a commercial motor
vehicle. (acute)
Sec. 387.7(a) Operating a motor vehicle without having in effect
the required minimum levels of financial responsibility coverage.
(acute)
Sec. 387.7(d) Failing to maintain at principal place of business
required proof of financial responsibility. (critical)
Sec. 387.31(a) Operating a passenger carrying vehicle without
having in effect the required minimum levels of financial
responsibility. (acute)
Sec. 387.31(d) Failing to maintain at principal place of business
required proof of financial responsibility for passenger vehicles.
(critical)
Sec. 390.15(b)(2) Failing to maintain copies of all accident
reports required by State or other governmental entities or
insurers. (critical)
Sec. 390.35 Making, or causing to make fraudulent or intentionally
false statements or records and/or reproducing fraudulent records.
(acute)
Sec. 391.11(a)/391.95 Using an unqualified driver, a driver who has
tested positive for controlled substances, or refused to be tested
as required. (acute)
Sec. 391.11(b)(6) Using a physically unqualified driver. (acute)
Sec. 391.15(a) Using a disqualified driver. (acute)
Sec. 391.45(a) Using a driver not medically examined and certified.
(critical)
Sec. 391.45(b) Using a driver not medically examined and certified
each 24 months. (critical)
Sec. 391.51(a) Failing to maintain driver qualification file on
each driver employed. (critical)
Sec. 391.51(b)(1) Failing to maintain medical examiner's
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(1) Failing to maintain medical examiner's
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(3) Failing to maintain inquiries into driver's
driving record in driver's qualification file. (critical)
Sec. 391.51(d)(1) Failing to maintain medical examiner's
certificate in driver's qualification file. (critical)
Sec. 391.87(f)(5) Failing to retain in the driver's qualification
file test finding, either ``Negative'' and, if ``Positive'', the
controlled substances identified. (critical)
Sec. 391.93(a) Failing to implement a controlled substances testing
program. (acute)
Sec. 391.99(a) Failing to require a driver to be tested for the use
of controlled substances, upon reasonable cause. (acute)
Sec. 391.103(a) Failing to require a driver-applicant whom the
motor carrier intends to hire or use to be tested for the use of
controlled substances as a pre-qualification condition. (critical)
Sec. 391.109(a) Failing to conduct controlled substance testing at
a 50% annualized rate. (critical)
Sec. 391.115(c) Failing to ensure post-accident controlled
substances testing is conducted and conforms with 49 CFR Part 40.
(critical)
Sec. 392.2 Operating a motor vehicle not in accordance with the
laws, ordinances, and regulations of the jurisdiction in which it is
being operated. (critical)
Sec. 392.4(b) Requiring or permitting a driver to drive while under
the influence of, or in possession of, a narcotic drug, amphetamine,
or any other substance capable of rendering the driver incapable of
safely operating a motor vehicle. (acute)
Sec. 392.5(b)(1) Requiring or permitting a driver to drive a motor
vehicle while under the influence of, or in possession of, an
intoxicating beverage. (acute)
Sec. 392.5(b)(2) Requiring or permitting a driver who has consumed
an intoxicating beverage within 4 hours to operate a motor vehicle.
(acute)
Sec. 392.6 Scheduling a run which would necessitate the vehicle
being operated at speeds in excess of those prescribed. (critical)
Sec. 392.9(a)(1) Requiring or permitting a driver to drive without
the vehicle's cargo being properly distributed and adequately
secured. (critical)
Sec. 395.1(i)(1)(i) Requiring or permitting a driver to drive more
than 15 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(ii) Requiring or permitting a driver to drive
after having been on duty 20 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iii) Requiring or permitting driver to drive after
having been on duty more than 70 hours in 7 consecutive days.
(Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iv) Requiring or permitting driver to drive after
having been on duty more than 80 hours in 8 consecutive days.
(Driving in Alaska.) (critical)
Sec. 395.3(a)(1) Requiring or permitting driver to drive more than
10 hours. (critical)
Sec. 395.3(a)(2) Requiring or permitting driver to drive after
having been on duty 15 hours. (critical)
Sec. 395.3(b) Requiring or permitting driver to drive after having
been on duty more than 60 hours in 7 consecutive days. (critical)
Sec. 395.3(b) Requiring or permitting driver to drive after having
been on duty more than 70 hours in 8 consecutive days. (critical)
Sec. 395.8(a) Failing to require driver to make a record of duty
status. (critical)
Sec. 395.8(e) False reports of records of duty status. (critical)
Sec. 395.8(l) Failing to require driver to forward within 13 days
of completion, the original of the record of duty status. (critical)
Sec. 395.8(k)(1) Failing to preserve driver's record of duty status
for 6 months. (critical)
Sec. 395.8(k)(1) Failing to preserve driver's records of duty
status supporting documents for 6 months. (critical)
Sec. 396.3(b) Failing to keep minimum records of inspection and
vehicle maintenance. (critical)
Sec. 396.9(c)(2) Requiring or permitting the operation of a motor
vehicle declared ``out-of-service'' before repairs were made.
(acute)
Sec. 396.11(a) Failing to require driver to prepare driver vehicle
inspection report. (critical)
Sec. 396.11(c) Failing to correct Out-of-Service defects listed by
driver in a driver vehicle inspection report. (acute)
Sec. 396.17(a) Using a commercial motor vehicle not periodically
inspected. (critical)
Sec. 396.17(g) Failing to promptly repair parts and accessories not
meeting minimum periodic inspection standards. (acute)
Sec. 397.5(a) Failing to ensure a motor vehicle containing Class A
or B explosives, (Class 1.1, 1.2, or 1.3) is attended at all times
by its driver or a qualified representative. (acute)
Sec. 397.7(a)(1) Parking a motor vehicle containing Class A or B
explosives (1.1, 1.2, 1.3) within 5 feet of traveled portion of
highway. (critical)
Sec. 397.7(b) Parking a motor vehicle containing hazardous
material(s) within 5 feet of traveled portion of highway or street.
(critical)
Sec. 397.13(a) Permitting a person to smoke or carry a lighted
cigarette, cigar or pipe within 25 feet of a motor vehicle
containing explosives, oxidizing materials, or flammable materials.
(critical)
Sec. 397.19(a) Failing to furnish driver of motor vehicle
transporting Class A or B explosives (Class 1.1, 1.2, 1.3) with a
copy of the rules of Part 397 and/or emergency response
instructions. (critical)
Sec. 397.67(d) Requiring or permitting the operation of a motor
vehicle containing Division 1.1, 1.2, or 1.3 (explosive) material
that is not accompanied by a written route plan. (critical)
[[Page 28835]]
Sec. 171.15 Carrier failing to give immediate telephone notice of
an incident involving hazardous materials. (critical)
Sec. 171.16 Carrier failing to make a written report of an incident
involving hazardous materials. (critical)
Sec. 177.800(a) Failing to instruct a category of employees in
hazardous materials regulations. (critical)
Sec. 177.817(a) Transporting a shipment of hazardous materials not
accompanied by a properly prepared shipping paper. (critical)
Sec. 177.817(e) Failing to maintain proper accessibility of
shipping papers. (critical)
Sec. 177.823(a) Moving a transport vehicle containing hazardous
material that is not properly marked or placarded. (critical)
Sec. 177.841(e) Transporting a package bearing a poison label in
the same transport vehicle with material marked or known to be
foodstuff, feed, or any edible material intended for consumption by
humans or animals. (acute)
Sec. 180.407(a) Transporting a shipment of hazardous material in
cargo tank that has not been inspected or retested in accordance
with Sec. 180.407. (critical)
Sec. 180.407(c) Failing to periodically test and inspect a cargo
tank. (critical)
Sec. 180.417 Failing to mark a cargo tank which passed an
inspection or test required by Sec. 180.407. (critical)
Sec. 180.417(a)(1) Failing to retain cargo tank manufacturer's data
report certificate and related papers, as required. (critical)
Sec. 180.417(a)(2) Failing to retain copies of cargo tank
manufacturer's certificate and related papers (or alternative
report) as required. (critical)
[FR Doc. 97-13873 Filed 5-27-97; 8:45 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 97-13872 Review of Regulations on Boating Safety
[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28824-28826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13872]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 95, 100, 173, 174, 175, 177, 179, 181, and 183
46 CFR Part 25
[CGD 97-029]
Review of Regulations on Boating Safety
AGENCY: Coast Guard, DOT.
ACTION: Request for comments.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard will conduct a comprehensive review of
currently effective boating safety regulations during and after the
meeting of the National Boating Safety Advisory Council (NBSAC) in
October 1997. This Request describes which of them will come within the
review and solicits comments from the boating community in response to
issues that this Request will pose. The review is to determine which if
any of those regulations need change. The Coast Guard will provide a
summary of the comments received to the members of the NBSAC for them
to consider before that meeting, and will itself consider all relevant
comments as it determines which if any of those regulations need
change.
DATES: Comments must reach the Coast Guard on or before July 28, 1997.
ADDRESSES: You may mail comments to the Executive Secretary, Marine
Safety Council (G-LRA, 3406) [CGD 97-029], U.S. Coast Guard
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or
deliver them to room 3406 at the same address between 9:30 a.m. and 2
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-267-1477.
The Executive Secretary maintains the public docket for this
regulatory review. Comments, and documents as indicated in this
preamble, will become part of this docket and will be available for
inspection or copying at room 3406,
[[Page 28825]]
U.S. Coast Guard Headquarters, between 9:30 a.m. and 2 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Carlton Perry, Project Manager, Office
of Boating Safety, Program Management Division, 202-267-0979. You may
obtain a copy of this Request by calling the Coast Guard Customer
Infoline at 1-800-368-5647, or on the Internet Office of Boating Safety
Web Site at URL address http://www.access.digex.net/
prostech/uscg/.
SUPPLEMENTARY INFORMATION:
Background and Purpose
NBSAC is an advisory committee created under 46 U.S.C. 13110(a) and
section 304(f) of Pub. L. 104-324. It advises the Coast Guard on
substantive matters of boating safety. It comprises 21 members drawn
equally from 3 segments of the boating community: the boating industry;
State officials on boating safety; and representatives of national
recreational boating organizations and of the general public. The Coast
Guard must consult it in the formulation of boating safety regulations.
The Coast Guard conducted comprehensive reviews of its boating
safety regulations in conjunction with meetings of NBSAC in May 1981,
1986, and 1992. It asked NBSAC to determine whether the regulations
were still necessary, beneficial, cost-effective, and in step with
current technology. These reviews led NBSAC to make numerous
recommendations to improve and update specific provisions in the
regulations. The next comprehensive review is due at the meeting of
NBSAC in October 1997. (The Coast Guard will publish details of the
exact time and place of the meeting in the Federal Register at a later
date. The meeting will be open to the public.) The review will
encompass currently effective regulations issued under the authority of
the Assistant Commandant for Operations, at Coast Guard Headquarters,
or of his predecessors. It will not encompass any rules not yet final.
The review will encompass at least these rules:
Restrictions on and responsibilities of persons operating
recreational vessels while intoxicated (33 CFR part 95).
Requirements for persons organizing regattas and marine
parades to notify the Coast Guard and apply for permits before the
event (33 CFR part 100).
Requirements for operators of recreational vessels and for
States to number, or register, those vessels and report accidents (33
CFR parts 173 & 174).
Requirements for operators of recreational vessels to
carry personal flotation devices (PFDs) on the vessels (33 CFR part
175).
Requirements for operators of recreational vessels to
carry visual distress signals (VDSs) on the vessels (33 CFR part 175).
Requirements for operators of recreational vessels
regarding especially hazardous conditions (33 CFR part 177).
Requirements for manufacturers and importers of
recreational vessels and associated equipment to notify purchasers of
the vessels about safety defects and to recall products (33 CFR part
179).
Requirements for manufacturers and importers of
recreational vessels to certify compliance of boats and associated
equipment (33 CFR part 181, subpart B).
Requirements for manufacturers and importers of
recreational vessels to identify the vessels with hull identification
numbers (33 CFR part 181, subpart C).
Requirements for manufacturers of PFDs to furnish
informational pamphlets about the PFDs (33 CFR part 181, subpart G).
Requirements for manufacturers and importers of
recreational vessels to calculate and display safe capacities for
loading and powering (33 CFR part 183, subparts, B, C, D, and N).
Requirements for manufacturers and importers of recreation
vessels regarding standards for flotation of recreational vessels (33
CFR part 183, subparts, F, G, and H).
Requirements for manufacturers and importers of
recreational vessels regarding electrical and fuel systems (33 CFR part
183, subparts I and J).
Requirements for manufacturers and importers of
recreational vessels regarding powered and natural ventilation systems
(33 CFR part 183, subpart K).
Requirements for manufacturers and importers of outboard
engines to protect against the engines starting in gear (33 CFR part
183, subpart L).
Requirements for operators of recreational vessels to
carry fire extinguishers on the vessels (46 CFR subpart 25.30).
Requirements for operators of recreational vessels to
carry an acceptable means of backfire flame control on the vessels (46
CFR subpart 25.35).
Requirements for operators of recreational vessels
regarding operable ventilation systems on the vessels (33 CFR part 175,
subpart D; and 46 CFR subpart 25.40).
You may read copies of the boating safety regulations under review
at any of the many public libraries that carry the United States Code
of Federal Regulations. You may buy them from the Superintendent,
Government Printing Office, telephone: 202-512-2250; facsimile: 202-
512-1800. You may also read them on, and run copies of them from, the
Internet at URL address http://law.house.gov/cfrhelp.htm.
Request for Comments
The Coast Guard encourages interested person from all segments of
the boating community to participate in this regulatory review by
submitting written data, views, or arguments regarding any changes to
the currently effective boating safety regulations, including
elimination or revocation of any requirements. (This review is not
required by but is consistent with 5 U.S.C. 610, which directs agencies
to conduct periodic reviews of regulations they issue that have a
significant impact on a substantial number of small entities.) Persons
submitting comments should include their names and addresses, identify
this Request [CGD 97-029] and the specific provision in the regulation
to which each comment applies, state each change needed, and give all
reasons to support each change. Please submit two copies of all
comments and attachments in an unbound format, no larger than 8\1/2\ by
11 inches, suitable for copying and electronic filing. Persons wanting
acknowledgment of receipt of comments should enclose stamped, self-
addressed postcards or envelopes.
