issue-1996-01-24•Federal Register final rules — 1996-01-24
Federal Register final rules — 1996-01-24
issue-1996-01-24Federal Register final rules — 1996-01-24Regulation
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. 96-972 Indirect Food Additives: Adjuvants, Production Aids, and Sanitizers
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1830-1831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-972]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 178
[Docket No. 95F-0171]
Indirect Food Additives: Adjuvants, Production Aids, and
Sanitizers
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations to provide for the safe use of 2-[[2,4,8,10-
tetrakis(1,1-dimethylethyl)dibenzo[d,f][1,3,2]-dioxaphosphepin-6-
yl]oxy]-N,N-bis[2-[[2,4,8,10-tetrakis(1,1-dimethylethyl)dibenzo
[d,f][1,3,2]dioxaphosphepin-6-yl]oxy]ethyl]ethanamine as a process
stabilizer for high density olefin copolymers intended for use in
contact with food. This action is in response to a petition filed by
Ciba-Geigy Corp.
DATES: Effective January 24, 1996; written objections and requests for
a hearing by February 23, 1996.
ADDRESSES: Submit written objections to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857.
[[Page 1831]]
FOR FURTHER INFORMATION CONTACT: Vir D. Anand, Center for Food Safety
and Applied Nutrition (HFS-216), Food and Drug Administration, 200 C
St. SW., Washington, DC 20204, 202-418-3081.
SUPPLEMENTARY INFORMATION: In a notice published in the Federal
Register of July 12, 1995 (60 FR 35912), FDA announced that a food
additive petition (FAP 5B4469) had been filed by Ciba-Geigy Corp.,
Seven Skyline Dr., Hawthorne, NY 10532-2188. The petition proposed to
amend the food additive regulations in Sec. 178.2010 Antioxidants and/
or stabilizers for polymers (21 CFR 178.2010) to provide for the safe
use of 2-[[2,4,8,10-tetrakis(1,1-dimethylethyl)dibenzo[d,f][1,3,2]-
dioxaphosphepin-6-yl]oxy]-N,N- bis[2-[[2,4,8,10-tetrakis(1,1-
dimethylethyl)dibenzo [d,f][1,3,2]dioxaphosphepin-6-
yl]oxy]ethyl]ethanamine as a process stabilizer in high density olefin
copolymers intended for use in contact with food.
FDA has evaluated data in the petition and other relevant material.
The agency concludes that the proposed use of the additive is safe,
that the additive will have the intended technical effect, and that the
regulations in Sec. 178.2010 should be amended as set forth below.
In accordance with Sec. 171.1(h) (21 CFR 171.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition are available for inspection at the
Center for Food Safety and Applied Nutrition by appointment with the
information contact person listed above. As provided in 21 CFR
171.1(h), the agency will delete from the documents any materials that
are not available for public disclosure before making the documents
available for inspection.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
Any person who will be adversely affected by this regulation may at
any time on or before February 23, 1996, file with the Dockets
Management Branch (address above) written objections thereto. Each
objection shall be separately numbered, and each numbered objection
shall specify with particularity the provisions of the regulation to
which objection is made and the grounds for the objection. Each
numbered objection on which a hearing is requested shall specifically
so state. Failure to request a hearing for any particular objection
shall constitute a waiver of the right to a hearing on that objection.
Each numbered objection for which a hearing is requested shall include
a detailed description and analysis of the specific factual information
intended to be presented in support of the objection in the event that
a hearing is held. Failure to include such a description and analysis
for any particular objection shall constitute a waiver of the right to
a hearing on the objection. Three copies of all documents shall be
submitted and shall be identified with the docket number found in
brackets in the heading of this document. Any objections received in
response to the regulation may be seen in the Dockets Management Branch
between 9 a.m. and 4 p.m., Monday through Friday.
List of Subjects in 21 CFR Part 178
Food additives, Food packaging.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Director, Center for Food Safety and Applied
Nutrition, 21 CFR part 178 is amended as follows:
PART 178--INDIRECT FOOD ADDITIVES: ADJUVANTS, PRODUCTION AIDS, AND
SANITIZERS
1. The authority citation for 21 CFR part 178 continues to read as
follows:
Authority: Secs. 201, 402, 409, 721 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 321, 342, 348, 379e).
2. Section 178.2010 is amended in the table in paragraph (b) by
alphabetically adding a new entry under the headings ``Substances'' and
``Limitations'' to read as follows:
Sec. 178.2010 Antioxidants and/or stabilizers for polymers.
* * * * *
(b) * * *
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Substances Limitations
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-- * * * *
* * *
2-[[2,4,8,10-Tetrakis(1,1- For use only:
dimethylethyl)dibenzo[d,f][1,3,2]- 1. At levels not to exceed
dioxaphosphepin-6-yl]oxy]-N,N-bis[2- 0.075 percent by weight of
[[2,4,8,10-tetrakis(1,1- olefin copolymers complying
dimethylethyl)dibenzo[d,f][1,3,2]dioxa with Sec. 177.1520(c) of this
phosphepin-6- yl]oxy]ethyl]ethanamine chapter, item 3.1a or 3.2a
(CAS Reg. No. 80410-33-9). (where the density of each of
these polymers is not less
than 0.94 gram per cubic
centimeter), and under
conditions of use B through H
described in Table 2 of Sec.
176.170(c) of this chapter.
* * * *
* * *
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Dated: January 5, 1996.
Fred R. Shank,
Director, Center for Food Safety and Applied Nutrition.
[FR Doc. 96-972 Filed 1-23-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-961 Sea Turtle Conservation; Restrictions Applicable to Fishery Activities; Summer Flounder Fishery-Sea Turtle Protection Area
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1845-1848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-961]
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[[Page 1846]]
DEPARTMENT OF COMMERCE
50 CFR Parts 217 and 227
[Docket No. 960116009-6009-01; I.D. 110695D]
RIN 0648-AE12
Sea Turtle Conservation; Restrictions Applicable to Fishery
Activities; Summer Flounder Fishery-Sea Turtle Protection Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule requires summer flounder bottom trawlers to
have a NMFS-approved turtle excluder device (TED) installed in any net
that is rigged for fishing in the waters off Virginia and North
Carolina from 37 deg.05' N. lat. (Cape Charles, VA) southward to
33 deg.35' N. lat. (North Carolina-South Carolina border) year round,
except for trawlers north of 35 deg.46.1' N. lat. (Oregon Inlet, NC),
which are exempt from this requirement from January 15 through March 15
each year. However due to unavoidable delays, the exemption from this
requirement in 1996 begins on January 23, 1996. This final rule allows
the summer flounder bottom trawl fishery to continue fishing while
providing adequate protection to endangered and threatened sea turtles.
EFFECTIVE DATE: January 23, 1996.
ADDRESSES: Requests for copies of the environmental assessment (EA) or
Biological Opinion prepared for this rule should be addressed to the
Chief, Endangered Species Division, Office of Protected Resources,
NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, 813-570-5312, or
Phil Williams, 301-713-1401, or Doug Beach, 508-281-9291.
SUPPLEMENTARY INFORMATION:
Background
All sea turtles that occur in U.S. waters are listed as either
endangered or threatened under the Endangered Species Act of 1973, 16
U.S.C. 1531 et seq. (ESA). According to the 1990 report on the decline
of sea turtles, published by the National Academy of Sciences,
incidental capture in shrimp trawls is by far the leading cause of
human-induced mortality to sea turtles in the water. However,
collectively, activities in non-shrimp fisheries, which include the
summer flounder bottom trawl fishery, constitute the second largest
source.
In a 1991 biological opinion in conjunction with Amendment 2 to the
Fishery Management Plan for the Summer Flounder Fishery, NMFS concluded
that the unrestricted operation of this fishery is likely to jeopardize
the continued existence of the Kemp's ridley sea turtle, and provided,
as a reasonable and prudent alternative, the use of tow-time limits and
an observer program. Additional measures pursuant to the sea turtle
conservation regulations at 50 CFR part 227 required the use of TEDs by
the summer flounder fishery in certain areas in which bottom trawling
occurred when sea turtles were present.
NMFS has taken a series of actions to require the use of TEDs in
the bottom trawl fishery for summer flounder from 37 deg.05' N. lat.
(Cape Charles, VA) southward to 33 deg.35' N. lat. (North Carolina-
South Carolina border), defined as the ``summer flounder fishery-sea
turtle protection area'' (hereinafter referred to as the protection
area) and to require vessels to carry an observer, if requested to do
so. These requirements were initially effective November 15, 1992,
through December 15, 1992 (57 FR 53603, November 12, 1992), were
extended from December 16, 1992, through January 14, 1993 (57 FR 60135,
December 18, 1992), were modified and extended from January 7, 1993,
through February 8, 1993 (58 FR 4088, January 13, 1993), and were
extended from February 10, 1993, through April 10, 1993 (58 FR 5884,
February 16, 1993). On September 20, 1993 (58 FR 48797) an interim
final rule again required TED use by summer flounder trawlers in the
bottom trawl fishery for summer flounder in the protection area defined
above. On March 7, 1994 (59 FR 10584) the northern boundary of the
protection area was moved south for a 60-day period to Oregon Inlet,
NC. The specific requirements, their background and rationale, comments
and responses to comments, and summaries of pertinent biological
opinions were included in the cited Federal Register publications and
are not repeated here. In addition, NMFS approved the Flounder TED
described at 50 CFR 227.72(e)(4)(ii)(A) on October 20, 1993 (58 FR
54066) that was developed specifically for use in the summer flounder
bottom trawl fishery.