The Coast Guard is especially interested in receiving data, views,
and arguments on the following issues:
Need--Is there still a reasonable need for the
regulations? Is the problem that the regulation was originally intended
to solve still a problem?
Technical Accuracy--Has the regulation kept pace with the
technological, economic, or other relevant conditions? Would any
particular changes make it more effective in achieving its intended
goal?
Cost/Benefit--What are the costs, or other burdens or
adverse effects, of the regulation? What are the benefits of the
regulation in terms of person safety or other values? Do the benefits
outweigh the cost?
Problems--Are there any problems or complaints in
understanding or complying with the regulations?
Alternatives--Are there any nonregulatory ways to achieve
the goal
[[Page 28826]]
the regulation at lower cost, or lower burden or adverse effect?
The Coast Guard will summarize--and will provide to the members of
NBSAC for them to consider before the meeting in October 1997--all
comments received during the comment period in response to this
Request. It will consider all relevant comments in the formulation of
any changes to the boating safety regulations that may result from this
review.
Dated: May 21, 1997.
N.T. Saunders,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Operations.
[FR Doc. 97-13872 Filed 5-27-97; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 97-13870 Franchise Rule Public Workshop Conferences
[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28822-28824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13870]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 436
Franchise Rule Public Workshop Conferences
AGENCY: Federal Trade Commission.
ACTION: Public workshop conferences.
-----------------------------------------------------------------------
SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') will
hold six public workshop conferences in connection with the Advance
Notice of Proposed Rulemaking (``ANPR'') on the Trade Regulation Rule
entitled ``Disclosure Requirements and Prohibitions Concerning
Franchising and Business Opportunity Ventures,'' 16 CFR Part 436 (the
``Franchise Rule'' and ``Rule''). In addition, the Commission will
continue to accept comments on the ANPR until December 31, 1997.
DATES: The public workshop conferences will be held as follows:
----------------------------------------------------------------------------------------------------------------
Conf. No. Topics Location Dates
----------------------------------------------------------------------------------------------------------------
1..................... Trade Show Promoters...... Washington, DC.................. July 28, 29.
2..................... Business Opportunities.... Chicago, IL..................... Aug. 21, 22.
3..................... UFOC, Internet, New York, NY.................... Sept. 18, 19.
International Co-
Branding, Alternative Law
Enforcement.
4..................... Business Opportunities.... Dallas, TX...................... Oct. 20, 21.
5..................... UFOC, Internet, Seattle, WA..................... Nov. 6, 7.
International, Co-
Branding, Alternative Law
Enforcement.
6..................... Business Opportunities.... Washington, DC.................. Nov. 20, 21.
----------------------------------------------------------------------------------------------------------------
[[Page 28823]]
The first day of each conference will run from 9 a.m. until 5 p.m., and
the second day will run from 9 a.m. until 3 p.m. The first day of each
conference will consist of a roundtable discussion on the various
issues described below. Members of the public will also have the
opportunity to comment on the issues raised during the roundtable
discussions. The second day will be reserved for members of the general
public who wish to make statements for the record on any of the topics
raised by the ANPR.
ADDRESSES: Parties interested in participating in one or more of the
Public Workshop Conferences should submit a request to participate on
or before July 1, 1997, to Myra Howard, Division of Marketing
Practices, Federal Trade Commission, Washington, DC 20580. The
Commission will also accept requests to participate received at the
following E-mail address: ``[email protected]'', and at the Commission's
ANPR hotline telephone number: (202) 326-3573.
FOR FURTHER INFORMATION CONTACT:
Steven Toporoff, (202) 326-3135, or Myra Howard, (202) 326-2047,
Division of Marketing Practices, Bureau of Consumer Protection, Federal
Trade Commission, 6th Street and Pennsylvania Avenue, NW., Washington,
DC. 20580.
SUPPLEMENTARY INFORMATION:
Part A--Overview of the Commission's ANPR
On February 28, 1997, the Commission published an ANPR announcing
the Commission's proposal to commence a rulemaking proceeding to amend
the Franchise Rule. 62 FR 9115 (February 28, 1997). The ANPR requested
comment on whether the Franchise Rule should be amended to: (1) Revise
the Rule's disclosure requirements based upon the Uniform Franchise
Offering Circular Guidelines (``UFOC'') model; (2) distinguish between
disclosures for business opportunities and for franchises; (3) exempt
trade show promoters from liability as ``brokers; '' (4) require trade
show exhibitors to have their disclosure documents available for public
inspection; (5) require franchisors to inform prospective franchisees
that franchisors are permitted to disclose earnings information, and
where franchisors elect not to do so, to require such franchisors to
state that they make no earnings representations and do not authorize
their salespersons to make them; (6) clarify that the Rules does not
apply to the sale of franchises to be located outside the United
States; (7) clarify the applicability of the Rule to the sale of
franchises over the Internet; and (8) clarify the applicability of the
Rule to the sale of co-branded franchise systems. In addition, the ANPR
asked whether the Commission should develop a program to reduce or
waive civil penalties for certain violations of the Franchise Rule.
Part B--Extension of Comment Period
The ANPR stated that comments must be submitted on or before April
30, 1997. The Commission is now extending the comment period until
after the final public workshop conference is held, as set forth below,
in order to provide the public with maximum opportunity to participate
in the rulemaking process. Therefore, submissions of views, drafts of
proposed amendments to the Rule, and any other written, oral, or visual
materials will be accepted throughout the conference period, and up
until December 31, 1997. All such comments will also be made part of
the public record.
Part C--Overview of the Public Workshop Conferences
The ANPR announced that Commission staff would hold several public
workshop conferences. These conferences are intended to serve several
purposes: (1) To allow Commission staff and interested parties the
opportunity to discuss openly issues raised in the ANPR and in the
comments to the ANPR; (2) to offer the general public an opportunity to
make statements on the record concerning the issues raised in the ANPR;
and (3) to assist Commission staff in drafting a proposed amended rule.
Accordingly, the first day of each public workshop conference will
consist of a roundtable discussion centered on a specific topic or
topics, as noted below. In addition to discussing and analyzing the
issues, the participants will be asked to offer concrete suggestions on
revising the Rule in those specific areas. Participation by the general
public the first day will be limited to a discussion of the topics
raised that day. The second day of each conference will be reserved for
the general public to share their comments and concerns about any of
the issues raised in the ANPR. Statements by members of the general
public may be limited to a few minutes, depending on the number of
persons who wish to make statements. All discussions and comments will
be transcribed and placed on the public record.
The Commission staff will select a limited number of parties to
join in the roundtable discussions. To the extent possible, Commission
staff will select parties to represent the following affected
interests: franchisors; franchisees; business opportunity promoters;
business opportunity purchasers; franchise and business opportunity
trade show organizers; franchise and business opportunity brokers;
franchisor, franchise, business opportunity, and other trade or
industry associations; franchise consultants; economists and
academicians; Federal, State and local law enforcement and regulatory
authorities; and any other interests that Commission staff may identify
and deem appropriate for representation.
Parties representing the above-referenced interests will be
selected on the basis of the following criteria:
1. The party must submit a comment. First priority will be given to
those parties who submit their comment by July 1, 1997. After that
date, parties may be considered as participants on a space-available
basis.
2. The party must also notify Commission staff in writing, via E-
mail, or via the hotline number, of its interest in being a roundtable
participant and, if required, authorization to represent an affected
interest, on or before July 1, 1997. The party must also identify which
conference or conferences that party wishes to attend. Those parties
submitting their requests after July 1, 1997, will also be considered
on a space-available basis.
3. The party's participation would promote a balance of interests
represented at the conference.
4. The party's participation would promote the consideration and
discussion of the topics being discussed at the conference.
5. The party has experience or expertise in activities affected by
the Franchise Rule.
6. The party adequately reflects the views of the affected
interest(s).
7. The number of parties selected will not be so large as to
inhibit effective discussion among them.
The Commission strongly encourages all interested parties to
participate in the public workshop conferences, as the transcripts from
the conferences will be an important part of the public record in this
rulemaking proceeding. Individuals wishing to make statements on the
record the second day of any conference need not submit a request to
participate, and the Commission will make every effort to provide time
for all members of the general public to make statements regarding any
of the ANPR issues. Each conference will be facilitated by a Commission
staff member. Prior to each conference,
[[Page 28824]]
participants will be provided with tentative agendas as well as copies
of the comments submitted in response to the ANPR.
Part D--Schedule of Public Workshop Conferences
The first public workshop will be held on July 28 and 29, 1997, at
the Federal Trade Commission, Room 432, 6th Street and Pennsylvania
Avenue, NW., Washington, DC 20580. The roundtable discussion on July
28, 1997, will focus on the possible exemption of trade show promoters
from the Rule's disclosure requirements and the development of possible
voluntary industry standards.
The second public workshop conference will be held on August 21 and
22, 1997, at the Chicago Regional Office, Federal Trade Commission, 55
E. Monroe Street, Suite 1860, Chicago, Illinois 60603. The roundtable
discussion on August 21, 1997, will focus on revisions to the business
opportunity section of the Rule, including a definition of the term
``business opportunity.''
The third public workshop conference will be held on September 18
and 19, 1997, at the Jacob Javits Federal Building, 26 Federal Plaza,
Floor 36, Conference Room 3604, New York, NY 10278. The roundtable
discussion on September 18, 1997, will focus on whether the Commission
should revise the Rule based upon the UFOC model and possible
modifications; the sale of franchises through the Internet; the sale of
co-branded franchise systems; and alternative approaches to Franchise
Rule law enforcement.
The fourth public workshop conference will be held on October 20
and 21, 1997, at the Dallas Regional Office, Federal Trade Commission,
1999 Bryan Street, Suite 2150, Dallas, Texas 75201. The roundtable
discussion on October 20, 1997, will focus on proposals for a revised
definition of the term ``business opportunity,'' and specific proposed
disclosure requirements for business opportunity sellers.
The fifth public workshop conference will be held on November 6 and
7, 1997, at the Seattle Regional Office, Federal Trade Commission, 915
Second Avenue, Suite 2886, Seattle, Washington 98174. The roundtable
discussion on November 6, 1997, will focus on whether the Commission
should revise the Rule based upon the UFOC model and possible
modifications; the sale of franchises through the Internet; the sale of
co-branded franchise systems; and alternative approaches to Franchise
Rule law enforcement.
The final public workshop conference will be held on November 20
and 21, 1997, at the Federal Trade Commission, Room 432, 6th Street and
Pennsylvania Avenue, NW., Washington, DC 20580. The roundtable
discussion on November 20, 1997, will focus on drafting revised
business opportunity disclosures.
List of Subjects in 16 CFR Part 436
Advertising, Business and industry, Franchising, Trade practices.
Authority: 15 U.S.C. 41-58.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 97-13870 Filed 5-27-97; 8:45 am]
BILLING CODE 6750-01-M
Complete official Federal Register PDF
FR Doc. 97-13848 Geological and Geophysical (G&G) Explorations of the Outer Continental Shelf
[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Page 28824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13848]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 251
RIN 101-AC10
Geological and Geophysical (G&G) Explorations of the Outer
Continental Shelf
AGENCY: Minerals Management Service (MMS), Interior.
ACTION: Extending comment period for proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document extends to July 29, 1997 the reopening of the
comment period published on May 1, 1997 (62 FR 23705), the deadline for
the submission of comments on the proposed revision of requirements
governing Geological and Geophysical Explorations of the Outer
Continental Shelf, that was published February 11, 1997.
DATES: We will consider all comments received by July 29, 1997. We will
review comments at that time and may not fully consider comments
received after July 29, 1997.
ADDRESSES: Mail or hand-carry written comments to the Department of the
Interior; Minerals Management Service; 381 Elden Street; Mail Stop
4700; Herndon, Virginia 20170-4817; Attention: Rules Processing Team.
FOR FURTHER INFORMATION CONTACT:
Kumkum Ray, Engineering and Operations Division, at (703) 787-1600.
SUPPLEMENTARY INFORMATION: On May 15, 1997 MMS met with industry
representatives to discuss issues raised by the proposed revisions of
MMS's requirements governing geological and geophysical explorations of
the Outer Continental Shelf that were published February 11, 1997 (62
FR 6149). On the basis of the discussion MMS is extending the comment
period to allow respondents more time to prepare detailed and
comprehensive comments. We will publish a notice in the Federal
Register to announce a meeting date and place to further discuss this
rulemaking.
Dated: May 21, 1997.
E.P. Danenberger,
Chief, Engineering and Operations Division.
[FR Doc. 97-13848 Filed 5-27-97; 8:45 am]
BILLING CODE 4310-MR-M
Complete official Federal Register PDF
FR Doc. 97-13847 Airworthiness Directives; Bombardier Model CL-44 Series Airplanes
[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28813-28814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13847]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 62, No. 102 / Wednesday, May 28, 1997 /
Proposed Rules
[[Page 28813]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 97-NM-37-AD]
RIN 2120-AA64
Airworthiness Directives; Bombardier Model CL-44 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to all Bombardier Model CL-44 series
airplanes. This proposal would require revising the Airplane Flight
Manual (AFM) to modify the limitation that prohibits positioning the
power levers below the flight idle stop during flight, and to provide a
statement of the consequences of positioning the power levers below the
flight idle stop during flight. This proposal is prompted by incidents
and accidents involving airplanes equipped with turboprop engines in
which the ground propeller beta range was used improperly during
flight. The actions specified by the proposed AD are intended to
prevent loss of airplane controllability, or engine overspeed and
consequent loss of engine power caused by the power levers being
positioned below the flight idle stop while the airplane is in flight.
DATES: Comments must be received by July 7, 1997.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 97-NM-37-AD, 1601 Lind Avenue, SW., Renton,
Washington 98055-4056. Comments may be inspected at this location
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal
holidays.
This information may be examined at the FAA, Transport Airplane
Directorate, 601 Lind Avenue, SW., Renton, Washington; or at the FAA,
Engine and Propeller Directorate, New York Aircraft Certification
Office, 10 Fifth Street, Third Floor, Valley Stream, New York.
FOR FURTHER INFORMATION CONTACT: Peter LeVoci, Flight Test Pilot,
Systems and Flight Test Branch, ANE-172, FAA, Engine and Propeller
Directorate, New York Aircraft Certification Office, 10 Fifth Street,
Third Floor, Valley Stream, New York 11581; telephone (516) 256-7514;
fax (516) 568-2716.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 97-NM-37-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 97-NM-37-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
In recent years, the FAA has received reports of 14 incidents and/
or accidents involving intentional or inadvertent operation of the
propellers in the ground beta range during flight on airplanes equipped
with turboprop engines. (For the purposes of this proposal, Beta is
defined as the range of propeller operation intended for use during
taxi, ground idle, or reverse operations as controlled by the power
lever settings aft of the flight idle stop.)
Five of the fourteen in-flight beta occurrences were classified as
accidents. In each of these five cases, operation of the propellers in
the beta range occurred during flight. Operation of the propellers in
the beta range during flight, if not prevented, could result in loss of
airplane controllability, or engine overspeed with consequent loss of
engine power.
Communication between the FAA and the public during a meeting held
on June 11-12, 1996, in Seattle, Washington, revealed a lack of
consistency of the information on in-flight beta operation contained in
the FAA-approved airplane flight manual (AFM) for airplanes that are
not certificated for in-flight operation with the power levers below
the flight idle stop. (Airplanes that are certificated for this type of
operation are not affected by the above-referenced conditions.)
U.S. Type Certification of the Airplane
This airplane model is manufactured in Canada and is type
certificated for operation in the United States under the provisions of
Section 21.29 of the Federal Aviation Regulations and the applicable
bilateral airworthiness agreement. The FAA has reviewed all available
information, and determined that AD action is necessary for products of
this type design that are certificated for operation in the United
States.
FAA's Determinations
The FAA has examined the circumstances and reviewed all available
information related to the incidents and accidents described
previously. The FAA finds that the Limitations Section of the AFM's for
certain airplanes must be revised to prohibit positioning the power
levers below the flight idle stop while the airplane is in flight, and
to provide a statement of the consequences of
[[Page 28814]]
positioning the power levers below the flight idle stop. The FAA has
determined that the affected airplanes include those that are equipped
with turboprop engines and that are not certificated for in-flight
operation with the power levers below the flight idle stop. Since
Bombardier Model CL-44 series airplanes meet these criteria, the FAA
finds that the AFM for these airplanes must be revised to include the
limitation and statement of consequences described previously.
Explanation of the Requirements of the Proposed AD
Since an unsafe condition has been identified that is likely to
exist or develop on other Bombardier Model CL-44 series airplanes of
the same type design, the proposed AD would require revising the
Limitations Section of the AFM to modify the limitation that prohibits
the positioning of the power levers below the flight idle stop while
the airplane is in flight, and to add a statement of the consequences
of positioning the power levers below the flight idle stop while the
airplane is in flight.
Interim Action
This is considered interim action until final action is identified,
at which time the FAA may consider further rulemaking.
Cost Impact
The FAA estimates that 1 Bombardier Model CL-44 series airplane of
U.S. registry would be affected by this proposed AD, that it would take
approximately 1 work hour per airplane to accomplish the proposed
actions, and that the average labor rate is $60 per work hour. Based on
these figures, the cost impact of the proposed AD on U.S. operators is
estimated to be $60 for the one affected airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the proposed requirements of
this AD action, and that no operator would accomplish those actions in
the future if this AD were not adopted.
Regulatory Impact
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Bombardier, Inc. (Formerly Canadair): Docket 97-NM-37-AD.
Applicability: All Model CL-44 series airplanes, certificated in
any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent loss of airplane controllability, or engine overspeed
and consequent loss of engine power caused by the power levers being
positioned below the flight idle stop while the airplane is in
flight, accomplish the following:
(a) Within 30 days after the effective date of this AD, revise
the Limitations Section of the FAA-approved Airplane Flight Manual
(AFM) to include the following statements. This action may be
accomplished by inserting a copy of this AD into the AFM.
Positioning of power levers below the flight idle stop while the
airplane is in flight is prohibited. Such positioning may lead to
loss of airplane control or may result in an overspeed condition and
consequent loss of engine power.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, New York Aircraft Certification
Office (ACO), FAA, Engine and Propeller Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, New York ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the New York ACO.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on May 19, 1997.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 97-13847 Filed 5-27-97; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 97-13839 Modification of Class E Airspace; Grafton, ND, Grafton Municipal Airport
[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28814-28815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13839]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 97-AGL-23]
Modification of Class E Airspace; Grafton, ND, Grafton Municipal
Airport
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to modify Class E airspace at Grafton,
ND. A Global Positioning System (GPS) standard instrument approach
procedure (SIAP) to Runway 17 and Amendment 1 to the GPS SIAP to Runway
35 have been developed for Grafton Municipal Airport. Controlled
airspace extending upward from 700 to 1200 feet above ground level
(AGL) is needed to contain aircraft executing the approach. The
intended affect of this proposal is to provide segregation of aircraft
using instrument approach procedures in instrument conditions
[[Page 28815]]
from other aircraft operating in visual weather conditions.
DATES: Comments must be received on or before July 14, 1997.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Office of the Assistant Chief Counsel, AGL-7,
Rules Docket No. 97-AGL-23, 2300 East Devon Avenue, Des Plaines,
Illinois 60018.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Federal Aviation Administration, 2300 East Devon Avenue,
Des Plaines, Illinois. An informal docket may also be examined during
normal business hours at the Air Traffic Division, Operations Branch,
Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines,
Illinois.
FOR FURTHER INFORMATION CONTACT:
Manuel A. Torres, Air Traffic Division, Operations Branch, AGL-530,
Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines,
Illinois 60018, telephone (847) 294-7568.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 97-
AGL-23.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the Rules Docket, FAA, Great Lakes Region, Office of
the Assistant Chief Counsel, 2300 East Devon Avenue, Des Plaines,
Illinois, both before and after the closing date for comments. A report
summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRM's
Any person may obtain a copy of the Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center, APA-230,
800 Independence Avenue, S.W., Washington, DC 20591, or by calling
(202) 267-3484. Communications must identify the notice number of this
NPRM. Persons interested in being placed on a mailing list for future
NPRM's should also request a copy of Advisory Circular No. 11-2A, which
describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to modify Class E airspace at
Grafton, ND; this proposal would provide adequate Class E airspace for
operators executing the GPS Runway 17 SIAP and GPS Runway 35 SIAP at
Grafton Municipal Airport. Controlled airspace extending upward from
700 to 1200 feet AGL is needed to contain aircraft executing the
approach. The intended affect of this action is to provide segregation
of aircraft using instrument approach procedures in instrument
conditions from other aircraft operating in visual weather conditions.
The area would be depicted on appropriate aeronautical charts thereby
enabling pilots to circumnavigate the area or otherwise comply with IFR
procedures. Class E airspace designations for airspace areas extending
upward from 700 feet or more above the surface of the earth are
published in paragraph 6005 of FAA Order 7400.9D dated September 4,
1996, and effective September 16, 1996, which is incorporated by
reference in 14 CFR 71.1. The Class E airspace designation listed in
this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore this, proposed regulation--(1) Is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule will not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1995-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9D, Airspace Designations and
Reporting Points, dated September 4, 1996, and effective September 16,
1996, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
AGL ND E5 Grafton, ND [Revised]
Grafton Municipal Airport, ND
(lat. 48 deg.24'17''N, long. 97 deg.22'15''W)
That airspace extending upward from 700 feet above the surface
within a 6.5-mile radius of the Grafton Municipal Airport and within
1 mile each side of the 360 deg. bearing extending from the 6.5-mile
radius to 9 miles north of the airport and within 1 mile each side
of the 180 deg. bearing extending from the 6.5-mile radius to 9
miles south of the airport.
* * * * *
Issued in Des Plaines, Illinois on May 14, 1997.
Maureen Woods,
Manager, Air Traffic Division.
[FR Doc. 97-13839 Filed 5-27-97; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 97-13749 Control of Air Pollution From Motor Vehicles and New Motor Vehicle Engines; Modification of Federal On-board Diagnostic Regulations for Light-Duty Vehicles and Light-Duty Trucks; Extension of Acceptance of California OBD II Requirements
[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28932-28945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13749]
[[Page 28931]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 86
Control of Air Pollution From Motor Vehicles and New Motor Vehicle
Engines; Modification of Federal On-board Diagnostic Regulations for
Light-Duty Vehicles and Light-Duty Trucks; Extension of Acceptance of
California OBD II Requirements; Proposed Rule
Federal Register / Vol. 62, No. 102 / Wednesday, May 28, 1997 /
Proposed Rules
[[Page 28932]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 86
[FRL-5827-6]
Control of Air Pollution From Motor Vehicles and New Motor
Vehicle Engines; Modification of Federal On-board Diagnostic
Regulations for Light-Duty Vehicles and Light-Duty Trucks; Extension of
Acceptance of California OBD II Requirements
AGENCY: Environmental Protection Agency.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: Today's action proposes modifications to the federal on-board
diagnostics regulations, including: harmonizing the emission levels
above which a component or system is considered malfunctioning (i.e.,
the malfunction thresholds) with those of the California Air Resources
Board (CARB) OBD II requirements; mandating that EPA OBD systems fully
evaluate the entire emission control system, including the evaporative
emission control system; indefinitely extending the allowance of
deficiencies for federal OBD vehicles; indefinitely extending the
allowance of optional compliance with the California OBD II
requirements for federal OBD certification while also updating the
allowed version of those California OBD II regulations to the most
recently revised version; extending the current flexibility afforded
alternate fueled vehicles through the 2004 model year rather than
providing that flexibility only through the 1998 model year; updating
the incorporation by reference of several recommended practices
developed by the Society of Automotive Engineers (SAE) to incorporate
recently published versions, while also incorporating by reference two
standardization protocols developed by the International Organization
for Standardization (ISO). OBD systems in general provide substantial
ozone benefits.
DATES: Comments must be received on or before July 28, 1997. A public
hearing will be held on July 9, 1997. The hearing will begin at 10:00
a.m. and continue until all testimony has been presented. Requests to
present oral testimony must be received on or before June 27, 1997.
ADDRESSES: Written comments should be submitted (in duplicate if
possible) to: the EPA, Air Docket, Room M-1500 (Mail Code 6102),
Waterside Mall, Attn: Docket A-96-32, 401 M Street, SW., Washington, DC
20460.
Materials relevant to this rulemaking are contained in Docket No.
A-96-32. The docket is located at The Air Docket, 401 M. Street, SW.,
Washington, DC 20460, and may be viewed in room M1500 between 8:00 a.m.
and 5:30 p.m., Monday through Friday. The telephone number is (202)
260-7548 and the facsimile number is (202) 260-4400. A reasonable fee
may be charged by EPA for copying docket material. The hearing will be
held at the Holiday Inn North Campus, 3600 Plymouth Road, Ann Arbor,
MI.
FOR FURTHER INFORMATION CONTACT: Holly Pugliese, Vehicle Programs and
Compliance Division, U.S. Environmental Protection Agency, 2565
Plymouth Road, Ann Arbor, Michigan 48105, Telephone 313-668-4288, or
Internet e-mail at ``[email protected].''
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Electronic Availability
II. Introduction and Background
III. Requirements of the Proposed Rule
A. Federal OBD Malfunction Thresholds and Monitoring
Requirements
B. Similar Operating Conditions Window
C. Extension of Allowance of California OBD II
D. Extension of Allowance of OBD Deficiencies for Federal OBD
Vehicles
E. Provisions for Alternate Fueled Vehicles
F. Applicability
G. Update of Materials Incorporated by Reference
H. Certification Provisions
IV. Discussion of Issues
A. Federal OBD Malfunction Thresholds
B. Similar Operating Conditions Window
C. Expanded Federal OBD Monitoring Requirements
D. Extension of Allowance of California OBD II
E. Extension of Allowance of OBD Deficiencies for Federal OBD
Vehicles
F. Diagnostic Readiness Codes
G. EPA Recall Policy
H. Extension of Provisions for Alternate Fueled Vehicles
I. Update of Materials Incorporated by Reference
V. Cost Effectiveness
VI. Public Participation
A. Summary of Specific Comments Requested by EPA
B. Comments and the Public Docket
C. Public Hearing
VII. Administrative Requirements
A. Executive Order 12866
B. Reporting and Recordkeeping Requirements
C. Impact on Small Entities
D. Unfunded Mandates Act
I. Electronic Availability
Electronic copies of the preamble and the regulatory text of this
final rulemaking are available via the Internet on the Office of Mobile
Sources (OMS) Home Page (http://www.epa.gov/OMSWWW/). Users can find
OBD related information and documents through the following path once
they have accessed the OMS Home Page: ``Automobiles,'' ``I/M & OBD,''
``On-Board Diagnostics Files.''
Electronic copies of the preamble and the regulatory text of this
final rulemaking are also available on the Office of Air Quality
Planning and Standards (OAQPS) Technology Transfer Network Bulletin
Board System (TTN BBS). Users are able to access and download TTN BBS
files on their first call. After logging onto TTN BBS, to navigate
through the BBS to the files of interest, the user must enter the
appropriate command at each of a series of menus. The steps required to
access information on this rulemaking are listed below. The service is
free, except for the cost of the phone call.
TTN BBS: 919-541-5742 (1,200--14,400 bps, no parity, eight data
bits, one stop bit). Voice help: 919-541-5384 Internet address: TELNET
ttnbbs.rtpnc.epa.gov Off-line: Mondays from 8:00-12:00 Noon ET.
1. Technology Transfer Network Top Menu: GATEWAY TO TTN TECHNICAL
AREAS (Bulletin Boards) (Command: T)
2. TTN TECHNICAL INFORMATION AREAS: OMS-Mobile Sources Information
(Command: M)
3. OMS BBS === MAIN MENU FILE TRANSFERS: Rulemaking & Reporting
(Command: K)
4. RULEMAKING PACKAGES: <7> Inspection & Maintenance (Command: 7)
5. Inspection & Maintenance Rulemaking Areas: File Area # . . . On-
Board Diagnostics (Command: 2)
At this stage, the system will list all available OBD Review files.
To download a file, select a transfer protocol which will match the
terminal software on your computer, then set your own software to
receive the file using that same protocol.