Sea Turtle/Fisheries Interactions
NMFS has determined, based on past interactions between sea turtles
and the summer flounder fishery, that bottom trawl nets fished without
TEDs for summer flounder can capture sea turtles at a rate comparable
with that of shrimp trawl nets fished without TEDs along the southern
U.S. Atlantic coast. TED use is now required at all times in the shrimp
trawl fishery.
In addition to documented, observed takes of endangered and
threatened species of sea turtles in summer flounder trawls, sea turtle
strandings in North Carolina have long been correlated with the
activity of the summer flounder fleet. Street (1987) analyzed sea
turtle stranding data from 1980-86 from North Carolina ocean beaches
and concluded that the summer flounder fishery was responsible for 85
percent of the 456 sea turtle strandings that occurred during the
October through April period when the summer flounder fishery is
active. Even so, strandings are a minimal indication of actual sea
turtle interactions with fishing activities: During the 1991-92
flounder season, the number of dead turtles that washed up on the
beaches represented a maximum of 7 to 13 percent of the estimated
fishery-induced mortalities (Epperly et al. in press).
In the months of October and November, when shallow, nearshore
waters are still warm, sea turtles and summer flounder are present in
higher numbers. Sea turtle presence is indicated by the strandings in
North Carolina that occur coincidentally with the operation of the
summer flounder bottom trawl fishery. From October 1993 through March
1994, there were 50 sea turtle strandings in North Carolina, and in the
1994-95 flounder season, 75 strandings occurred in North Carolina.
Based on the recent observer data that document direct takes in the
summer flounder fishery and the presence of sea turtles indicated by
strandings, NMFS believes there continues to be a need to require the
use of NMFS-approved TEDs in the summer flounder fishery.
NMFS has determined that the area where TEDs must be used in the
summer flounder fishery can be seasonally decreased with minimal risk
to sea turtles, based on temperature-driven distribution of turtles.
Data acquired by satellite sensors indicate that sea surface
temperatures off the coast of North Carolina north of Oregon Inlet are
generally less than 11 deg.C during the months of January through
March. Aerial surveys conducted from November 1991 through March 1992
indicate that turtle abundance is related to water temperatures, with
most turtles documented along the western edge of the Gulf Stream from
the vicinity of Cape Hatteras southward where water temperatures were
greater than 11 deg.C (Chester et al., 1994; Epperly et al., 1995).
NMFS has determined, based on reports from observers aboard trawlers
[[Page 1847]]
and from the scientific literature, that the probability of sea turtle
captures is minimal when surface water temperatures fall below
11 deg.C.
Except for the cold months of January through March, the co-
occurrence of sea turtles and bottom trawling activities is likely in
the waters off North Carolina and Virginia. Therefore, NMFS believes
that the interim final rule (58 FR 48797, September 20, 1993) should be
revised to move the northern boundary of the protection area south to
Oregon Inlet, NC from January 15 through March 15 each year, and be
adopted as final. NMFS will monitor conditions to determine if
additional sea turtle protection measures are necessary.
Multi-Species Management
NMFS has reinitiated consultation on the Fishery Management Plan
for the Summer Flounder Fishery to include the fisheries management of
black sea bass and scup under the same biological opinion. Although the
Mid-Atlantic Fishery Management Council has developed separate
management plans for the scup and black sea bass fisheries, both NMFS
and the Council have investigated the concept of managing the summer
flounder, scup, and black sea bass, fisheries as one multi-species unit
because the stocks of these three fisheries behave similarly in their
movements north to south and offshore to inshore, and in fisheries
targeting one species or another there is often a bycatch of the other
species. Shepherd and Terceiro's (1994) analysis of commercial
interactions between the fisheries showed that ``trips landing summer
flounder without scup or black sea bass were most frequent (37
percent). The second largest component were trips consisting of all
three species (30.7 percent). Trips landing only black sea bass, only
scup or scup and black sea bass were relatively rare (1.9, 4.5, and 4.1
percent respectively). Most trips (56.6 percent) landed a multi-species
catch with at least two of the three species.'' This study included
both the Mid-Atlantic Bight and New England waters. Based on
unpublished NMFS general canvass data, bottom otter trawls were used
for approximately 74 percent of the commercial scup and 56 percent of
the commercial black sea bass landings for the period between 1983 and
1992. A portion of those landings comes specifically from flynet gear
that is used throughout the September-April season to target schools of
weakfish, croaker, bluefish, scup and butterfish higher in the water
column.
NMFS is considering implementing observer coverage, through the
section 7 ESA process, on boats targeting these species with this gear
type to provide specific, empirical data to assess the degree of
interaction with listed species, and NMFS is encouraging development of
a functional TED for flynets to fully assess the impact of this gear.
Comments on the Interim Final Rule
NMFS received a comment from the Center for Marine Conservation
during the comment period for the interim final rule (58 FR 48797,
September 20, 1993). NMFS' response was published on March 7, 1994 (59
FR 10584) and is not repeated here. NMFS also received a comment from
the North Carolina Fisheries Association, Inc., in February, 1995,
requesting that the northern boundary of the protection area be moved
south automatically each year. NMFS agrees for the reasons set forth
herein.
Changes from the Interim Final Rule
This final rule adopts as final the provisions of the interim final
rule (58 FR 48797, September 20, 1993) with one change regarding the
seasonal adjustment of the northern boundary of the protection area.
Summer flounder bottom trawlers in offshore waters south of Cape
Charles, VA, to the North Carolina-South Carolina border, are required
to have an NMFS-approved TED installed in each net that is rigged for
fishing in the summer flounder fishery-sea turtle protection area year
round except for trawlers north of 35 deg.46.1' N. lat. (Oregon Inlet,
NC) which are exempt from the requirement from January 15 through March
15 each year. However due to unavoidable delays, the exemption from
this requirement in 1996 begins on January 23, 1996. While there is a
small risk to sea turtles associated with this exemption, NMFS has
determined that this risk is minimal and will not jeopardize the
continued existence of endangered and threatened sea turtles in a
biological opinion prepared in conjunction with this final rule. While
the seasonal exemption represents a change to the interim final rule
currently in force, it is consistent with past NMFS policy and previous
requirements. NMFS moved the northern boundary of the protection area
south to Oregon Inlet during the 1992-93 season (58 FR 4088, January
13, 1993) and during the 1993-94 season (59 FR 10584, March 7, 1994).
While the exemption was not provided during the 1994-95 season due to
the lack of documented trawling effort in the affected area, NMFS
believes that a permanent seasonal boundary change is justified. For
these reasons, NMFS is incorporating the seasonal exemption from Cape
Charles, VA, to Oregon Inlet, NC in the final rule. While previous
rules implementing the exemption in 1993 and 1994 were based primarily
on water temperatures, NMFS believes that the exemption in a permanent
rule should be based on fixed dates to provide more certainty and
consistency to fishermen. NMFS will, however, continue to monitor
climatic conditions such as water temperature to ensure that turtles
are not likely to be present in the areas where TED use is not
required.
Based on this monitoring, NMFS may determine to reinstate the TED
requirement north to Cape Charles, VA prior to March 15 or invoke
additional conservation measures to protect sea turtles pursuant to 50
CFR 227.72(e)(6). Under that provision, the Assistant Administrator for
Fisheries, NOAA (AA) may at any time, modify the requirements of this
rule through notification in the Federal Register, if necessary, to
ensure adequate protection of endangered and threatened sea turtles.
Under this procedure, the AA will impose any necessary additional or
more stringent measures, if he or she determines that summer flounder
trawl vessels are having a significant adverse affect on sea turtles
and additional takings are unauthorized pursuant to 50 CFR
227.72(e)(6)(ii). Likewise, conservation measures may be modified if
the incidental take for the fishery is projected to reach the
incidental take level established by the biological opinion for this
rule issued as a result of consultation under section 7 of the ESA.
The AA will impose additional conservation measures on this fishery
if the incidental take level is approached or exceeded, or if
significant or unanticipated levels of lethal or nonlethal takings or
strandings of sea turtles associated with summer flounder fishing
activities occur. Such additional measures may include reinstating the
TED requirement from Oregon Inlet to Cape Charles between January 15
and March 15 each year, or expanding the restricted area or the time
during which TEDs are required or impose requirements to carry NMFS-
approved observers at the expense of vessel owners or operators. The AA
may withdraw or modify the requirement for specific conservation
measures or any restriction on fishing activities if the AA determines
that such action is warranted. Notification of any additional sea
turtle conservation measures, will be published in the Federal
Register.
[[Page 1848]]
References
Previous references cited that are not included below are available
in the biological opinion prepared for this action (see ADDRESSES).
Shepherd, G.R. and M. Terceiro. 1994. The Summer Flounder, Scup,
and Black Sea Bass Fishery of the Middle Atlantic Bight and Southern
New England Waters. NOAA Technical Report, NMFS 122. 13 pp.
Classification
This rule has been determined to be not significant for purposes of
E.O. 12866.