If unfamiliar with handling compressed (i.e., ZIP'd) files, go to
the TTN top menu, System Utilities (Command: 1) for information and the
necessary program to download in order to unZIP the files of interest
after downloading to your computer. After getting the files you want
onto your computer, you can quit TTN BBS with the oodbye command.
II. Introduction and Background
On February 19, 1993, pursuant to Clean Air Act section 202(m), 42
U.S.C. Sec. 7521(m), the EPA published a final
[[Page 28933]]
rulemaking (58 FR 9468) requiring manufacturers of light-duty vehicles
(LDVs) and light-duty trucks (LDTs) to install on-board diagnostic
(OBD) systems on such vehicles beginning with the 1994 model year. The
regulations promulgated in that final rulemaking require that
manufacturers install OBD systems which monitor emission control
components for any malfunction or deterioration causing exceedance of
certain emission thresholds, and alert the vehicle operator to the need
for repair. That rulemaking also requires that, when a malfunction
occurs, diagnostic information must be stored in the vehicle's computer
to assist the technician in diagnosis and repair.
Additionally, the original federal OBD regulations provide an
allowance for manufacturers to satisfy federal OBD requirements through
the 1998 model year by installing systems satisfying the California OBD
II requirements pertaining to those model years. Beginning with the
1999 model year, manufacturers are required to satisfy the unique
requirements of federal OBD.
In August 1996, EPA published a final rulemaking (61 FR 45898)
updating the version of the California OBD II requirements that are
acceptable for federal OBD compliance demonstration. The February 1993
final rulemaking allowed compliance with the 1992 version of California
OBD II (Mail-Out #92-56). California subsequently revised their OBD II
requirements in December of 1994. The August 1996 federal rule served
to allow compliance with the revised California OBD II requirements
(Mail-Out #95-34) rather than the 1992 version of OBD II.
In today's action, EPA is proposing a revision to the federal OBD
regulations such that the allowance of compliance with the California
OBD II regulations (excluding anti-tampering provisions) extends
indefinitely, rather than applying only through the 1998 model year.
EPA seeks this revision as a result of comments from the domestic and
major import original equipment manufacturers who claim that the
efforts to meet the unique federal OBD requirements will divert
resources away from broader OBD development and calibration efforts.
EPA believes that the benefits of a robust OBD program outweigh the
benefits of the unique requirements of the federal OBD regulations. EPA
also believes, as was noted in an August 30, 1996 final rule (61 FR
45898), that the California OBD II program fully meets the requirements
of the 1990 Clean Air Act and fulfills the intent of the federal OBD
program.
Today's action also proposes to amend federal OBD requirements to
harmonize with those of the California OBD II requirements for 1999 and
later model year light-duty vehicles (LDVs) and light-duty trucks
(LDTs). This harmonization will result in federal OBD malfunction
thresholds consistent with the California OBD II thresholds, and it
will require monitoring of all emission-related powertrain components
similar to the California OBD II regulations. EPA believes that this
harmonization is consistent with the requirements of section 202(m) of
the CAA and will not compromise the stringency of the federal OBD
program.
Also being proposed is an extension of the current flexibility
within the federal OBD requirements for alternate fueled vehicles. In a
direct final rulemaking published in March 23, 1995 (60 FR 15242), EPA
made an allowance for alternate fueled vehicles to comply with OBD
requirements to the extent feasible through the 1998 model year, with
full compliance required in the 1999 model year. With today's proposal,
the flexibility provisions of the March 1995 direct final rule will
extend through the 2004 model year, with full compliance required in
the 2005 model year.
Also being proposed is the continuation of the allowance of
deficiencies for federal OBD compliance. This allowance will extend
indefinitely. Also being proposed is an updating of materials
incorporated by reference. These materials, developed by the Society of
Automotive Engineers (SAE) and the International Organization for
Standardization (ISO), have been incorporated or proposed for
incorporation in earlier rulemakings. More recent versions have been
developed and/or published and are proposed for incorporation today.
III. Requirements of the Proposed Rule
A. Federal OBD Malfunction Thresholds and Monitoring Requirements
EPA is proposing that, beginning in the 1999 model year, OBD
systems on spark-ignition LDVs and LDTs must be able to detect and
alert the driver of the following emission-related malfunctions or
deterioration: 1
---------------------------------------------------------------------------
\1\ The text presented here does not constitute proposed
regulatory text, which can be viewed immediately following this
preamble.
---------------------------------------------------------------------------
(1) Catalyst deterioration or malfunction before it results in an
increase in HC emissions equal to or greater than 1.5 times the HC
standard, as compared to the HC emission level measured using a
representative 4000 mile catalyst system.
(2) Engine misfire before it results in an exhaust emission
exceedance of 1.5 times the applicable standard for HC, CO or
NOX.
(3) Oxygen sensor deterioration or malfunction before it results in
an exhaust emission exceedance of 1.5 times the applicable standard for
HC, CO or NOX.
(4) Any vapor leak in the evaporative and/or refueling system
(excluding the tubing and connections between the purge valve and the
intake manifold) greater than or equal in magnitude to a leak caused by
a 0.040 inch diameter orifice shall also be detected. The absence of
evaporative purge air flow from the complete evaporative emission
control system shall also be detected.
(5) Any deterioration or malfunction occurring in a powertrain
system or component directly intended to control emissions, including
but not necessarily limited to, the exhaust gas recirculation (EGR)
system, if equipped, the secondary air system, if equipped, and the
fuel control system, singularly resulting in exhaust emissions
exceeding 1.5 times the applicable emission standard for HC, CO or
NOX shall also be detected.
(6) Any other deterioration or malfunction occurring in an
electronic emission-related powertrain system or component not
otherwise described above that either provides input to or receives
commands from the on-board computer, and has a measurable impact on
emissions or is used as part of the diagnostic strategy for any other
monitored system or component. Monitoring of components required by
this paragraph shall be satisfied by employing electrical circuit
continuity checks and, for computer input components, rationality
checks (input values within manufacturer specified ranges) and, for
output components, functionality checks (proper functional response to
computer commands).
For compression-ignition engines, paragraphs 2, 3, and 4 above
would not apply.
Upon detection of a malfunction, the malfunction indicator light
(MIL) is to be illuminated and a fault code stored no later than the
end of the next driving cycle during which monitoring occurs provided
the malfunction is again detected. The only exception to this would be
if, upon Administrator approval, a manufacturer is allowed to use a
diagnostic strategy that employs statistical algorithms for malfunction
determination (e.g., Exponentially Weighted Moving Averages (EWMA)).
The Administrator considers such strategies beneficial for some
monitors because they reduce the danger of
[[Page 28934]]
illuminating the MIL falsely since more monitoring events are used in
making pass/fail decisions. However, the Administrator will only
approve such strategies provided the number of trips required for a
valid malfunction determination is not excessive (e.g., six or seven
monitoring events). Manufacturers are required to determine the
appropriate operating conditions for diagnostic system monitoring with
the limitation that monitoring conditions are encountered at least once
during the first engine start portion of the applicable Federal Test
Procedure (FTP) or a similar test cycle as approved by the
Administrator.
B. Similar Operating Conditions Window
Also being proposed today is a revision to the engine operating
conditions window associated with extinguishing the MIL for engine
misfire and fuel system malfunctions. Currently, the federal OBD
regulations require that, upon MIL illumination and diagnostic trouble
code storage associated with engine misfire or fuel system
malfunctions, the manufacturer is allowed to extinguish the MIL
provided the same malfunction is not again detected during three
subsequent sequential trips during which engine speed is within 375
rpm, engine load is within 10 percent, and the engine's warm-up status
is the same as that under which the malfunction was first detected, and
no new malfunctions have been detected. Today's proposed revision is to
widen the engine load parameter from the current 10 percent value to 20
percent.
C. Extension of Allowance of California OBD II
EPA is proposing to extend the existing provision allowing optional
compliance with the California OBD II requirements, excluding the
California OBD II anti-tampering provisions, as satisfying federal OBD.
This allowance will continue indefinitely, rather than being eliminated
after the 1998 model year as currently specified. EPA is also proposing
to update the version of California OBD II allowed for optional federal
OBD compliance. Rather than the currently allowed CARB Mail-Out #95-34,
the allowed version will be CARB's recently updated version contained
in Mail-Out #96-34. This version of the California OBD II regulations
contains proposed amendments to the OBD II regulations and is intended
primarily for public comment purposes. After the final version of the
revised OBD II regulations is completed, EPA will, in its final action
on this proposal, allow compliance with that revised version provided
relevant portions of that version are acceptable for federal OBD
compliance demonstration. Manufacturers choosing the California OBD II
demonstration option need not comply with portions of that regulation
pertaining to vehicles certified under the Low Emission Vehicle Program
as those standards are not federal emission standards. Additionally,
manufacturers choosing the California OBD II demonstration option need
not comply with section (b)(4.2.2) which pertains to all vehicles
regardless of emission standards. That section requires evaporative
system leak detection monitoring down to a 0.02 inch diameter orifice
and represents a level of stringency beyond that ever appropriately
considered for federal OBD compliance. Lastly, manufacturers choosing
the California OBD II demonstration option need not comply with section
(d) which contains the anti-tampering provisions of the California OBD
II regulations.
D. Extension of Allowance of OBD Deficiencies for Federal OBD Vehicles
Today's action proposes to extend the current flexibility
provisions (i.e., ``deficiency provisions'') contained in Sec. 86.094-
17(i) indefinitely, rather than being eliminated beyond the 1998 model
year. This will allow the Administrator to accept an OBD system as
compliant even though specific requirements are not fully met. This
provision neither constitutes a waiver from federal OBD requirements,
nor does it allow compliance without meeting the minimum requirements
of the CAA (i.e., oxygen sensor monitor, catalyst monitor, and
standardization features).
E. Provisions for Alternate Fueled Vehicles
EPA is proposing to extend the current flexibility provision for
alternate fuel vehicles through the 2004 model year. Such vehicles will
be expected to comply fully with the OBD requirements proposed today
during gasoline operation (if applicable), and during alternate fuel
operation except where it is technologically infeasible to do so. Any
manufacturer wishing to utilize this flexibility provision must
demonstrate technological infeasibility concerns to EPA well in advance
of certification application.
F. Applicability
Today's proposed revisions to federal OBD malfunction thresholds,
monitoring requirements, deficiency provisions, alternate fuel
provisions, and the recommended practices incorporated by reference
apply to all 1999 and later model year light-duty vehicles and light-
duty trucks for which emission standards are in place or are
subsequently developed and promulgated by EPA. Today's proposed actions
to extend the allowance of optional compliance with California OBD II
and to update the acceptable version of the California OBD II
regulation apply to 1998 and later model year vehicles.
G. Update of Materials Incorporated by Reference
Also being proposed is the adoption of ISO 9141-2 entitled ``Road
vehicles--Diagnostic systems--Part 2: CARB requirements for interchange
of digital information,'' as an acceptable protocol for standardized
on-board to off-board communications. This standardized procedure was
proposed in September 24, 1991 (56 FR 48272), but could not be adopted
in the February 1993 final rule because the ISO document was not yet
finalized. ISO 9141-2 has since been finalized and is incorporated by
reference in today's proposed regulatory language.
Today's action also proposes the incorporation by reference of ISO
14230-4, ``Road vehicles--Diagnostic systems--KWP 2000 requirements for
Emission-related systems,'' as an acceptable protocol for standardized
on-board to off-board communications. This standardized procedure
contains a more up-to-date communication protocol than that contained
in ISO 9141-2. Today's action also proposes to incorporate updated
versions of the SAE procedures referenced in the current OBD
regulation. These SAE documents are J1850, J1979, J2012, J1962, J1877
and J1892.
H. Certification Provisions
The certification provisions associated with OBD, contained in
proposed section 86.099-30, will be appropriately revised to reflect
the proposed changes to the OBD malfunction thresholds and monitoring
requirements.
IV. Discussion of Issues
A. Federal OBD Malfunction Thresholds
The OBD malfunction thresholds promulgated by EPA in 1993 are based
on emission increases above a baseline level for any particular
vehicle. In other words, any malfunction or component deterioration
should be detected prior to emissions increasing above the non-
malfunctioning and/or non-deteriorated
[[Page 28935]]
emission level by an amount equal to the given threshold. For example,
all OBD systems currently must be able to detect oxygen sensor
deterioration before it results in an exhaust emissions increase of
greater than 0.2 g/mi HC, 1.7 g/m CO, or 0.5 g/mi NOX. The
emission increase would be measured relative to the baseline level for
the vehicle. EPA interprets the baseline level to be the vehicle's
emissions under normal, properly operating conditions.
EPA is proposing to substitute this approach with an approach
consistent with that in the California OBD II regulations.
Manufacturers have argued on several occasions that EPA should continue
to allow optional compliance with California OBD II for the purpose of
demonstrating compliance with the federal OBD program. Their primary
purpose in making this argument is to avoid the need to recalibrate
their OBD systems to the unique federal OBD thresholds. EPA agrees with
that argument and can see no cost effective value in requiring
calibration to two similar but distinct sets of OBD thresholds. In
addition, EPA believes revision of its OBD thresholds is appropriate
because EPA's current thresholds, based on increases over baseline
emission levels, could result in requirements for MIL illumination even
at emission levels below the applicable standards.
Today's proposal will revise the federal OBD malfunction thresholds
such that, in general, they are based not on baseline emissions, but
rather the emission standards themselves. The proposed regulations will
require identification of misfires and malfunction of oxygen sensors
and all other powertrain systems or components directly intended to
control emissions (e.g., evaporative purge control, EGR, secondary air
system, fuel control system) when emissions exceed the specified
emission threshold, which will be set at 1.5 times the applicable
emission standard. For evaporative leak detection, as discussed in more
detail in section C, ``Expanded Federal OBD Monitoring Requirements,''
today's proposal eliminates the current 30 g/test emission threshold
and instead requires detection of any hole equivalent to or greater in
size to one with a 0.04 inch diameter. For catalyst deterioration, the
proposed threshold is an increase of 1.5 times the applicable standard
compared to emissions from a representative catalyst run for 4000
miles. This threshold is consistent with California's threshold for
detection of catalyst malfunction or deterioration. As discussed
further in section C, this proposal also would require monitoring of
emission-related powertrain components that provide information to and
receive commands from the on-board computer whose malfunction may
impact emissions or may impair the ability of the OBD system to perform
its job (e.g., throttle position sensor, coolant temperature sensor,
vehicle speed sensor, etc.). Monitoring of these components must
include, at a minimum, electrical circuit continuity checks, and
effective rationality and/or functionality checks. Deterioration or
malfunction of these components would be identified when a component
failed the circuit continuity check or the rationality and/or
functionality checks.
While EPA believes that the proposed changes to the malfunction
thresholds will not be controversial to OEMs in general, issues still
exist. The Agency is concerned that this proposal may penalize those
OEMs who have proactively set out to meet the federal OBD thresholds
ahead of the existing 1999 model year cutoff of optional California OBD
II compliance. It may also penalize those small volume manufacturers
who may not have any plans for California vehicle sales and have thus
concentrated development efforts solely on the existing federal OBD
thresholds. EPA requests comment on the significance of this issue, and
requests suggestions on how best to resolve the issue while also
satisfying the Agency's desire to harmonize the federal and California
OBD requirements.
Another issue for discussion is that of threshold stringency. In
most cases, the California OBD II thresholds are more stringent than
the current federal thresholds. However, in some cases, the current
federal OBD malfunction thresholds are actually more stringent than the
California OBD II thresholds, particularly for Tier I light-duty
trucks. In particular, the current federal OBD thresholds can in some
cases require OBD detection and MIL illumination for malfunctions in
systems and components specifically used for emission control (e.g.,
EGR, evaporative purge, secondary air) even though vehicle emissions
may be below the emission standards. This, by definition, is lower than
requiring MIL illumination at 1.5 times the standard. Given that
vehicles are required to meet emission standards, it can be argued that
manufacturers should not be required to illuminate the MIL when
emissions are below those standards. EPA is sympathetic to the consumer
and the potential for seeking repair of systems or components used
specifically for emission control when no direct emission standards are
being violated. It should be noted that the revised malfunction
thresholds will effectively be no different, and in some cases will be
more stringent, for the major emission control component monitors
(i.e., catalyst, oxygen sensor, and engine misfire).
EPA is interested in any comments surrounding this issue and the
significance of its concern. Since the majority of the OEM industry has
repeatedly requested that EPA continue allowing optional compliance
with California OBD II as satisfying federal OBD, and this proposed
change results in federal OBD thresholds consistent with those
contained in the California OBD II requirements, EPA believes that the
proposed change to federal OBD malfunction thresholds should be
satisfactory and noncontroversial to those OEMs. In addition, EPA
believes that these revisions are consistent with the requirements of
CAA Section 202(m) and are technologically feasible.
B. Similar Operating Conditions Window
Another provision proposed today is to widen the engine load range
defining the similar operating conditions window. The proposal is to
widen that range from the current 10 percent value to 20 percent. This
window is used to determine when operating conditions for fuel system
and misfire malfunctions are again within the same operating window to
determine whether or not a previously detected malfunction is still
present. This window is used because malfunctions in the fuel control
system and those associated with engine misfire tend to happen at
specific operating conditions, rather than occurring during all modes
of operation. As a result, when a fuel system or misfire malfunction is
detected, the operating conditions window is stored in memory. During a
subsequent trip where operating conditions again enter that similar
conditions window, the presence of a malfunction will result in MIL
illumination. If, after three trips where similar operating conditions
are again encountered without the malfunction recurring, the MIL can be
extinguished provided no other MIL illuminating malfunction has been
detected.
This similar operating conditions window is being widened due to
difficulties in entering the current 10 percent window during
subsequent trips. This can result in an inability to extinguish a MIL
for a malfunction that is no longer occurring. For example, if a
cylinder misfires on a four cylinder car due to water in the gasoline,
then it will likely be very difficult to extinguish
[[Page 28936]]
the MIL after refilling with better gasoline because the engine load
characteristics at any given RPM will be very different while again
running consistently on all four cylinders.
The result of this proposed change is an increased latitude in
entering the wider similar conditions window on subsequent trips
resulting in a greater likelihood of extinguishing the MIL for
malfunctions that are no longer occurring. This proposed change will
not make it easier for the manufacturer to extinguish the MIL for
malfunctions that are still occurring, nor will it make it less likely
that the malfunction will be appropriately identified and flagged. For
these reasons, EPA knows of no issues surrounding this proposed change,
but is open to any comments.
C. Expanded Federal OBD Monitoring Requirements
The federal OBD requirements contained in 40 CFR 86.094-17 require
that the OBD system monitor proper functionality of the catalyst and
oxygen sensor, and monitor and detect engine misfire (including
identification of the particular misfiring cylinder(s)) and detect
electrical disconnection of the evaporative purge control and any
emission-related powertrain component or system which directly or
indirectly sends information to or receives information from the
vehicle's computer. Implied in those requirements is that any
functional deterioration or malfunction of an emission-related
powertrain component other than the catalyst, the oxygen sensor, or an
engine misfire related component not causing exceedance of the
malfunction thresholds does not require detection. The philosophy of
the original federal OBD program was that those emission-related
powertrain components unlikely to malfunction or unlikely to
malfunction in a way so as to increase emissions above the malfunction
thresholds need not be monitored for anything more than electrical
circuit continuity (i.e., functionality and rationality checks need not
be done).2
---------------------------------------------------------------------------
\2\ A rationality check is a diagnostic strategy whereby the on-
board computer analyzes the electronic signal sent by a sensor and
compares that to a known range of appropriate values. For example, a
coolant temperature sensor reading 70 degrees F after 10 minutes of
vehicle operation is not providing rational information to the on-
board computer because coolant temperature should be much higher
after 10 minutes of operation. Therefore, the system should be
identified as malfunctioning. A functionality check is a diagnostic
strategy whereby the on-board computer analyzes the functional
response of a component after first sending a functional command to
that component. If the desired functional response does not occur,
the component should be identified as malfunctioning.
---------------------------------------------------------------------------
Also, the malfunction detection threshold placed on evaporative
leak detection is currently 30 g/test. Because of advancements made to
evaporative emission control systems, this threshold is proving to be
insufficiently stringent, and provides little incentive to place an
evaporative system leak detection monitor on the vehicle or prevent
leaks from occurring because even relatively large leaks can sometimes
emit fewer vapors than 30 grams during a diurnal test.3
---------------------------------------------------------------------------
\3\ While below 30 grams, the vapors emitted should by no means
be considered insignificant. See EPA's rulemaking decision on the
enhanced evaporative emission control system for more information on
the significance of evaporative emissions on urban air quality (58
FR 16002, March 24, 1993).
---------------------------------------------------------------------------
With today's proposal, the federal OBD program adopts the
philosophy originally built into the California OBD II program, in that
all emission-related powertrain components must be monitored. The
proposed regulation would require that all powertrain components
specifically intended to control emissions (e.g., evaporative purge
control, EGR, secondary air system, fuel control system) be monitored.
This proposal also would require monitoring of all other emission-
related powertrain components that provide information to and receive
commands from the on-board computer whose malfunction may impact
emissions or may impair the ability of the OBD system to perform its
job (e.g., throttle position sensor, coolant temperature sensor,
vehicle speed sensor, etc.). Monitoring of these components must
include, at a minimum, electrical circuit continuity checks, and
effective rationality and/or functionality checks.
The primary OBD monitoring system impacted by this proposed change
is the evaporative system leak detection monitor. The proposed
regulations require an evaporative leak detection monitor while,
originally, the Agency intended the federal OBD requirement to allow
for certification without the evaporative leak detection monitor
provided both the manufacturer and EPA were confident that the design
of the evaporative emission control system was robust enough so as not
to fail during in-use operation. However, only one major manufacturer
has taken advantage of this allowance, and even that manufacturer has
used this allowance on only a portion of their production fleet. All
other major manufacturers have apparently decided that they do not have
sufficient confidence in their evaporative emission control system to
warrant removing the monitor, or they have decided that it is more cost
effective to implement the monitor on federally certified vehicles
rather than to recalibrate those vehicles for sale without it.
Additionally, many state I/M representatives have expressed concerns
with the current federal OBD allowance for certification without an
evaporative leak detection monitor. These representatives are eager for
widespread OBD implementation such that their I/M programs can rely on
OBD checks as replacement for emission tailpipe and/or evaporative
tests. They are concerned about their ability to rely solely on the OBD
system for I/M purposes given the future potential that more
manufacturers will sell vehicles without the OBD evaporative leak
detection monitor. Should more manufacturers make use of that current
federal OBD allowance, and without some form of I/M evaporative system
test, they will be left without any kind of evaporative system
evaluation.
The Agency has altered its OBD philosophy, in part, as an effort to
enhance the role of OBD in future I/M programs. Like the state
representatives referred to above, the Agency also hopes that current
emission test based I/M programs can be replaced with a much less time
consuming and more cost efficient check of the OBD system. However,
without monitors on all emission-related components, particularly the
evaporative system leak detection monitor, the OBD-only based I/M
program is not as likely to occur due to its potential for more limited
evaluation of the vehicle.
Further, the Agency believes that mandating these monitors will not
adversely affect the federal OBD program nor will it pose undue burden
on the OEMs. In fact, under the federal OBD rulemaking in February
1993, though EPA did not mandate all the monitors mentioned, the
manufacturer was still held responsible for any adverse affects that
those systems, if malfunctioning, could potentially cause.
Additionally, the Agency fully believes that the feasibility of
expanded monitoring requirements is well established as argued in the
recent California OBD II waiver decision (61 FR 53371, October 11,
1996). Further, many OEMs have already certified to federal OBD by
demonstrating compliance with California OBD II requirements. Lastly,
many OEMs have indicated their willingness to participate in the
National Low Emission Vehicle (NLEV) program, which includes California
OBD II
[[Page 28937]]
monitoring requirements. This suggests that expanded monitoring
requirements as proposed today are fully acceptable to at least the
majority of the OEM industry. For these reasons, today's proposed
change is not expected to result in any increased costs associated with
the federal OBD program over original estimates.4
---------------------------------------------------------------------------
\4\ The original cost estimate outlined in 58 FR 9468, February
19, 1993, included the costs associated with evaporative leak
detection monitoring.
---------------------------------------------------------------------------
The Agency does have some concerns regarding this issue, similar to
the concerns expressed in Section IV(A). The expansion of mandatory
monitors may penalize those OEMs who have proactively set out to design
a federal OBD system ahead of the 1999 model year cutoff of optional
California OBD II compliance. It may also penalize those small volume
manufacturers who may not have any plans for California vehicle sales
and have thus concentrated development efforts solely on a federal OBD
system. However, the Agency also has concerns over the effectiveness of
an OBD based I/M program without having OBD monitoring of essentially
the entire emission control system.
The Agency requests comment on today's proposed expansion of
mandatory monitors under the federal OBD program. Of particular
interest are comments from those manufacturers that have concentrated
on designing a unique federal OBD system due to the more limited
mandatory monitoring requirements. The Agency will consider the
possibility of providing a two year phase-in period in the form of a
carry-over allowance for compliance with the proposed federal OBD
revisions; any phase-in period will apply only to those vehicles
certified to the unique federal OBD requirements in the 1998 model
year. Also of interest are comments from state Inspection and
Maintenance program officials regarding their concern over the
potential that, without the revisions proposed, federal OBD systems
will not have all of the monitors currently required in the California
OBD II program.
D. Extension of Allowance of California OBD II
Today's action proposes to extend indefinitely the allowance for
manufacturers to comply with federal OBD requirements by optionally
complying with California OBD II. The allowance for optional compliance
with California OBD II has already been established in the federal OBD
program and was incorporated into the federal OBD final rulemaking in
February 1993 [58 FR 9468, February 19, 1993]. However, in that final
rulemaking, and in an August 1996 final rule [61 FR 45898, August 30,
1996], the Agency provided that allowance only through the 1998 model
year.
Additionally, today's proposed action seeks to update the version
of the California OBD II regulation that is applicable for federal OBD
compliance beginning with the 1998 model year. This action is similar
to an action taken in the August 1996 final rule that updated the
applicable version of the California OBD II regulation. However, since
that time, CARB has again made several revisions to the California OBD
II regulations, some of which apply to federal Tier I type vehicles.
These revisions provide some relief from earlier versions of OBD II,
but they are relatively minor and do not affect the overall soundness
of the OBD II program.
Both of these changes, updating the applicable version of the OBD
II regulations and extending indefinitely the allowance of California
OBD II for federal OBD compliance, are being proposed for the sake of
harmonization of OBD related requirements between California and EPA.
Most of the original equipment industry has repeatedly requested that
EPA continue to accept the California OBD II regulations so as to avoid
the need for major vehicle recalibrations as part of complying with the
similar but distinct federal OBD requirements. Further, all 1998 and
beyond model year California OBD II vehicles will be designed and
certified according to the recently revised OBD II regulation, rather
than the 1995 version. As a result, EPA must update the applicable
version of the OBD II regulation to which compliance can be shown for
federal OBD purposes.
As a result of this proposed action, any federal vehicles complying
with federal OBD by optionally complying with California OBD II are
allowed the same deficiencies as allowed under the California OBD II
provisions. Note, however, that a manufacturer requesting certification
of a deficient California OBD II system must receive EPA acceptance of
any deficiency independently of an acceptance made by CARB. The Agency
will use the same criteria specified by CARB in their OBD II
regulation. (Those criteria being the extent to which the requirements
are satisfied overall on the vehicle applications in question, the
extent to which the resultant diagnostic system design will be more
effective than earlier OBD systems, and a demonstrated good-faith
effort to meet the requirements in full by evaluating and considering
the best available monitoring technology.) Except that EPA will not
provide deficiency allowances for lack of catalyst monitors or oxygen
sensor monitors because the Clean Air Act specifically requires these
monitors no later than the 1996 model year. Moreover, EPA will grant
such deficiencies based upon the same premise expressed in section
IV(E) with regard to granting deficiencies for federal OBD vehicles.
The Agency will make every effort to determine the acceptability of
California OBD II deficiency requests in concert with CARB staff to
avoid the potential for conflicting determinations. However, the extent
to which the agencies can make concurrent and coordinated findings will
rely heavily on the manufacturer, who will be expected to provide any
necessary information to both agencies in parallel rather than pursuing
deficiency determinations on a separate basis.