The interim final rule with one change--the seasonal adjustment of
the northern boundary of the protection area--is adopted as final
without further notice and opportunity for further public comment. The
public has had ample opportunity to comment on the boundary adjustment
in previous years, and these comments were responded to in previous
years (58 FR 8554, February 16, 1993; 58 FR 48797, September 10, 1993;
59 FR 10584, March 7, 1994). No useful purpose would be served by
providing additional opportunity for public comment.
Since the exemption for trawlers north of Oregon Inlet, NC, from
January 15 to March 15 each year relieves a restriction on the fishery,
under 5 U.S.C. 553(d)(1), it is not subject to a 30-day delay in
effective date.
The AA prepared an EA for the final rule for Amendment 2 to the
Fishery Management Plan for the Summer Flounder Fishery (57 FR 57348,
December 4, 1992). A copy of the EA prepared for this final rule is
available (see ADDRESSES).
List of Subjects
50 CFR Part 217
Endangered and threatened species, Exports, Fish, Imports, Marine
mammals, Transportation.
50 CFR Part 227
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Dated: January 18, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, the interim final rule
amending 50 CFR parts 217 and 227, which was published at 58 FR 48797
on September 20, 1993, is adopted as a final rule with the following
changes:
PART 217--GENERAL PROVISIONS
1. The authority citation for part 217 continues to read as
follows:
Authority: 16 U.S.C. 1531-1544; and 16 U.S.C. 742a et seq.,
unless otherwise noted.
2. In Sec. 217.12, in the definition for ``Summer flounder fishery-
sea turtle protection area'', paragraph (2) is removed.
PART 227--THREATENED FISH AND WILDLIFE
3. The authority citation for part 227 continues to read as
follows:
Authority: 16 U.S.C. 1531 et seq.
4. In Sec. 227.72, paragraph (e)(2)(iii)(A) is revised, paragraphs
(B) and (C) are redesignated as paragraphs (C) and (D), respectively,
and paragraph (B) is added, to read as follows:
Sec. 227.72 Exceptions to prohibitions.
* * * * *
(e) * * *
(2) * * *
(iii) Gear requirement--summer flounder trawlers--(A) TED
requirement. Except as provided in paragraph (e)(2)(iii)(B) of this
section, any summer flounder trawler in the summer flounder fishery-sea
turtle protection area must have an approved TED (as defined in
Sec. 217.12 of this chapter) installed in each net that is rigged for
fishing. A net is rigged for fishing if it is in the water, or if it is
shackled, tied, or otherwise connected to any trawl door or board, or
to any tow rope, cable, pole or extension, either on board or attached
in any manner to the summer flounder trawler.
(B) Exemptions from the TED requirement. Any summer flounder
trawler north of 35 deg.46.1' N. lat. (Oregon Inlet, NC) from January
15 through March 15 annually is exempt from the TED requirement of
paragraph (e)(2)(iii)(A) of this section, unless the Assistant
Administrator determines that TED use is necessary to protect sea
turtles or ensure compliance, pursuant to the procedures of paragraph
(e)(6) of this section.
* * * * *
[FR Doc. 96-961 Filed 1-23-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-949 Limited Access Management of Federal Fisheries In and Off of Alaska; Relieving Transfer Restrictions on Individual Fishing Quota Shares
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1843-1845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-949]
=======================================================================
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[[Page 1844]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 676
[Docket No. 951002243-6004-02; I.D. 092695B]
RIN 0648-AG99
Limited Access Management of Federal Fisheries In and Off of
Alaska; Relieving Transfer Restrictions on Individual Fishing Quota
Shares
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule that would implement Amendment 32 to
the Fishery Management Plan for the Groundfish Fishery of the Bering
Sea and Aleutian Islands Area (BSAI) and Amendment 36 to the Fishery
Management Plan for Groundfish of the Gulf of Alaska (GOA). This final
rule is necessary to facilitate full utilization of the allocated
resources managed under the Individual Fishing Quota (IFQ) Program for
the Pacific halibut and sablefish fixed gear fisheries in and off of
Alaska and is intended to relieve transfer restrictions on Community
Development Quota compensation quota shares (CDQ compensation QS),
thereby allowing transfers to persons that could use the resulting IFQ
to harvest the resource.
EFFECTIVE DATE: February 23, 1996.
ADDRESSES: Copies of the final rule and the Regulatory Impact Review
(RIR) for this action may be obtained from: Fisheries Management
Division, Alaska Region, NMFS, 709 W. 9th Street, Room 453, Juneau, AK
99801, or P.O. Box 21668, Juneau, AK 99802, Attention: Lori J. Gravel.
FOR FURTHER INFORMATION CONTACT: John Lepore, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The IFQ Program for the Pacific halibut (Hippoglossus stenolepis)
and sablefish (Anoplopoma fimbria) fixed gear fisheries in the areas
defined in 50 CFR 676.10 (b) and (c) is a regulatory regime recommended
by the North Pacific Fishery Management Council (Council) to promote
the conservation and management of these fisheries and to further the
objectives of the Magnuson Fishery Conservation and Management Act and
the Northern Pacific Halibut Act. Persons holding quota share (QS),
which represents a transferable harvest privilege, receive an annual
allocation of IFQ. Persons receiving an annual allocation of IFQ are
authorized to harvest, within specified limitations, IFQ species.
Further information on the implementation of the IFQ Program, and the
rationale supporting it, is contained in the preamble to the final rule
implementing the IFQ Program published November 9, 1993 (58 FR 59375).
Additions and/or changes to the final rule implementing the IFQ Program
were published June 1, 1994 (59 FR 28281); August 24, 1994 (59 FR
43502), corrected October 13, 1994 (59 FR 51874); October 7, 1994 (59
FR 51135); February 2, 1995 (60 FR 6448); March 3, 1995 (60 FR 11916);
March 6, 1995 (60 FR 12152); May 5, 1995 (60 FR 22307); and August 31,
1995 (60 FR 45378).
The CDQ Program for Pacific halibut and sablefish was proposed and
implemented in conjunction with the IFQ Program. The CDQ Program
apportioned designated percentages of the annual fixed gear total
allowable catch (TAC) for halibut and sablefish to eligible western
Alaska communities. The harvest of these designated percentages was
intended to provide residents of eligible communities with stable,
long-term employment and to increase the participation of residents of
eligible communities in near-shore fisheries.
Apportioning designated percentages of the annual fixed gear TAC
for Pacific halibut and sablefish to eligible western Alaska
communities reduced the amount of that TAC available for harvest by
persons receiving annual allocations of IFQ. Therefore, CDQ
compensation QS were issued as partial compensation to persons who
received QS in CDQ areas, because the amount of Pacific halibut and
sablefish available for harvest with IFQ in CDQ areas was reduced.
The final rule implementing Amendments 32 and 36 is intended to
increase the remunerative value of CDQ compensation QS by relieving the
existing transfer restrictions on initial recipients of those shares.
Transfer restrictions are relieved by (1) exempting some CDQ
compensation QS from the block provision, and (2) allowing some CDQ
compensation QS to be transferred across vessel length categories.
Exemption From the Block Provision
The block provision was added to the IFQ Program to prevent
excessive consolidation of fishing privileges, to promote higher levels
of harvesting employment, and to provide diversity in fishing
operations participating in the IFQ program. Preventing excessive
consolidation was accomplished by (1) issuing as a block all initial
allocations of QS that represented less than 20,000 lb (9 mt) of IFQ
based on the 1994 TAC and (2) restricting persons from holding more
than two blocks for each IFQ species and IFQ regulatory area. One
unintended effect was the blocking of all CDQ compensation QS.
Blocked CDQ compensation QS, especially small blocks (several
pounds to several hundred pounds of IFQ), is difficult to market
because any block, no matter how small, is counted as part of the two-
block restriction. This difficulty in marketing is contrary to the
purpose of CDQ compensation QS, which is to compensate persons that
received less QS in their traditional fishing areas because of
allocations of the TAC to the CDQ Program. Exempting CDQ compensation
QS from the block provision provides greater flexibility to persons
that plan to transfer their CDQ compensation QS.
Transfer Across Catcher Vessel Length Categories
The Council included vessel length categories in the IFQ Program
because of significant public concern that harvest privileges would be
consolidated excessively into large vessel fishing operations. By
restricting transfers across vessel length categories, the Council
ensured that the fixed gear fishing fleet would remain relatively
diversified and similar in overall character to the fleet prior to the
program's implementation. The Council determined that maintaining a
diversified fleet was critical to the socioeconomic well-being of
coastal communities in Alaska that rely, in part, on the small vessel
fleet as a source of revenue.
This objective would not be contradicted by a 1-year period of
relief from the restriction against transferring across vessel length
categories. Another vessel category designated by fish product type
(Category ``A''--vessels of any length authorized to process IFQ
species) was also included in the IFQ Program; however, because
Category ``A'' is not restricted by length it is not included in the 1-
year period of relief. A large portion of the CDQ compensation QS
recipients are small vessel operators based in coastal communities
located on the Bering Sea. This action would enable small vessel
operators in the BSAI management area for sablefish and in IFQ
regulatory areas 4A, 4B, 4C, and 4D for halibut to transfer their CDQ
compensation QS in
[[Page 1845]]
the GOA to larger vessel operators who, in turn, could transfer their
initially issued QS in the BSAI management area for sablefish and in
IFQ regulatory areas 4A, 4B, 4C, and 4D for halibut to the small vessel
operators. The coastal communities that rely on the small vessel fleet
would be benefited by having IFQ in more accessible areas. Further,
this action would not significantly change the overall character of the
fleet because CDQ compensation QS accounts for less than 3 percent of
the total amount of QS; therefore, the net gain or loss in any one
vessel length category likely would be insignificant.
Comments on and Changes to the Proposed Rule
NMFS received no comments on the proposed rule. As no changes were
suggested, NMFS has determined that the rule, as proposed, implements
Amendments 32 and 36 as intended by the Council. The final rule
contains two wording changes from the proposed rule. Both changes were
for clarification only; the effects of the regulations in the final
rule are the same as were proposed.
Classification
An RIR was prepared for this final rule that describes the
management background, the purpose and need for action, the management
action alternatives, and the social impacts of the alternatives. The
RIR also estimates the total number of small entities affected by this
action, and analyzes the economic impact on those small entities.
Copies of the RIR can be obtained from NMFS (see ADDRESSES).
The Assistant General Counsel for Legislation and Regulation
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this action does not have a significant economic
impact on a substantial number of small entities.
This final rule has been categorically excluded from further
environmental assessment pursuant to NOAA Administrative Order 216-6,
section 6.02b.3.(b)(ii)(aa) because the actions pursuant to this rule
do not result in a significant change in the original IFQ Program.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid Office of Management and Budget (OMB)
control number. This final rule will not change the collection of
information approved by OMB, OMB Control Number 0648-0272, for the
Pacific halibut and sablefish IFQ Program.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 676
Alaska fisheries, Reporting and recordkeeping requirements.
Dated: January 18, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 676 is amended
as follows:
PART 676--LIMITED ACCESS MANAGEMENT OF FEDERAL FISHERIES IN AND OFF
OF ALASKA
1. The authority citation for 50 CFR part 676 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq. and 1801 et seq.
2. In Sec. 676.21, paragraph (h) is added to read as follows:
Sec. 676.21 Transfer of QS and IFQ.
* * * * *
(h) Transfer across catcher vessel categories. (1) Persons issued
CDQ compensation QS in a catcher vessel category, pursuant to
Sec. 676.24(i), and in an IFQ regulatory area in which they do not hold
QS other than CDQ compensation QS, may use that CDQ compensation QS on
any catcher vessel. This exemption from catcher vessel categories ends
upon the first transfer of the CDQ compensation QS. CDQ compensation QS
being transferred will be permanently assigned to a specific catcher
vessel category as designated by the person receiving the transfer.
(2) (Applicable until February 24, 1997). Catcher vessel QS
transferred as partial or total consideration for the transfer of CDQ
compensation QS may be redesignated into a new catcher vessel category
if the CDQ compensation QS being transferred can be used on any catcher
vessel pursuant to the exemption in paragraph (h)(1) of this section
and the person to which that CDQ compensation QS was issued is party to
the transfer.
(3) For purposes of this paragraph (h), CDQ compensation QS is
quota share issued as compensation for Pacific halibut and sablefish
harvest privileges foregone due to the CDQ Program, as provided in
Sec. 676.24(i).
3. In Sec. 676.22, paragraph (a) is revised to read as follows:
Sec. 676.22 Limitations on use of QS and IFQ.
(a) The QS or IFQ specified for one IFQ regulatory area and one
vessel category must not be used in a different IFQ regulatory area or
vessel category, except as provided in paragraph (i)(3) of this
section, or in Sec. 676.21(h)(1).
* * * * *
4. In Sec. 676.24, paragraph (i)(3) is revised to read as follows:
Sec. 676.24 Western Alaska Community Development Quota Program.
* * * * *
(i) * * *
(3) Persons initially issued QS for IFQ regulatory areas in which a
portion of the TAC is allocated to the CDQ Program will be compensated
for halibut and sablefish harvest privileges foregone due to the CDQ
Program. If a person does not hold QS in an IFQ regulatory area on the
date compensation is issued, that person's compensation will be issued
as unblocked. If a person does hold QS in an IFQ regulatory area on the
date compensation is issued, that person's compensation will be added
to their existing QS in that IFQ regulatory area. The resulting QS
amount will be blocked or unblocked according to the criteria found at
Sec. 676.20(a). Compensation will be calculated for each non-CDQ area
using the following formula:
QN=(QC x QSPN x RATE) /
(SUMCDQ-[RATE x SUMTAC] ([1-RATE] x TACAVE)
(QSPC x [CDQPCT-RATE])
Where:
QN=quota share in non-CDQ area
QC=quota share in CDQ area
QSPN=quota share pool in non-CDQ area (as existing on January 31,
1995)
RATE=SUMCDQ/average of the TAC (1988-1994) for all CDQ and non-CDQ
areas
TACAVE=average of the TAC (1988-1994) for CDQ area
QSPC=quota share pool in CDQ area (as existing on January 31,
1995)
CDQPCT=CDQ percentage for CDQ area
SUMCDQ=sum [TACAVE x CDQPCT]
SUMTAC=sum [TACAVE]
* * * * *
[FR Doc. 96-949 Filed 1-23-96; 8:45 am]
BILLING CODE 3510-22-P
Complete official Federal Register PDF
FR Doc. 96-942 Indirect Food Additives: Adjuvants, Production Aids, and Sanitizers
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1829-1830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-942]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 178
[Docket No. 95F-0172]
Indirect Food Additives: Adjuvants, Production Aids, and
Sanitizers
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations to provide for the safe use of disodium
decanedioate as a corrosion/rust preventative for greases used as
lubricants with incidental food contact. This action is in response to
a petition filed by Ciba-Geigy Corp.
DATES: Effective January 24, 1996; written objections and requests for
a hearing by February 23, 1996.
ADDRESSES: Submit written objections to the Dockets Management Branch
(HFA-305), Food and Drug Administration, rm. 1-23, 12420 Parklawn Dr.,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Vir D. Anand, Center for Food Safety
and Applied Nutrition (HFS-216), Food and Drug Administration, 200 C
St. SW., Washington, DC 20204, 202-418-3081.
SUPPLEMENTARY INFORMATION: In a notice published in the Federal
Register of July 20, 1995 (60 FR 37453), FDA announced that a food
additive petition
[[Page 1830]]
(FAP 5B4466) had been filed by Ciba-Geigy Corp., Seven Skyline Dr.,
Hawthorne, NY 10532-2188. The petition proposed to amend the food
additive regulations in Sec. 178.3570 Lubricants with incidental food
contact (21 CFR 178.3570) to provide for the safe use of disodium
decanedioate as a corrosion/rust preventative for greases used as
lubricants with incidental food contact.
FDA has evaluated the data in the petition and other relevant
material. The agency concludes that the proposed use of the additive is
safe, that the additive will have the intended technical effect, and
that the regulations in Sec. 178.3570 should be amended as set forth
below.
In accordance with Sec. 171.1(h) (21 CFR 171.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition are available for inspection at the
Center for Food Safety and Applied Nutrition by appointment with the
information contact person listed above. As provided in 21 CFR
171.1(h), the agency will delete from the documents any materials that
are not available for public disclosure before making the documents
available for inspection.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
Any person who will be adversely affected by this regulation may at
any time on or before February 23, 1996, file with the Dockets
Management Branch (address above) written objections thereto. Each
objection shall be separately numbered, and each numbered objection
shall specify with particularity the provisions of the regulation to
which objection is made and the grounds for the objection. Each
numbered objection on which a hearing is requested shall specifically
so state. Failure to request a hearing for any particular objection
shall constitute a waiver of the right to a hearing on that objection.
Each numbered objection for which a hearing is requested shall include
a detailed description and analysis of the specific factual information
intended to be presented in support of the objection in the event that
a hearing is held. Failure to include such a description and analysis
for any particular objection shall constitute a waiver of the right to
a hearing on the objection. Three copies of all documents shall be
submitted and shall be identified with the docket number found in
brackets in the heading of this document. Any objection received in
response to the regulation may be seen in the Dockets Management Branch
between 9 a.m. and 4 p.m., Monday through Friday.
List of Subjects in 21 CFR Part 178
Food additives, Food packaging.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Director, Center for Food Safety and Applied
Nutrition, 21 CFR part 178 is amended as follows:
PART 178--INDIRECT FOOD ADDITIVES: ADJUVANTS, PRODUCTION AIDS, AND
SANITIZERS
1. The authority citation for 21 CFR part 178 continues to read as
follows:
Authority: Secs. 201, 402, 409, 721 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 321, 342, 348, 379e).
2. Section 178.3570 is amended in the table in paragraph (a)(3) by
revising the entry for ``Disodium decanedioate'' under the heading
``Limitations'' to read as follows:
Sec. 178.3570 Lubricants with incidental food contact.
* * * * *
(a) * * *
(3) * * *
------------------------------------------------------------------------
Substances Limitiations
------------------------------------------------------------------------
* * * *
* * *
Disodium decanedioate (CAS Reg. No. For use only:
17265-14-4).
1. As a corrosion inhibitor or
rust preventative in mineral
oil-bentonite lubricants at a
level not to exceed 2 percent
by weight of the grease.