E. Extension of Allowance of OBD Deficiencies for Federal OBD Vehicles
Despite the best efforts of manufacturers, many have needed to
certify vehicles with some sort of deficiency when unanticipated
problems have arisen that could not be remedied in time to meet
production schedules. Given the relative newness and, most importantly,
the considerable complexity of designing, producing, and installing the
components and systems that make up the OBD system, manufacturers have
expressed and demonstrated difficulty in complying with every aspect of
the OBD requirements. Furthermore, this difficulty appears likely to
continue indefinitely. The Agency believes that 100 percent compliance
can be achieved, but EPA believes that some sort of relief must be
provided to allow for certification of vehicles that, despite the best
efforts of the manufacturers, have deficient OBD systems.
The EPA ``deficiency'' allowance should not be seen as a waiver of
any kind. Though EPA will accept minor deficiencies, EPA will not
accept any deficiency requests that include the complete lack of a
required diagnostic monitor, with the possible exception of the special
provisions being proposed today for alternate fueled vehicles. In fact,
EPA expects to implement this deficiency allowance primarily for
software or calibration type problems, as opposed to cases where
hardware is at fault. This is EPA's expectation due to a belief that,
despite unintended and unforseen software problems occurring on these
complicated computer controlled systems, manufacturers
[[Page 28938]]
should have functioning OBD hardware in place, especially now that OBD
regulations have been in existence for several years. Furthermore, EPA
does not intend to certify vehicles with federal OBD systems that have
more than one OBD system deficiency, and EPA will not allow carryover
of any deficiency to the following model year unless it can be
demonstrated that correction of the deficiency requires hardware
modifications that absolutely cannot be accomplished in the time
available, as determined by the Administrator. These limitations are
intended to prevent a manufacturer from using the deficiency allowance
as a means to avoid compliance or delay implementation of any OBD
monitors or to compromise the overall effectiveness of the OBD program.
The Agency proposes that the ``deficiency'' allowance be provided
indefinitely, and requests comment on concerns surrounding this
proposal.
F. Diagnostic Readiness Codes
Because of the considerable confusion regarding the setting and
clearing of diagnostic readiness codes, or I/M readiness codes, this
section serves to provide EPA's interpretation of its regulations on
these codes. The original OBD final rulemaking of February 1993,
required that, absent the presence of any fault codes, separate status
codes shall be used to identify correctly functioning emission control
systems and those systems which need further vehicle operation to be
fully evaluated. The purpose behind the readiness code is to allow an
inspection and maintenance (I/M) official to determine whether or not a
vehicle has undergone sufficient operation to allow the OBD system to
fully evaluate the emission control system. This way, the I/M official
could be certain that the lack of OBD diagnostic trouble codes could be
interpreted to mean that the vehicle was operating cleanly, rather than
perhaps being an indication that the OBD system simply had not had time
to fully evaluate the vehicle.
Many manufacturers have had difficulty interpreting exactly what
was expected via this requirement. Some manufacturers have interpreted
the requirement to mean that with every ``key-on,'' the readiness codes
should be set to ``not ready'' status. However, such an approach
effectively defeats the purpose behind the readiness code since any
vehicle having been turned off while waiting for the I/M inspection
would subsequently be interpreted as ``not ready'' for I/M inspection.
Therefore, to clarify, the readiness code, for those monitors
having associated readiness codes, should be set to ``ready'' status
only after sufficient vehicle operation such that the monitor has been
properly exercised and a valid determination can be made as to the
component's or system's operational status. Generally, this equates to
two driving cycles, where driving cycle is defined as vehicle operation
during which a particular monitor is exercised. Note that a driving
cycle may be different for different monitors, and not all monitors
have associated readiness codes. For example, continuously operating
monitors are considered ``ready'' since they operate continuously
rather than during only limited operating conditions; therefore, such
monitors may not have an associated readiness code.
The readiness codes should never be set to ``not ready'' status by
any means other than intentional resetting via a scan tool or perhaps
due to battery power interruption. Further, when setting a readiness
code to ``not ready'' status using a scan tool (after conducting any
necessary repairs), all readiness codes should be set to ``not ready''
rather than resetting only the readiness code associated with the
repaired component. In other words, readiness codes should be set to
``not ready'' status as a group rather than individually. This will
serve to ensure adequate vehicle operation and OBD system evaluation
following vehicle repairs and prior to subsequent I/M inspections.
G. EPA Recall Policy
Because the Agency has received numerous questions regarding its
recall policy relative to OBD, this section serves to clarify the
issue. Under the federal OBD program, a decision to recall the OBD
system for recalibration or repair, or a replacement of a
malfunctioning component, will depend on factors including, but not
limited to, the level of emissions above applicable standards, whether
the defect is uniform over the entire engine family or limited to a
sub-class of the engine family, or the presence of any identifiable
faulty or deteriorated components which affect emissions with no MIL
illumination.
In the case of an OBD system failing to identify an infrequent
component failure, the OBD system, not the component, would be the
subject of the recall and that recall would occur only if the
determination were made that the ``failure to identify'' would occur on
a substantial number of vehicles of the same general OBD design and/or
monitoring strategy. Therefore, in the Agency's opinion, if evidence
supports that an identical malfunction could occur with sufficient
probability without being flagged by a similar OBD system design and/or
monitoring strategy, that OBD system design is inadequate and has
failed or would fail to detect that malfunction. Such a determination
would provide little confidence in that OBD monitor or strategy to
properly monitor during in-use operation, and, therefore, it should be
recalled.
H. Extension of Provisions for Alternate Fueled Vehicles
In a direct final rulemaking published March 23, 1995 (60 FR
15242), EPA made an allowance for alternate fueled vehicles to comply
with federal OBD requirements to the extent feasible through the 1998
model year, without being required to include monitoring strategies for
which the effects of alternate fuels are of technological concern.
Beginning with the 1999 model year, full compliance with all federal
OBD requirements would be expected. This one to two year delay in full
OBD implementation was provided because industry argued they had not
had sufficient lead time to properly assess the effects of alternate
fuels on OBD monitoring strategies. As a result, there was considerable
concern within industry and EPA regarding whether monitoring strategies
for alternate fueled vehicles could be developed within the available
time. Thus, the OBD requirements were presenting a roadblock to
development of alternate fueled vehicles. The delay allowed
manufacturers more lead time to design and develop OBD strategies
suited for alternate fuels, and thus allowed greater production of
alternate fueled vehicles.
All of these arguments for additional lead time still exist at this
time. Many technological aspects of alternate fueled vehicles that
provide environmental benefits also cause problems in terms of OBD
monitoring strategies. The uncertainty involved with alternate fueled
vehicles is a result of their unknown effects on emission components,
and the variability of deterioration characteristics of monitors and
sensors with which the fuels come into contact. The technology-forcing
nature of OBD regulations has required industry to concentrate almost
exclusively on developing new OBD strategies for gasoline vehicles and
making improvements to existing strategies. Additional lead time,
beyond that mentioned above, would provide the opportunity for more
data collection from in-use alternate fueled vehicles to evaluate the
unique effects of these fuels on emission control system components
[[Page 28939]]
and the corresponding OBD system monitors.
EPA recently contracted SouthWest Research Institute to study the
technological feasibility and lead time issues associated with OBD
systems and alternate fueled vehicles. The study (On-Board
Diagnostics--Second Generation (OBD-II) System Criteria for Alternate-
Fueled Vehicles, Final Report, Melvin N. Ingalls, Sep. 1996) (EPA Air
Docket A-96-32, I-A-01) supports EPA's independent analyses that the
manufacturers of alternate fueled vehicles still face considerable
challenges in incorporating fully functional OBD systems into the
design of these vehicles. The report concluded, as stated in the
Executive Summary, ``Aftermarket conversions (the majority of gaseous
fuel vehicles are conversions) have a particularly great need for
further OBD system development. The CNG and LPG industry press
(magazines, newsletters, and the like) identify OBD-II as the biggest
problem facing vehicle conversion companies.''
Therefore, EPA is proposing to extend the existing provision for
alternate fueled vehicles to allow additional lead time for full
compliance with federal OBD through the 2004 model year with full
compliance required in the 2005 model year. The additional OBD
development time will allow manufacturers (both OEM and converters) to
evaluate the effects of alternate fuels on emission control system
performance and thus ensure that OBD diagnostic strategies will be
reliable in-use. EPA believes that EPA certified alternate fueled
vehicles can provide environmental benefits relative to gasoline
vehicles, and EPA is committed to seeing larger volumes of EPA
certified alternate fueled vehicles produced and sold. Note that this
flexibility is intended to apply only during operation on an alternate
fuel and even then the flexibility applies only to the extent
manufacturers can show that diagnostic strategies for alternate fuel
operation are technologically infeasible. Manufacturers will be
required to implement monitoring strategies to the extent feasible, but
will not be required to include monitoring strategies the reliability
of which are still doubtful for alternate fuel operation. To further
clarify, EPA will expect that vehicles designed for use on more than
one fuel (i.e., flexible fuel vehicles) have fully operating OBD
systems upon initial sale. Should a non-gasoline fuel then be
introduced, the monitors affected by the alternate fuel could be
deactivated to the extent the manufacturer can show that reliable
diagnostic strategies are infeasible. Therefore, if the vehicle is not
fueled by an alternate fuel, the OBD system will be fully functioning.
Authority for this proposal exists under section 202(m)(1)(A). That
section clearly states that OBD systems be required that can accurately
identify emission-related system deterioration or malfunction. While
gasoline technologies have been developed that can accurately detect
such problems, EPA does not believe that sufficient evidence has been
demonstrated at this time showing that OBD systems will perform
accurately while operating on alternate fuels. To the extent such
evidence becomes available prior to model year 2005, or to the extent
technological infeasibility cannot be demonstrated, manufacturers will
be less able to use these flexibility provisions.
I. Update of Materials Incorporated by Reference
The Agency is not aware of any potential issues surrounding the
inclusion of either ISO 9141-2, or ISO 14230-4 into the federal OBD
regulations, or updating the SAE Recommended Practices already
incorporated by reference. ISO 9141-2 and ISO 14230-4 are similar in
nature to SAE J1850, which outlines standardized means of on-board to
off-board computer communications. The details of all the materials
proposed for Incorporation by Reference are contained in 40 CFR 86.1
and 86.099-17 (h). Nonetheless, the Agency is open to any comments
regarding the materials proposed today for incorporation by reference.
V. Cost Effectiveness
This proposed rulemaking alters an existing provision by revising
the current federal OBD malfunction thresholds. These revisions will
result in essentially equivalent stringency for the major emission
control system monitors, while slightly relaxing stringency in certain
cases for some more minor emission control system monitors. Because
most of industry has requested that EPA harmonize emission thresholds
with the California OBD II thresholds as a means to minimize resource
requirements, EPA believes that today's proposal will provide cost
savings to those OEMs certifying solely to the California OBD II
thresholds by eliminating the need to incur significant recalibration
costs and efforts for the 1999 model year.
However, EPA is aware that some OEMs, particularly extremely small
volume import manufacturers, may have concentrated their efforts on the
unique federal OBD malfunction thresholds. EPA believes that the
primary cost imposed on these particular OEMs associated with today's
proposal would be for the mandatory evaporative system leak detection
monitoring. These systems have been estimated by EPA to cost $18 per
vehicle (58 FR 9483). The Agency believes that mandating the
evaporative system leak detection monitor would not increase the cost
of the federal OBD program. The cost of this monitor was taken into
consideration in the original federal OBD regulations (58 FR 9468) even
though this monitor was originally optional. Additionally, these
extremely small volume import manufacturers will be required to
reevaluate their OBD calibrations since they are set for compliance
with the current federal OBD thresholds and would require potential
rework to comply with the thresholds proposed today. Because this
recalibration effort could be resource intensive, EPA requests comments
on the level of burden and potential means of resolving this concern
should it be warranted based on the burden imposed.
The automotive aftermarket industry is likely to argue that the
provisions of today's proposal will impose heavy economic burdens on
that industry. The automotive aftermarket has made claims of heavy
economic burdens during development of the California OBD II
regulations and the ensuing waiver process during which California
requested a waiver from federal preemption for the purpose of enforcing
their unique OBD program. In response to today's proposed revisions,
the aftermarket may argue that excessive costs will be incurred because
the anti-tampering measures required under the California OBD II
regulations will present more difficulty for the automotive aftermarket
in carrying out their business of reverse engineering original
equipment manufacturer (OEM) parts and designing replacement or
specialty parts. However, EPA is not including CARB's anti-tampering
provisions in its incorporation of California's regulations. Failure to
incorporate these provisions still allows OEMs to voluntarily implement
anti-tampering measures, but such is also the case under federal OBD.
Moreover, CARB has eliminated the anti-tampering provisions considered
most egregious by the aftermarket.5 Therefore, EPA believes
that the provisions of this proposed rulemaking are not
[[Page 28940]]
responsible for any potential increased costs on the automotive
aftermarket.
---------------------------------------------------------------------------
\5\ CARB Mail-Out #96-34, proposed amendments to the California
Code of Regulations section 1968.1, paragraph (d).
---------------------------------------------------------------------------
The costs and emission reductions associated with the federal OBD
program were developed for the February 19, 1993, final rulemaking. The
changes being proposed today do not affect the costs or emission
reductions published as part of that rulemaking, with the possible
exception of decreasing costs for larger volume manufacturers.
VI. Public Participation
A. Summary of Specific Comments Requested by EPA
This section serves only to highlight the issues upon which EPA
specifically requests public comment. This section does not preclude in
any way the submittal of comments not requested here. Furthermore, this
section does not provide details on the proposed requirements, nor
potential issues surrounding those proposals; such detail can be found
in sections III and IV, above.
1. Federal OBD Malfunction Thresholds
As discussed in section IV.A., the Agency is proposing changes to
the current federal OBD malfunction thresholds. The Agency requests
comment regarding the impact of these proposed changes on those
manufacturers having proactively set out to meet the current federal
OBD thresholds ahead of the 1999 model year. The Agency also requests
comment regarding the impact of the proposed changes on small volume
manufacturer who may not have any plans for California vehicle sales
and have thus concentrated development efforts solely on the existing
federal OBD thresholds. Furthermore, realizing that EPA has requested
comment on the appropriateness of a two year grace period for those
manufacturers having certified to the current EPA thresholds in the
1998 model year, EPA requests comment on how best to resolve the issue
while also satisfying the Agency's desire to harmonize the federal and
California OBD requirements.