2. As a corrosion inhibitor or
rust preventative only in
greases at a level not to
exceed 2 percent by weight of
the grease.
* * * *
* * *
------------------------------------------------------------------------
* * * * *
Dated: January 3, 1996.
Fred R. Shank,
Director, Center for Food Safety and Applied Nutrition.
[FR Doc. 96-942 Filed 1-23-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-941 New Animal Drugs for Use in Animal Feeds; Nicarbazin and Bacitracin Methylene Disalicylate
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1831-1832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-941]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 558
New Animal Drugs for Use in Animal Feeds; Nicarbazin and
Bacitracin Methylene Disalicylate
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations to reflect approval of an abbreviated new animal drug
application (ANADA) filed by Planalquimica Industrial Ltda. The ANADA
provides for use of nicarbazin and bacitracin methylene disalicylate in
Type C broiler feed for the prevention of certain forms of coccidiosis
and for
[[Page 1832]]
increased rate of weight gain and improved feed efficiency.
EFFECTIVE DATE: January 24, 1996.
FOR FURTHER INFORMATION CONTACT: Dianne T. McRae, Center for Veterinary
Medicine (HFV-102), Food and Drug Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301-594-1623.
SUPPLEMENTARY INFORMATION: Planalquimica Industrial Ltda., Rua das
Magnolias nr. 2405, Jardim das Bandeiras, CEP 13053-120, Campinas, Sao
Paulo, Brazil, has filed ANADA 200-164, which provides for the use of
single ingredient nicarbazin and bacitracin methylene disalicylate Type
A articles to make combination drug Type C broiler feed containing
113.5 grams per ton (g/t) nicarbazin with 30 g/t bacitracin methylene
disalicylate. The feed is used as an aid in preventing outbreaks of
cecal (Eimeria tenella) and intestinal (E. acervulina, E. maxima, E.
necatrix, and E. brunetti) coccidiosis and for increased rate of weight
gain and improved feed efficiency in broiler chickens.
The ANADA is approved as a generic copy of Merck Research
Laboratories' NADA 98-378, which was approved on March 15, 1995, and
announced in the Federal Register of June 5, 1995 (60 FR 29483). ANADA
200-164 is approved as of January 24, 1996, and the regulations are
amended in Sec. 558.366 (21 CFR 558.366) to reflect the approval. The
basis for approval is discussed in the freedom of information summary.
Additionally, Sec. 558.366(a) is revised to clarify that the listed
sponsors are only approved for those uses of the 25 percent nicarbazin
Type A medicated article in the table accompanied by their drug labeler
code in the ``Sponsor'' column. Consistent with this, the code for
Planalquimica is being added to the ``Sponsor'' column because it was
inadvertently omitted when the firm's approval for use of nicarbazin
alone in chicken feed was announced in the Federal Register of June 28,
1995 (60 FR 33342).
In accordance with the freedom of information provisions of part 20
(21 CFR part 20) and Sec. 514.11(e)(2)(ii) (21 CFR 514.11(e)(2)(ii)), a
summary of safety and effectiveness data and information submitted to
support approval of this application may be seen in the Dockets
Management Branch (HFA-305), Food and Drug Administration, rm. 1-23,
12420 Parklawn Dr., Rockville, MD 20857, between 9 a.m. and 4 p.m.,
Monday through Friday.
ANADA 200-164 provides for use of nicarbazin and bacitracin
methylene disalicylate Type A medicated articles to make Type C
medicated feeds. Nicarbazin is a Category II drug which, as provided in
21 CFR 558.4, requires an approved Form FDA 1900 for making Type C
medicated feeds. Therefore, use of nicarbazin Type A medicated articles
in making Type C medicated feeds as in this ANADA requires an approved
Form FDA 1900.
The agency has determined under 21 CFR 25.24(d)(1)(ii) that this
action is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
List of Subjects in 21 CFR Part 558
-Animal drugs, Animal feeds.
-Therefore, under the Federal Food, Drug, and Cosmetic Act and
under authority delegated to the Commissioner of Food and Drugs and
redelegated to the Center for Veterinary Medicine, 21 CFR part 558 is
amended as follows:
PART 558--NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS
-1. The authority citation for 21 CFR part 558 continues to read as
follows:
-Authority: Secs. 512, 701 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360b, 371).
-2. Section 558.366 is amended by revising paragraph (a), and in
the table in paragraph (c) under the ``Sponsor'' column in the entry
for ``113.5 (0.0125 pct)'' by numerically adding ``060728'', and in the
same column in the item ``Bacitracin methylene disalicylate 30'' by
numerically adding ``060728'' to read as follows:
Sec. 558.366 Nicarbazin.
(a) Type A medicated articles: 25 percent to 000006, 000986, and
060728 in Sec. 510.600(c) of this chapter for use as indicated in the
table in paragraph (c) of this section.
* * * * *
Dated: December 28, 1995.
Stephen F. Sundlof,
Director, Center for Veterinary Medicine.
[FR Doc. 96-941 Filed 1-23-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-922 Definitions of Special Use Airspace
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 2080-2081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-922]
[[Page 2079]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 1
Definitions of Special Use Airspace; Final Rule
Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 /
Rules and Regulations
[[Page 2080]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 1
[Docket No. 25767; Amdt. 1-42]
RIN 2120-AF92
Definitions of Special Use Airspace
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Federal Aviation Regulations by adding
the definitions of the various forms of special use airspace. Several
categories of special use airspace currently are defined other than in
the Regulations. This rule is needed to consolidate and define those
categories in a single part, including the definitions of warning area
and non-regulatory warning area found in Special Federal Aviation
Regulation (SFAR) No. 53.
EFFECTIVE DATE: January 15, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Joseph C. White, Air Traffic Rules Branch, ATP-230, Federal
Aviation Administration, 800 Independence Avenue SW., Washington, DC
20591; telephone (202) 267-8783.
SUPPLEMENTARY INFORMATION:
Background
The FAA has determined that for purposes of clarification and
conformity, it would be appropriate to include in part 1, Definitions
and Abbreviations, the definitions of all categories of special use
airspace. Special use airspace is defined in 14 CFR Section 73.3(a) as
airspace of defined dimensions wherein activities must be confined
because of their nature, or wherein limitations are imposed upon
aircraft operations that are not a part of those activities, or both.
With the exception of ``warning area,'' the definitions are the same
definitions provided for these categories of airspace in the
Aeronautical Information Manual and in FAA Order 7400.2, Procedures for
Handling Airspace Matters. The codification of these currently accepted
definitions into part 1 does not in any way affect the provisions that
apply to these areas that are contained in parts 73 and 91. Nor does
the inclusion of the definitions in part 1 impose any new operating
restrictions.
In addition, this rule redefines the term ``warning area,'' by
consolidating the definitions of ``warning area'' and ``non-regulatory
warning area'' found in SFAR 53 and codifies that term in part 1.
Warning areas are defined in SFAR 53 as airspace of defined dimensions,
extending from 3 to 12 nautical miles from the coast of this United
States, which contain activity that may be hazardous to
nonparticipating aircraft. The purpose of such warning areas is to warn
nonparticipating pilots of the potential danger. This rule consolidates
this definition with the definition of non-regulatory warning area
found in SFAR 53. A non-regulatory warning area is an airspace of
defined dimensions designated over international waters that contains
activity which may be hazardous to nonparticipating aircraft. The FAA
believes that combining the definition of a warning area with the
definition of a non-regulatory warning area into a single definition is
appropriate since the procedures that apply to these two areas are the
same.
Presidential Proclamation No. 5928, issued on December 27, 1988,
extended the sovereignty of the United States, for international
purposes, over the territorial seas from 3 to 12 nautical miles from
the coast of the United States (including its territories). Prior to
Presidential Proclamation No. 5928, warning areas were only designated
in international waters. SFAR 53, promulgated in response to
Proclamation No. 5928, designated warning areas in domestic airspace.
This rule defines a warning area as an area of airspace of defined
dimension, extending from 3 nautical miles outward from the coast of
the United States, that contains activity which may be hazardous to
nonparticipating aircraft.
This rule will not alter any of the existing warning areas. The FAA
does not envision any future additional warning areas or enlargement of
the existing warning areas in domestic airspace. If new airspace areas
are needed in domestic airspace, the FAA will work with the proponent
to establish the appropriate domestic special use airspace, i.e.
military operations area (MOA), Restricted area, or Prohibited area.
I find that good cause exists, pursuant to 5 U.S.C. 553(d), for
making this amendment effective in less than 30 days to avoid confusion
on the part of pilots operating in these types of airspace.
Discussion of Comments
Two comments were received from the Air Line Pilots Association
(ALPA) and the Air Traffic Control Association, Inc. (ATCA). ALPA and
ATCA support the proposed amendment to part 1 as provided in the notice
of proposed rulemaking (60 FR 58494, Nov. 27, 1995).
The Rule
This amendment to 14 CFR part 1, Definitions and Abbreviations, to
include the definitions of all types of special use airspace. Except
for ``warning areas,'' the definitions are the same definitions of the
categories of special use airspace found in the Aeronautical
Information Manual and FAA Order 7400.2, Procedures for Handling
Airspace Matters and are familiar to and accepted by the flying
community. The inclusion of these definitions in part 1 does not affect
any provision currently contained in parts 73 and 91. Further, the
inclusion of these definitions does not add any requirement or
operating restriction to these categories of special use airspace. This
rule also codifies the definition of warning area. As noted above, the
definition of warning area will consolidate the definitions in SFAR 53
into a single definition of a warning area that applies to domestic
airspace located from 3 to 12 nautical miles from the U.S. coast, as
well as international airspace beyond the 12 nautical mile boundary
from the coast.
International Civil Aviation Organization and Joint Aviation
Regulations
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation organization Standards and Recommended
Practices (SARP) to the maximum extent practicable.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-
5111), there are no requirements for information collection associated
with this regulation.
Regulatory Evaluation
This rule does not alter the provision of air traffic control (ATC)
services, nor does it have an impact on ATC system users. This
regulation merely adds a section of currently accepted definitions in
14 CFR part 1 without making any substantive revision to parts 73 and
91. Accordingly, because the costs of the rule are minimal or non-
existent, a formal regulatory evaluation has not been prepared.
Regulatory Flexibility Act Determination
The Regulatory Flexibility Act of 1980 (RFA) ensures that
government regulations do not needlessly and
[[Page 2081]]
disproportionately burden small businesses. The RFA requires the FAA to
review each rule that may have a significant economic impact on a
substantial number of small entities.
The regulation will not alter the provision of air traffic control
(ATC) services, nor will it have an impact on ATC system users. Hence,
regulation will not impose a significant cost on a substantial number
of small entities.
Federalism Implications
The rule will 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 rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
International Trade Impact Assessment
This rule will not constitute a barrier to international trade,
including the export of U.S. goods and services to foreign countries
and the import of foreign goods and services to the United States. This
regulation will not impose costs on either U.S. or foreign operators.
Therefore, a competitive trade disadvantage will not be incurred by
either U.S. operators abroad or foreign operators in the United States.
Conclusion
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Flexibility Determination and the
International Trade Impact Assessment, the FAA has determined that this
regulation is not a ``significant regulatory action'' under Executive
Order 12866. In addition, the FAA certifies that this regulation will
not have a significant economic impact, positive or negative, on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. This regulation is not considered
significant under DOT Order 2100.5, Policies and Procedures for
Simplification, Analysis, and Review of Regulations. A Regulatory
Flexibility Determination and International Impact Assessment are set
out above. Because the economic impact of this rule is minimal or non-
existent, no formal regulatory evaluation has been prepared.
List of Subjects in 14 CFR Part 1
Air transportation, Federal Aviation Administration.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 1 as follows:
PART 1--[AMENDED]
1. The authority citation for part 1 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
2. Section 1.1 is amended by revising the definitions of Prohibited
area and Restricted area and by adding the remaining definitions to
read as follows:
* * * * *
1.1 General definitions.
* * * * *
Alert Area. An alert area is established to inform pilots of a
specific area wherein a high volume of pilot training or an unusual
type of aeronautical activity is conducted.
* * * * *
Controlled Firing Area. A controlled firing area is established to
contain activities, which if not conducted in a controlled environment,
would be hazardous to nonparticipating aircraft.
* * * * *
Military operations area. A military operations area (MOA) is
airspace established outside Class A airspace to separate or segregate
certain nonhazardous military activities from IFR Traffic and to
identify for VFR traffic where theses activities are conducted.
* * * * *
Prohibited area. A prohibited area is airspace designated under
part 73 within which no person may operate an aircraft without the
permission of the using agency.
* * * * *
Restricted area. A restricted area is airspace designated under
Part 73 within which the flight of aircraft, while not wholly
prohibited, is subject to restriction.
* * * * *
Warning area. A warning area is airspace of defined dimensions,
extending from 3 nautical miles outward from the coast of the United
States, that contains activity that may be hazardous to
nonparticipating aircraft. The purpose of such warning areas is to warn
nonparticipating pilots of the potential danger. A warning area may be
located over domestic or international waters or both.
* * * * *
Issued in Washington, DC on January 18, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-922 Filed 1-19-96; 10:49 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-920 Approval and Promulgation of Air Quality Implementation Plans; Delaware Ozone Emission Inventory
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1838-1841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-920]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DE24-1-7156a; FRL-5401-2]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware Ozone Emission Inventory
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving revisions to the Delaware State
Implementation Plan (SIP) which pertains to the 1990 base year emission
inventory for the marginal, moderate, and severe ozone nonattainment
areas within the State. The ozone nonattainment areas consist of the
counties of Sussex (marginal), New Castle and Kent (both severe). The
SIP was submitted by the Delaware Department of Natural Resources and
Environmental Control (DNREC) for the purpose of attaining the national
ambient air quality standard (NAAQS) for ozone. This action is being
taken under section 110 of the Clean Air Act.
EFFECTIVE DATE: This action will become effective March 25, 1996,
unless notice is received on or before February 23, 1996, that adverse
or critical comments will be submitted. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Comments may be mailed to Marcia L. Spink, Associate
Director, Air Programs, Mailcode 3AT00, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107. Copies of the documents relevant to this action are available
for public inspection during normal business hours at the Air,
Radiation, and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107;
the Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 401 M Street, SW, Washington, DC 20460; Delaware
Department of Natural Resources & Environmental Control, 89 Kings
Highway, P.O. Box 1401, Dover, Delaware 19903.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 597-3164, at EPA
Region III address.
SUPPLEMENTARY INFORMATION: The Delaware Department of Natural Resources
and Environmental Control (DNREC) submitted a revision to the Delaware
SIP on May 27, 1994. The SIP revision consists of 1990 base year
emission inventories for the ozone
[[Page 1839]]
nonattainment areas within the State. In accordance with the
requirements of 40 CFR 51.102, a public hearing concerning this SIP
revision was held on May 3, 1994 in Dover, Delaware. No comments were
received during the public hearing.
I. Background
Under the Clean Air Act (CAA), states have the responsibility to
inventory emissions contributing to NAAQS nonattainment, to track these
emissions over time, and to ensure that control strategies are being
implemented that reduce emissions and move areas towards attainment.
The CAA requires ozone nonattainment areas designated as marginal,
moderate, serious, severe, and extreme to submit a plan within two
years of 1990 that contains a comprehensive, current, and accurate
emission inventory. The 1990 base year emissions inventory is the
primary inventory from which the periodic inventory, the Reasonable
Further Progress (RFP) projection inventory, and the modeling inventory
are derived. Further information on these inventories and their purpose
can be found in the ``Emission Inventory Requirements for Ozone State
Implementation Plans'', U.S. Environmental Protection Agency, Office of
Air Quality Planning and Standards, Research Triangle Park, North
Carolina, March 1991. The base year inventory may also serve as part of
statewide inventories for purposes of regional modeling in transport
areas. The base year inventory plays an important role in modeling
demonstrations for areas classified as moderate and above outside
transport regions.
The air quality planning requirements for marginal to extreme ozone
nonattainment areas are set out in section 182(a)-(e) of Title I of the
CAA. EPA has issued a General Preamble describing EPA's preliminary
views on how EPA intends to review SIP revisions submitted under Title
I of the CAA, including requirements for the preparation of the 1990
base year inventory [see 57 FR 13502; April 16, 1992 and 57 FR 18070;
April 28, 1992]. Because EPA is describing its interpretations here
only in broad terms, the reader should refer to the General Preamble
for a more detailed discussion of the interpretations of Title I
advanced in today's action and the supporting rationale. In today's
rulemaking on the Delaware ozone base year emissions inventory, EPA is
applying its interpretations taking into consideration the specific
factual issues presented.
Those States containing ozone nonattainment areas classified as
marginal to extreme are required under section 182(a)(1) of the CAA to
submit a final, comprehensive, accurate, and current inventory of
actual ozone season weekday emissions from all sources by November 15,
1992. This inventory is for calendar year 1990 and is denoted as the
base year inventory. It includes both anthropogenic and biogenic
sources of volatile organic compound (VOC), nitrogen oxides (NOX),
and carbon monoxide (CO). The inventory is to address actual VOC,
NOX, and CO emissions for the area during peak ozone season, which
is generally comprised of the summer months. All stationary point and
area sources, as well as highway mobile sources within the
nonattainment area, are to be included in the compilation. Available
guidance for preparing emission inventories is provided in the General
Preamble (57 FR 13498, April 16, 1992).
Emission inventories are first reviewed under the completeness
criteria established under section 110(k)(1) of the CAA (56 FR 42216,
August 26, 1991). According to section 110(k)(1)(C) if a submittal does
not meet the completeness criteria, ``the state shall be treated as not
having made the submission''. Under sections 179(a)(1) and 110(c)(1), a
finding by EPA that a submittal is incomplete is one of the actions
that initiates the sanctions and Federal Implementation Plan (FIP)
processes (see David Mobley memorandum, November 12, 1992).
Criteria for Approval
There are general and specific components of an acceptable emission
inventory. In general, the state must meet the minimum requirements for
reporting each source category. Specifically, the source requirements
are detailed below.
The Level I and II review process is used to determine that all
components of the base year inventory are present. The review also
evaluates the level of supporting documentation provided by the state,
assesses whether the emissions were developed according to current EPA
guidance, and evaluates the quality of the data.