The Agency is also requesting comment on the stringency of the
proposed thresholds given that thresholds for some monitors will be
relaxed somewhat, while others will become more stringent.
2. Expanded Federal OBD Monitoring Requirements
The Agency requests comment on today's proposed expansion of
mandatory monitors under the federal OBD program. Of particular
interest are comments from those manufacturers that have concentrated
on designing a unique federal OBD system due to the more limited
mandatory monitoring requirements.
Also of interest are comments from state Inspection and Maintenance
program officials regarding their concern over the potential for OBD
systems on vehicles that do not have all of the monitors currently
required in the Californian OBD II program.
3. Extension of Allowance of OBD Deficiencies for Federal OBD Vehicles
As discussed in section IV.D., the Agency is proposing to
indefinitely extend the current ``deficiency'' provisions of the
federal OBD program. The Agency believes that this is a reasonable
proposal given the intricate nature of OBD systems and the likelihood
that minor software glitches will occur. Comment is requested on
concerns regarding this proposal.
4. Extension of Provisions for Alternate Fueled Vehicles
The Agency is proposing that special OBD flexibilities be afforded
to alternate fueled vehicle. Comments are specifically requested on the
need for such flexibility, and the need for that flexibility to extend
through the 2004 model year as opposed to a nearer term model year.
Comments are also requested regarding EPA's expectation that bi-fuel
alternate fuel vehicles (i.e., those vehicles with one fuel delivery
system capable of operation on two different fuels or any combination
of those fuels) and dual-fuel alternate fuel vehicles (i.e., those
vehicles with two separate fuel delivery systems) have fully compliant
OBD systems during gasoline operation.
5. Update of Materials Incorporated by Reference
As discussed in section IV.H., the Agency is proposing to
Incorporate by Reference a series of standardized SAE and ISO
procedures. The Agency is not aware of any issues surrounding the
proposed Incorporation by Reference, but is open to any comments
regarding this issue.
6. Cost Effectiveness
As discussed in section V, EPA is aware that some OEMs,
particularly extremely small volume import manufacturers, have
concentrated their efforts on the unique federal OBD malfunction
thresholds. Because the proposed changes may require recalibration
efforts, and those efforts could be resource intensive, EPA requests
comments on the level of burden and potential means of resolving this
concern should it be warranted based on the burden imposed.
B. Comments and the Public Docket
EPA welcomes comments on all aspects of this proposed rulemaking.
Commenters are especially encouraged to give suggestions for changing
any aspects of the proposal. All comments, with the exception of
proprietary information should be addressed to the EPA Air Docket
Section, Docket No. A-96-32 (see ADDRESSES).
Commenters who wish to submit proprietary information for
consideration should clearly separate such information from other
comments by (1) labeling proprietary information ``Confidential
Business Information'' and (2) sending proprietary information directly
to the contact person listed (see FOR FURTHER INFORMATION CONTACT) and
not to the public docket. This will help insure that proprietary
information is not inadvertently placed in the docket. If a commenter
wants EPA to use a submission labeled as confidential business
information as part of the basis for the final rule, then a
nonconfidential version of the document, which summarizes the key data
or information, should be sent to the docket.
Information covered by a claim of confidentiality will be disclosed
by EPA only to the extent allowed and by the procedures set forth in 40
CFR Part 2. If no claim of confidentiality accompanies the submission
when it is received by EPA, the submission may be made available to the
public without notifying the commenters.
C. Public Hearing
Anyone wishing to present testimony about this proposal at the
public hearing (see DATES) should, if possible, notify the contact
person (see FOR FURTHER INFORMATION CONTACT) at least seven days prior
to the day of the hearing. The contact person should be given an
estimate of the time required for the presentation of testimony and
notification of any need for audio/visual equipment. Testimony will be
scheduled on a first come, first serve basis. A sign-up sheet will be
available at the registration table the morning of the hearing for
scheduling those who have not notified the contact earlier. This
testimony will be scheduled on a first come, first serve basis to
follow the previously scheduled testimony.
EPA requests that approximately 50 copies of the statement or
material to be presented be brought to the hearing for distribution to
the audience. In addition, EPA would find it helpful to receive an
advanced copy of any
[[Page 28941]]
statement or material to be presented at the hearing at least one week
before the scheduled hearing date. This is to give EPA staff adequate
time to review such material before the hearing. Such advanced copies
should be submitted to the contact person listed.
The official records of the hearing will be kept open for 30 days
following the hearing to allow submission of rebuttal and supplementary
testimony. All such submittals should be directed to the Air Docket
Section, Docket No. A-96-32 (see ADDRESSES). The hearing will be
conducted informally, and technical rules of evidence will not apply. A
written transcript of the hearing will be placed in the above docket
for review. Anyone desiring to purchase a copy of the transcript should
make individual arrangements with the court reporter recording the
proceedings.
VII. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or,
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Reporting and Recordkeeping Requirements
Today's action does not impose any new information collection
burden. The modifications proposed above do not change the information
collection requirements submitted to and approved by OMB in association
with the OBD final rulemaking (58 FR 9468, February 19, 1993; and, 59
FR 38372, July 28, 1994). The Office of Management and Budget (OMB) has
previously approved the information collection requirements contained
in 40 CFR 86.084-17 under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-
0104 (EPA ICR No. 783.35).
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
Copies of the ICR document(s) may be obtained from Sandy Farmer,
Information Policy Branch; EPA; 401 M St., SW. (mail code 2136);
Washington, DC 20460 or by calling (202) 260-2740. Include the ICR and/
or OMB number in any correspondence.
C. Impact on Small Entities
The Regulatory Flexibility Act requires federal agencies when
proposing a rule, to identify potentially adverse impacts of federal
regulations upon small entities. In instances where significant impacts
are possible on a substantial number of these entities, agencies are
required to develop a proposed Regulatory Flexibility Analysis.
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this proposed rule. This rule
will not have a significant adverse economic impact on a substantial
number of small businesses. This rulemaking will provide regulatory
relief to both large and small volume automobile manufacturers by
maintaining consistency with California OBD II requirements. It will
not have a substantial impact on such entities. This rulemaking will
not have a significant impact on businesses that manufacture, rebuild,
distribute, or sell automotive parts, nor those involved in automotive
service and repair, as the revisions affect only requirements on
automobile manufacturers.
In the absence of the proposed rule, the expiration of the
Sec. 86.094-17(j) provision allowing optional demonstration of
compliance with California OBD II requirements to suffice for EPA
certification purposes, would necessitate full vehicle manufacturer
compliance with the current federal OBD requirements at Sec. 86.094-
17(a) through (h), beginning with the 1999 model year. Manufacturers
have thus far chosen to reduce their costs by producing vehicle OBD
systems to California specifications, thereby avoiding the necessity of
developing significantly different OBD calibrations meeting the
existing federal specifications, for the non-California market. Because
the proposed rule modifies federal requirements to capture many
benefits of the California option, EPA believes that it reduces
manufacturer costs over a no-action baseline for 1999 and later model
years.
Further, figures provided by the U.S. Departments of Labor and
Commerce show the estimated cost of vehicle changes to meet 1996 model
year OBD II requirements to be less than 1% of total vehicle cost.
Because these changes already incorporate increased monitoring that is
required to meet California OBD II requirements and is also required by
the proposed rule, the rule is not expected to significantly increase
OBD system cost beyond the estimate given.
Therefore, the Administrator certifies that this regulation does
not have a significant impact on a substantial number of small
entities.
D. Unfunded Mandates Act
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, or $100 million or more. Under Section 205, EPA
must select the most cost effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requiremen
FR Doc. 97-13749 Control of Air Pollution From Motor Vehicles and New Motor Vehicle Engines; Modification of Federal On-board Diagnostic Regulations for Light-Duty Vehicles and Light-Duty Trucks; Extension of Acceptance of California OBD II Requirements
ts. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the action proposed today would not include
a Federal mandate that may result in estimated costs of $100 million or
more to either State, Local, or tribal
[[Page 28942]]
governments in the aggregate, or to the private sector.
List of Subjects in 40 CFR Part 86
Environmental protection, Administrative practice and procedure,
Confidential business information, Incorporation by reference,
Labeling, Motor vehicle pollution, Reporting and recordkeeping
requirements.
Dated: May 14, 1997.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 86 of title 40 of the
Code of Federal Regulations is proposed to be amended as follows:
PART 86--CONTROL OF AIR POLLUTION FROM NEW AND IN-USE MOTOR
VEHICLES AND NEW AND IN-USE MOTOR VEHICLE ENGINES: CERTIFICATION
AND TEST PROCEDURES
1. The authority citation for part 86 revised to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 86.1 is amended by adding the following entries in
numerical order to the table in paragraph (b)(2) and by adding
paragraph (b)(5) to read as follows:
Sec. 86.1 Reference materials.
* * * * *
(b) * * *
(2) * * *
------------------------------------------------------------------------
40 CFR part 86
Document No. and name reference
------------------------------------------------------------------------
* * * * *
SAE J 1850 July 1995, Class B Data Communication Network
Interface.............................................. 86.099-17
SAE J1877 October 1993, Recommended Practice for Bar-
Coded Vehicle Identification Number Label.............. 86.095-35
SAE J1892 July 1994, Recommended Practice for Bar-Coded
Vehicle Emission Configuration Label................... 86.095-35
SAE J1962 January 1995, Diagnostic Connector............ 86.099-17
SAE J1979 E/E July 1996, Diagnostic Test Modes.......... 86.099-17
SAE J2012 July 1996, Recommended Format and messages for
Diagnostic Trouble Code Definitions, Part C............ 86.099-17
------------------------------------------------------------------------
* * * * *
(5) ISO material. The following table sets forth material from the
International Organization of Standardization that has been
incorporated by reference. The first column lists the number and name
of the material. The second column lists the section(s) of this part,
other than Sec. 86.1, in which the matter is referenced. The second
column is presented for information only and may not be all inclusive.
Copies of these materials may be obtained from the International
Organization for Standardization, Case Postale 56, CH-1211 Geneva 20,
Switzerland.
------------------------------------------------------------------------
40 CFR part 86
Document No. and name reference
------------------------------------------------------------------------
ISO 9141-2 February 1994, Road vehicles--Diagnostic
systems Part 2......................................... 86.099-17
ISO 14230-4 April 1996, Road vehicles--Diagnostic
systems................................................ 86.099-17
------------------------------------------------------------------------
Subpart A--[Amended]
Sec. 86.094-21 [Amended]
3. Section 86.094-21 is amended by removing and reserving paragraph
(i).
4. Section 86.094-38 is amended by revising paragraphs (a) through
(f) to read as follows:
Sec. 86.094-38 Maintenance instructions.
(a) through (f) [Reserved]. For guidance see Sec. 86.087-38.
* * * * *
5. Section 86.095-35 is amended by revising paragraph (i) to read
as follows:
Sec. 86.095-35 Labeling.
* * * * *
(i) All light-duty vehicles and light-duty trucks shall comply with
SAE Recommended Practices J1877 ``Recommended Practice for Bar-Coded
Vehicle Identification Number Label,'' (October 1993), and J1892
``Recommended Practice for Bar-Coded Vehicle Emission Configuration
Label,'' (July 1994). SAE J1877 and J1892 are incorporated by reference
(see Sec. 86.1).
6. Section 86.098-17 is amended by revising paragraphs (b)(2)
through (j) to read as follows:
Sec. 86.098-17 Emission control diagnostic system for 1998 and later
light-duty vehicles and light-duty trucks.
* * * * *
(b)(2) through (i) [Reserved]. For guidance see Sec. 86.094-17.
(j) Demonstration of compliance with California OBD II requirements
(Title 13 California Code Sec. 1968.1), as modified pursuant to
California Mail Out #96-34 (October 25, 1996), shall satisfy the
requirements of this section, except that compliance with Title 13
California Code Secs. 1968.1(b) (4.2.2), pertaining to evaporative leak
detection, and 1968.1(d), pertaining to tampering protection, are not
required to satisfy the requirements of this section.
7. A new Sec. 86.099-17 is added to read as follows:
Sec. 86.099-17 Emission control diagnostic system for 1999 and later
light-duty vehicles and light-duty trucks.
(a) All light-duty vehicles and light-duty trucks shall be equipped
with an on-board diagnostic (OBD) system capable of monitoring, for
each vehicle's useful life, all emission related powertrain systems or
components. All systems and components required to be monitored by this
section shall be evaluated periodically, but no less frequently than
once per Urban Dynamometer Driving Schedule as defined in paragraph (a)
of Appendix I of this part, or similar trip as approved by the
Administrator.
(b) Malfunction descriptions. The OBD system shall detect and
identify malfunctions in all monitored emission-related powertrain
systems or components according to the following malfunction
definitions as measured and calculated in accordance with test
procedures set forth in subpart B of this part. Paragraphs (b)(2) and
(b)(3) of this section do not apply to diesel cycle light-duty vehicles
or light-duty trucks.
(1) Catalyst deterioration or malfunction before it results in an
increase in HC emissions 1.5 times the HC standard, as compared to the
HC emission level measured using a representative 4000 mile catalyst
system.
(2) Engine misfire resulting in exhaust emissions exceeding 1.5
times the applicable standard for HC, CO or NOX; and any
misfire capable of damaging the catalytic converter.
(3) Oxygen sensor deterioration or malfunction resulting in exhaust
emissions exceeding 1.5 times the applicable standard for HC, CO or
NOX.
(4) Any vapor leak in the evaporative and/or refueling system
(excluding the tubing and connections between the purge valve and the
intake manifold) greater than or equal in magnitude to a leak caused by
a 0.040 inch diameter orifice; and the absence of evaporative purge air
flow from the complete evaporative emission control system.
(5) Any deterioration or malfunction occurring in a powertrain
system or component directly intended to control emissions, including
but not necessarily limited to, the exhaust gas recirculation (EGR)
system, if equipped, the secondary air system, if equipped, and the
fuel control system, singularly resulting in exhaust emissions
exceeding 1.5 times the applicable emission standard for HC, CO or
NOX.