The Level III review process is outlined below and consists of 10
points that the inventory must include. For a base year emission
inventory to be acceptable it must pass all of the following acceptance
criteria:
1. An approved Inventory Preparation Plan (IPP) was provided and
the QA program contained in the IPP was performed and its
implementation documented.
2. Adequate documentation was provided that enabled the reviewer to
determine the emission estimation procedures and the data sources used
to develop the inventory.
3. The point source inventory must be complete.
4. Point source emissions must have been prepared or calculated
according to the current EPA guidance.
5. The area source inventory must be complete.
6. The area source emissions must have been prepared or calculated
according to the current EPA guidance.
7. Biogenic emissions must have been prepared according to current
EPA guidance or another approved technique.
8. The method (e.g., HPMS or a network transportation planning
model) used to develop VMT estimates must follow EPA guidance, which is
detailed in the document, ``Procedures for Emission Inventory
Preparation, Volume IV: Mobile Sources'', U.S. Environmental Protection
Agency, Office of Mobile Sources and Office of Air Quality Planning and
Standards, Ann Arbor, Michigan, and Research Triangle Park, North
Carolina, December 1992. The VMT development methods were adequately
described and documented in the inventory report.
9. The MOBILE model (or EMFAC model for California only) was
correctly used to produce emission factors for each of the vehicle
classes.
10. Non-road mobile emissions were prepared according to current
EPA guidance for all of the source categories.
The base year emission inventory is approvable if it passes Levels
I, II, and III of the review process. Detailed Levels I and II review
procedures can be found in the following document: ``Quality Review
Guidelines for 1990 Base Year Emission Inventories,'' U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards, Research Triangle Park, NC, July 27, 1992. Level III review
procedures are specified in a memorandum from David Mobley and G.T.
Helms to the Regions ``1990 O3/CO SIP Emission Inventory Level III
Acceptance Criteria,'' October 7, 1992 and revised in a memorandum from
John Seitz to the Regional Air Directors dated June 24, 1993.
II. Description of State Submittal
A. Procedural Background
The CAA requires states to observe certain procedural requirements
in developing emission inventory submissions to EPA. Section 110(a)(2)
of the CAA provides that each emission inventory submitted by a state
must be adopted after reasonable notice and
[[Page 1840]]
public hearing. A public hearing concerning this SIP revision was held
on May 3, 1994 in Dover, Delaware. No comments were received during the
public hearing.
Delaware submitted revisions to the SIP on May 27, 1994. The
inventories were signed by the Governor's designee on the same date of
the submittal.
The SIP revisions were reviewed by EPA to determine completeness
shortly after its submittal, in accordance with the completeness
criteria set out at 40 CFR part 51, appendix V (1991), as amended by 57
FR 42216 (August 26, 1991). The Delaware submittals were found to be
complete and a letter dated June 14, 1994 was forwarded to the
Governor's designee indicating the completeness of the submittal and
the next steps to be taken in the review process.
B. Components of the Emission Inventories
Based on EPA's level III review findings, Delaware has satisfied
all of EPA's requirements for purposes providing a comprehensive,
accurate, and current inventory of actual emissions in the ozone
nonattainment areas. A summary of EPA's level III findings is given
below.
Delaware submitted draft IPPs to EPA for review. EPA approved the
IPP and QA plan for Delaware in June 12, 1992.
1. The IPP and QA program have been approved and implemented.
2. The documentation was adequate for all emission types
(stationary point, area, non-road mobile, on-road mobile and biogenic
sources) for the reviewer to determine the estimation procedures and
data sources used to develop the inventory.
3. The point source inventory was found to be complete.
4. The point source emissions were estimated according to EPA
guidance.
5. The area source inventory was found to be complete.
6. The area source emissions were estimated according to EPA
guidance.
7. The biogenic source emissions were estimated using PC-BEIS in
accordance with EPA guidance.
8. The method used to develop VMT estimates was adequately
described and documented.
9. The mobile model was used correctly.
10. The non-road mobile emission estimates were correctly prepared
in accordance with EPA guidance.
Thus, Delaware submittal meets the essential reporting and
documentation requirements for acceptable emission inventories.
C. Inventory Completeness Issues
Delaware has a SIP that will ensure that the requirements of
section 182(a)(1) for emission inventory measures are adequately met.
To comply with the emission inventory requirements, the state submitted
complete inventories containing point, area, biogenic, on-road, and
non-road mobile source data, and accompanying documentation. Emissions
from these groupings of sources are presented in the tables below.
----------------------------------------------------------------------------------------------------------------
Point On-Road Non-Road
NAA Area source source mobile mobile Biogenic Total
emissions emissions emissions emissions emissions
----------------------------------------------------------------------------------------------------------------
New Castle County Ozone Season Emissions in Tons Per Day
----------------------------------------------------------------------------------------------------------------
VOC............................... 34.75 27.08 35.28 16.67 17.51 131.30
NOX............................... 5.40 85.77 27.06 18.78 N/A 137.00
CO................................ 21.91 40.72 245.40 104.24 N/A 412.27
----------------------------------------------------------------------------------------------------------------
Kent County Ozone Season Emissions in Tons Per Day
----------------------------------------------------------------------------------------------------------------
VOC............................... 12.96 3.24 13.07 3.50 32.46 65.23
NOX............................... 1.20 6.13 10.62 7.89 N/A 25.84
CO................................ 8.47 0.51 100.51 20.25 N/A 129.73
----------------------------------------------------------------------------------------------------------------
Sussex County Ozone Season Emissions in Tons Per Day
----------------------------------------------------------------------------------------------------------------
VOC............................... 17.31 6.28 20.71 3.34 45.99 93.62
NOX............................... 1.78 54.24 16.66 7.01 N/A 79.68
CO................................ 8.25 1.68 154.39 21.86 N/A 186.18
----------------------------------------------------------------------------------------------------------------
EPA has determined that the submittals made by Delaware satisfies
the relevant requirements of the CAA. EPA's detailed review of the
emission inventories are contained in Technical Support Documents which
are available, upon request, from the EPA Regional Office listed in the
ADDRESSES section of this rule.
EPA is approving the SIP revisions without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will become
effective March 25, 1996 unless, by February 23, 1996, adverse or
critical comments are received.
If EPA receives such comments, EPA will publish a document in the
Federal Register withdrawing this rule before the effective date. All
public comments received will then be addressed in a subsequent final
rule based on the proposed rule. EPA will not institute a second
comment period on this action. Any parties interested in commenting on
this action should do so at this time. If no such comments are
received, the public is advised that this action will be effective on
March 25, 1996.
III. Final Action
EPA is approving revisions to the Delaware SIP to include 1990 base
year emission inventories for the ozone nonattainment areas within the
state. The inventories consist of point, area, non-road mobile,
biogenics and on-road mobile source emissions for VOC, NOX and CO.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision of any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
[[Page 1841]]
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements but simply approve requirements that
the state is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, the Administrator
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the CAAA, preparation of a flexibility analysis
would constitute Federal inquiry into the economic reasonableness of
state action. The CAA forbids EPA to base its actions concerning SIP's
on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66
(1976); 42 U.S.C. 7410(a)(2).
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 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, of $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 requirements. 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 approval action proposed/promulgated
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either state, local, or tribal governments
in the aggregate, or to the private sector. This Federal action
approves pre-existing requirements under state or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to state, local, or tribal governments, or to the private sector,
result from this action.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office Management and Budget (OMB) has exempted
this regulatory action from E.O. 12866 review.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 25, 1996. Filing a petition for
reconsideration by the Administrator of this rule does not affect the
finality of this rule for the purposes of judicial review nor does it
extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action, regarding Delaware emission inventories, may not be
challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon Monoxide,
Hydrocarbons, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Dated: November 27, 1995.
Stanley Laskowski,
Acting Regional Administrator, Region III.
Part 52, Chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart I--Delaware
2. Section 52.423 is added to read as follows:
Sec. 52.423 1990 Base Year Emission Inventory.
EPA approves as a revision to the Delaware State Implementation
Plan the 1990 base year emission inventories for the Delaware ozone
nonattainment areas submitted by the Secretary of the Department of
Natural Resources and Environmental Control on May 27, 1994. This
submittal consists of the 1990 base year point, area, non-road mobile,
biogenic and on-road mobile source emission inventories in area for the
following pollutants: volatile organic compounds (VOC), carbon monoxide
(CO), and oxides of nitrogen (NOX).
[FR Doc. 96-920 Filed 1-23-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-911 Health Care Programs: Fraud and Abuse; Revisions to the PRO Sanctions Process
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1841-1842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-911]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Inspector General
42 CFR Part 1004
RIN 0991-AA73
Health Care Programs: Fraud and Abuse; Revisions to the PRO
Sanctions Process
AGENCY: Office of Inspector General (OIG), HHS.
ACTION: Correction to final regulations.
-----------------------------------------------------------------------
SUMMARY: This document corrects a technical error that appeared in 42
CFR part 1004 of the final rule published in the Federal Register on
December 12, 1995 (60 FR 63634). The final rule was designed to revise
and update the procedures governing the imposition and adjudication of
program sanctions predicated on recommendations of State Utilization
and Quality Control Peer Review Organizations. Specifically, this
correction notice sets forth the corrected text for section 1004.110(f)
which contained a typographical error in subparagraph (2).