(6) Any other deterioration or malfunction occurring in an
electronic
[[Page 28943]]
emission-related powertrain system or component not otherwise described
above that either provides input to or receives commands from the on-
board computer and has a measurable impact on emissions; monitoring of
components required by this paragraph shall be satisfied by employing
electrical circuit continuity checks and, for computer input
components, rationality checks (input values within manufacturer
specified ranges) and, for output components, functionality checks
(proper functional response to computer commands); malfunctions are
defined as a failure of the system or component to meet the electrical
circuit continuity checks or the rationality or functionality checks.
(7) Oxygen sensor or any other component deterioration or
malfunction which renders that sensor or component incapable of
performing its function as part of the OBD system shall be detected and
identified on vehicles so equipped.
(c) Malfunction indicator light. The OBD system shall incorporate a
malfunction indicator light (MIL) readily visible to the vehicle
operator. When illuminated, it shall display ``Check Engine,''
``Service Engine Soon,'' or a similar phrase or symbol approved by the
Administrator. A vehicle shall not be equipped with more than one
general purpose malfunction indicator light for emission-related
problems; separate specific purpose warning lights (e.g. brake system,
fasten seat belt, oil pressure, etc.) are permitted. The use of red for
the OBD-related malfunction indicator light is prohibited.
(d) MIL illumination. The MIL shall illuminate and remain
illuminated when any of the conditions specified in paragraph (b) of
this section are detected and verified, or whenever the engine control
enters a default or secondary mode of operation considered abnormal for
the given engine operating conditions. The MIL shall blink once per
second under any period of operation during which engine misfire is
occurring and catalyst damage is imminent. After no more than two such
misfire detections, the MIL shall maintain a steady illumination when
the misfire is not occurring and shall remain illuminated until the MIL
extinguishing criteria of this section are satisfied. The MIL shall
also illuminate when the vehicle's ignition is in the ``key-on''
position before engine starting or cranking and extinguish after engine
starting if no malfunction has previously been detected. If a fuel
system or engine misfire malfunction has previously been detected, the
MIL may be extinguished if the malfunction does not reoccur during
three subsequent sequential trips during which engine speed is within
375 rpm, engine load is within 20 percent, and the engine's warm-up
status is the same as that under which the malfunction was first
detected, and no new malfunctions have been detected. If any
malfunction other than a fuel system or engine misfire malfunction has
been detected, the MIL may be extinguished if the malfunction does not
reoccur during three subsequent sequential trips during which the
monitoring system responsible for illuminating the MIL functions
without detecting the malfunction, and no new malfunctions have been
detected. Upon Administrator approval, statistical MIL illumination
protocols may be employed, provided they result in comparable
timeliness in detecting a malfunction and evaluating system
performance, i.e., three to six monitoring events would be considered
acceptable.
(e) Storing of computer codes. The emission control diagnostic
system shall record and store in computer memory diagnostic trouble
codes and diagnostic readiness codes indicating the status of the
emission control system. These codes shall be available through the
standardized data link connector per SAE J1979 specifications as
referenced in paragraph (h) of this section.
(1) A diagnostic trouble code shall be stored for any detected and
verified malfunction causing MIL illumination. The stored diagnostic
trouble code shall identify the malfunctioning system or component as
uniquely as possible. At the manufacturer's discretion, a diagnostic
trouble code may be stored for conditions not causing MIL illumination.
Regardless, a separate code should be stored indicating the expected
MIL illumination status (i.e., MIL commanded ``ON,'' MIL commanded
``OFF'').
(2) For a single misfiring cylinder, the diagnostic trouble code(s)
shall uniquely identify the cylinder, unless the manufacturer submits
data and/or engineering evaluations which adequately demonstrate that
the misfiring cylinder cannot be reliably identified under certain
operating conditions. The diagnostic trouble code shall identify
multiple misfiring cylinder conditions; under multiple misfire
conditions, the misfiring cylinders need not be uniquely identified if
a distinct multiple misfire diagnostic trouble code is stored.
(3) The diagnostic system may erase a diagnostic trouble code if
the same code is not re-registered in at least 40 engine warm-up
cycles, and the malfunction indicator light is not illuminated for that
code.
(4) Separate status codes, or readiness codes, shall be stored in
computer memory to identify correctly functioning emission control
systems and those emission control systems which require further
vehicle operation to complete proper diagnostic evaluation. A readiness
code need not be stored for those monitors that can be considered
continuously operating monitors (e.g., misfire monitor, fuel system
monitor, etc.). Readiness codes should never be set to ``not ready''
status upon key-on or key-off; intentional setting of readiness codes
to ``not ready'' status via service procedures must apply to all such
codes, rather than applying to individual codes.
(f) Available diagnostic data. (1) Upon determination of the first
malfunction of any component or system, ``freeze frame'' engine
conditions present at the time shall be stored in computer memory.
Should a subsequent fuel system or misfire malfunction occur, any
previously stored freeze frame conditions shall be replaced by the fuel
system or misfire conditions (whichever occurs first). Stored engine
conditions shall include, but are not limited to: engine speed, open or
closed loop operation, fuel system commands, coolant temperature,
calculated load value, fuel pressure, vehicle speed, air flow rate, and
intake manifold pressure if the information needed to determine these
conditions is available to the computer. For freeze frame storage, the
manufacturer shall include the most appropriate set of conditions to
facilitate effective repairs. If the diagnostic trouble code causing
the conditions to be stored is erased in accordance with paragraph (d)
of this section, the stored engine conditions may also be erased.
(2) The following data in addition to the required freeze frame
information shall be made available on demand through the serial port
on the standardized data link connector, if the information is
available to the on-board computer or can be determined using
information available to the on-board computer: Diagnostic trouble
codes, engine coolant temperature, fuel control system status (closed
loop, open loop, other), fuel trim, ignition timing advance, intake air
temperature, manifold air pressure, air flow rate, engine RPM, throttle
position sensor output value, secondary air status (upstream,
downstream, or atmosphere), calculated load value, vehicle speed, and
fuel pressure. The signals shall be provided in standard units based on
SAE specifications incorporated by
[[Page 28944]]
reference in paragraph (h) of this section. Actual signals shall be
clearly identified separately from default value or limp home signals.
(3) For all emission control systems for which specific on-board
evaluation tests are conducted (catalyst, oxygen sensor, etc.), the
results of the most recent test performed by the vehicle, and the
limits to which the system is compared shall be available through the
standardized data link connector per SAE J1979 specifications as
referenced in paragraph (h) of this section.
(4) Access to the data required to be made available under this
section shall be unrestricted and shall not require any access codes or
devices that are only available from the manufacturer.
(g) The emission control diagnostic system is not required to
evaluate systems or components during malfunction conditions if such
evaluation would result in a risk to safety or failure of systems or
components.
(h) Reference materials. The emission control diagnostic system
shall provide for standardized access and conform with the following
Society of Automotive Engineers (SAE) standards and/or the following
International Standards Organization (ISO) standards. The following
documents are incorporated by reference (see Sec. 86.1):
(1) SAE material. (i) SAE J1850 ``Class B Data Communication
Network Interface,'' (July 1995) shall be used as the on-board to off-
board communications protocol. All emission related messages sent to
the scan tool over a J1850 data link shall use the Cyclic Redundancy
Check and the three byte header, and shall not use inter-byte
separation or checksums.
(ii) Basic diagnostic data (as specified in sections 86.094-17(e)
and (f)) shall be provided in the format and units in SAE J1979 ``E/E
Diagnostic Test Modes,'' (July 1996).
(iii) Diagnostic trouble codes shall be consistent with SAE J2012
``Recommended Format and Messages for Diagnostic Trouble Code
Definitions,'' (July 1996) Part C.
(iv) The connection interface between the OBD system and test
equipment and diagnostic tools shall meet the functional requirements
of SAE J1962 ``Diagnostic Connector,'' (January 1995).
(2) ISO materials. (i) ISO 9141-2 ``Road vehicles--Diagnostic
systems--Part 2: CARB requirements for interchange of digital
information,'' (February 1994) may be used as an alternative to SAE
J1850 as the on-board to off-board communications protocol.
(ii) ISO 14230-4 ``Road vehicles--Diagnostic systems--KWP 2000
requirements for Emission-related systems'' (April 1996) may also be
used as the on-board to off-board network communications protocol.
(i) Deficiencies and alternate fueled vehicles. Upon application by
the manufacturer, the Administrator may accept an OBD system as
compliant even though specific requirements are not fully met. Such
compliances without meeting specific requirements, or deficiencies,
will be granted only if compliance would be infeasible or unreasonable
considering such factors as, but not limited to, technical feasibility
of the given monitor, lead time and production cycles including phase-
in or phase-out of engines or vehicle designs and programmed upgrades
of computers, and if any unmet requirements are not carried over from
the previous model year except where unreasonable hardware
modifications would be necessary to correct the non-compliance, and the
manufacturer has demonstrated an acceptable level of effort toward
compliance as determined by the Administrator. Furthermore, EPA will
not accept any deficiency requests that include the complete lack of a
required diagnostic monitor, with the possible exception of the special
provisions for alternate fueled vehicles. For alternate fueled vehicles
(e.g. natural gas, liquefied petroleum gas, methanol, ethanol),
beginning with the model year for which alternate fuel emission
standards are applicable and extending through the 2004 model year,
manufacturers may request the Administrator to waive specific
monitoring requirements of this section for which monitoring may not be
reliable with respect to the use of the alternate fuel. At a minimum,
alternate fuel vehicles shall be equipped with an OBD system meeting
OBD requirements to the extent feasible as approved by the
Administrator.
(j) Demonstration of compliance with California OBD II requirements
(Title 13 California Code Sec. 1968.1), as modified pursuant to
California Mail Out 96-34 (October 25, 1996), shall
satisfy the requirements of this section, except that compliance with
Title 13 California Code Secs. 1968.1(b)(4.2.2), pertaining to
evaporative leak detection, and 1968.1(d), pertaining to tampering
protection, are not required to satisfy the requirements of this
section, and 1968.1(m)(5.1), pertaining to alternate fuel vehicles,
shall not apply.
8. A new section 86.099-30 is added to read as follows:
Sec. 86.99-30 Certification.
Section 86.099-30 includes text that specifies requirements that
differ from Sec. 86.094.30, Sec. 86.095-30, Sec. 86.096-30, or
Sec. 86.098-30. Where a paragraph in Sec. 86.094.30, Sec. 86.095-30,
Sec. 86.096-30, or 86.098-30 is identical and applicable to
Sec. 86.099-30, this may be indicated by specifying the corresponding
paragraph and the statement ``[Reserved]. For guidance see
Sec. 86.094.30.'' or ``[Reserved]. For guidance see Sec. 86.095-30.''
or ``[Reserved]. For guidance see Sec. 86.096-30.'' or ``[Reserved].
For guidance see Sec. 86.098-30.''.
(a)(1) and (a)(2) [Reserved]. For guidance see Sec. 86.094-30.
(a)(3)(i) [Reserved]. For guidance see Sec. 86.098-30.
(a)(3)(ii) through (a)(4)(ii) [Reserved]. For guidance see
Sec. 86.095-30.
(a)(4)(iii) introductory text through (a)(4)(iii)(C) [Reserved].
For guidance see Sec. 86.094-30.
(a)(4)(iv) introductory text [Reserved]. For guidance see
Sec. 86.095-30.
(a)(4)(iv)(A) through (a)(12) [Reserved]. For guidance see
Sec. 86.094-30.
(a)(13) [Reserved]. For guidance see Sec. 86.095-30.
(a)(14) [Reserved]. For guidance see Sec. 86.094-30.
(a)(15) through (a)(18) [Reserved]. For guidance see Sec. 86.096-
30.
(a)(19) introductory text through (a)(19)(iii) [Reserved]. For
guidance see Sec. 86.098-30.
(b)(1) introductory text through (b)(1)(i)(B) [Reserved]. For
guidance see Sec. 86.094-30.
(b)(1)(i)(C) [Reserved]. For guidance see Sec. 86.098-30.
(b)(1)(ii) through (b)(1)(iv) [Reserved]. For guidance see
Sec. 86.094-30.
(b)(2) [Reserved]. For guidance see Sec. 86.098-30.
(b)(3) through (b)(4)(i) [Reserved]. For guidance see Sec. 86.094-
30.
(b)(4)(ii) [Reserved]. For guidance see Sec. 86.098.30.
(b)(4)(ii)(A) [Reserved]. For guidance see Sec. 86.094-30.
(b)(4)(ii)(B) through (b)(4)(iv) [Reserved]. For guidance see
Sec. 86.098-30.
(b)(5) through (e) [Reserved]. For guidance see Sec. 86.094.30.
(f) For engine families required to have an emission control
diagnostic system (an OBD system), certification will not be granted
if, for any emission data vehicle, assembly line vehicle, or other test
vehicle approved by the Administrator, the malfunction indicator light
does not illuminate under any of the following circumstances. Only
paragraph (f)(4) of this section applies to diesel cycle
[[Page 28945]]
vehicles where such vehicles are so equipped.
(1) A catalyst is replaced with a deteriorated or defective
catalyst, or an electronic simulation of such, resulting in an increase
of 1.5 times the HC standard above the HC emission level measured using
a representative 4000 mile catalyst system.
(2) An engine misfire condition is induced resulting in exhaust
emissions exceeding 1.5 times the applicable standards for HC, CO or
NOX.
(3) Any oxygen sensor is replaced with a deteriorated or defective
oxygen sensor, or an electronic simulation of such, resulting in
exhaust emissions exceeding 1.5 times the applicable standard for HC,
CO or NOX.
(4) A vapor leak is introduced in the evaporative and/or refueling
system (excluding the tubing and connections between the purge valve
and the intake manifold) greater than or equal in magnitude to a leak
caused by a 0.040 inch diameter orifice, or the evaporative purge air
flow is blocked or otherwise eliminated from the complete evaporative
emission control system.
(5) A malfunction condition is induced in any emission-related
powertrain system or component, including but not necessarily limited
to, the exhaust gas recirculation (EGR) system, if equipped, the
secondary air system, if equipped, and the fuel control system,
singularly resulting in exhaust emissions exceeding 1.5 times the
applicable emission standard for HC, CO or NOX.
(6) A malfunction condition is induced in an electronic emission-
related powertrain system or component not otherwise described above
that either provides input to or receives commands from the on-board
computer resulting in a measurable impact on emissions.
[FR Doc. 97-13749 Filed 5-27-97; 8:45 am]
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