EFFECTIVE DATE: January 24, 1996.
FOR FURTHER INFORMATION CONTACT: Joel J. Schaer, (202) 619-0089.
SUPPLEMENTARY INFORMATION: In the OIG final regulations published in
the Federal Register on December 12, 1995, revising 42 CFR part 1004, a
technical error was inadvertently made on page 63644, column one, in
setting forth the text in section 1004.110, Notice of sanction. As
corrected, section 1004.110(f) should read as follows:
Sec. 1004.110 Notice of sanction.
* * * * *
(f) If an exclusion sanction is effectuated because a decision was
not made within 120 days after receipt of the PRO recommendation,
notification is as follows--
(1) As soon as possible after the 120th day, the OIG will issue a
notice to the practitioner or other person, in compliance with the
requirements of paragraph (c) of this section, affirming the PRO
recommendation based on the OIG's review of the case, and that the
exclusion is effective 20 days from the date of the notice; and
(2) Notice of sanction is also provided as specified in paragraph
(e) of this section.
[[Page 1842]]
Dated: January 17, 1996.
Joel Jay Schaer,
Regulations Officer.
[FR Doc. 96-911 Filed 1-23-96; 8:45 am]
BILLING CODE 4150-04-P
Complete official Federal Register PDF
FR Doc. 96-900 Organization and Functions
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1827-1829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-900]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 /
Rules and Regulations
[[Page 1827]]
DEPARTMENT OF AGRICULTURE
Economic Research Service
7 CFR Part 3700
Organization and Functions
AGENCY: Economic Research Service, USDA.
ACTION: Final rule.
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SUMMARY: This document amends regulations of the Economic Research
Service (ERS) regarding agency organization and functions of major
oeprational units. This amendment is necessary to reflect changes in
the organization of ERS due to an internal reorganization.
EFFECTIVE DATE: January 24, 1996.
FOR FURTHER INFORMATION CONTACT:
John Dunmore, Acting Administrator, ERS, U.S. Department of
Agriculture, Room 1226, 1301 New York Avenue, NW., Washington, DC
20005-4788, (202) 219-0300.
SUPPLEMENTARY INFORMATION: The Freedom of Information Act, 5 U.S.C.
552(a)(1), requires Federal agencies to publish in the Federal Register
descriptions of its central and field organizations. ERS is the agency
within the U.S. Department of Agriculture primarily responsible for
providing economic and other social science information and analysis on
agriculture, food, natural resources, and rural America. This amendment
to 7 CFR part 3700 is necessary to reflect changes in the organization
of ERS due to an internal reorganization. This rule relates to internal
agency management. Therefore, pursuant to 5 U.S.C. 533, notice of
proposed rulemaking and opportunity for comment are not required, and
this rule may be made effective less than 30 days after publication in
the Federal Register. Further, since this rule relates to internal
agency management, it is exempt from the provisions of Executive Orders
12778 and 12866. Also, this rule will not cause a significant economic
impact or other substantial effect on small entities. Therefore, the
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
do not apply.
The following actions were taken: Section 3700.1 amended to revise
the general description; Sec. 3700.2 amended to revise the
organizational structure; Sec. 3700.3 amended to revise the functions;
and Sec. 3700.4 amended to update the authority to act for the
administrator.
This rule supersedes the notice published on August 25, 1988, 53 FR
32369.
List of Subjects in 7 CFR Part 3700
Organization and functions.
Accordingly, 7 CFR part 3700 is revised to read as follows:
PART 3700--ORGANIZATION AND FUNCTIONS
Sec.
3700.1 General.
3700.2 Organization.
3700.3 Functions.
3700.4 Authority to act for the Administrator.
Authority: 5 U.S.C. 301 and 552, and 7 CFR 2.67.
Sec. 3700.1 General.
The Economic Research Service (ERS), originally established in 1961
under the authority of the Agricultural Marketing Act of 1946 (7 U.S.C.
1621-1627), was reestablished as an agency of the U.S. Department of
Agriculture of September 30, 1981 (46 FR 47747), in response to
Secretary's Memorandum 1000-1 of June 17, 1981, entitled
``Reorganization of Department.'' The mission of ERS is to provide
economic and other social science information and analysis for pubic
and private decisions on agriculture, food, natural resources, and
rural America. Its primary customers are USDA policy officials and
program administrators, the Office of the While House, Congress, and
environmental, consumer, and rural public interest groups, including
farm groups and industry.
Sec. 3700.2 Organization.
ERS maintains its offices at 1301 New York Avenue, NW., Washington,
DC 20005-4788. The organization consists of:
(a) The Administrator;
(b) Associate Administrator;
(c) Five Divisions; Commercial Agriculture Division, Food and
Consumer Economics Division, Information Services Division, Natural
Resources and Environment Division, and Rural Economy Division; and
(d) Office of Energy and New Uses.
Sec. 3700.3 Functions.
(a) Administrator and Associate Administrator. The Administrator
and Associate Administrator are responsible for developing and
implementing policies and plans in support of a program of economic and
social science research, analysis, and data dissemination. General
functions are: Conducting research and staff analysis, and developing
short to long-term outlook analysis and economic indicators.
(b) Director, Commercial Agriculture Division. The Director,
Commercial Agriculture Division, is responsible for conducting a
program of economic research; economic intelligence gathering,
analysis, and reporting; and data development and dissemination on
economic conditions, U.S. and foreign policies, and agriculture
production, trade, and marketing. General functions are:
(1) Developing and monitoring current intelligence and indicators
on domestic and international agricultural markets and related farm and
trade developments and short to long-term forecasts of domestic and
world agricultural markets.
(2) Assessing the technological, economic, and institutional forces
influencing U.S. and world agricultural markets.
(3) Conducting special analyses of U.S. and world agricultural
markets for policy officials to assist in policy development and the
operation of USDA programs.
(4) Collecting necessary information and performing international,
national, and regional macroeconomics analysis to estimate the effects
of macro economic trends and events in the global economy on the
American farm sector.
(c) Director, Food and Consumer Economic Division. The Director,
Food and Consumer Economic Division, is responsible for providing
economic
[[Page 1828]]
research, monitoring and statistical indicators, and staff and the
policy analysis of consumer and food marketing issues, including:
Consumption determinants and trends; consumer demand for food quality,
safety, and nutrition; food security; market competition; vertical
coordination; nutrition education and food assistance programs; and
food safety regulation. General functions are:
(1) Analyzing consumer behavior and food choices, including
research regarding the socio-demographic and economic determinants of
food and nutrient consumption; consumer valuation of quality, safety,
and nutrition characteristics; and the role of information in
determining food choices.
(2) Examining food assistance and nutrition programs, nutritional
adequacy of diets, and food security, including costs and benefits of
food assistance and nutrition programs, program and policy
alternatives, the extent and social cost of good insecurity, and the
role of food assistance in meeting larger goals of welfare programs.
(3) Analyzing the food processing and distribution sector,
including the ability of the sector to meet changing consumer demand;
the effect of government market interventions to facilitate that
response; and the effect of government interventions and rapid changes
in the sector on consumer and producer welfare.
(4) Analyzing food safety issues, including consumer benefits from
risk reduction, production tradeoffs in reducing hazards, impact of
proposed regulations and international harmonization, and policy
alternatives.
(5) Developing and monitoring indicators of individual, household,
and market level food consumption, expenditures, and nutrients; food
marketing costs, marketing margins, and farm-retail price spreads; and
food safety hazards, their effects, and mitigation.
(d) Director, Information Services Division. The Director,
Information Services Division, is responsible for managing and
directing agencywide information technology, communications, and
administrative activities in support of the economic research and
analysis mission of ERS. General functions are:
(1) Developing and managing information technology infrastructure
and training.
(2) Developing and managing communications, publication, and
dissemination programs, policies, and procedures.
(3) Providing operations and management services, including liaison
with the ARS's Administrative and Financial Management unit.
(e) Director, Natural Resources and Environment Division. The
Director, Natural Resources and Environment Division, is responsible
for providing economic research, monitoring and statistical indicators,
and staff and policy analysis of agricultural resource and environment
issues including the relationship between agriculture--its practices,
technologies, policies, and resource use--and the environment,
including effects on the sustainability of the natural resource base,
preservation of species and genetic diversity, and environmental
quality. General functions are:
(1) Developing and disseminating data for assessing the use of
agricultural resources and technologies by agricultural producers.
These data include use and ownership of land, use of agricultural
chemicals and equipment, and water use.
(2) Evaluating the implications of alternative agricultural and
resource conservation policies and programs on commodity prices,
consumer welfare, competitiveness, and long-range maintenance of
agricultural land and water resources.
(3) Analyzing the costs, benefits, and distributional impacts of
alternative policies to reduce environmental and health risk
externalities associated with agriculture.
(4) Monitoring and analyzing the uses and conditions of the
nation's water resources and the economic consequences of agricultural
and environmental policies affecting water supply, use, and quality.
(5) Analyzing the impacts of national and global developments and
domestic and international policies on the use and value of land,
water, capital assets, and other agricultural production decisions.
(6) Assessing the possible impacts of proposed or anticipated
domestic policy and program changes on agricultural production
decisions.
(7) Assessing the effects of technology on input use and markets
and evaluating the factors affecting input productivity and technology
adoption.
(8) Analyzing the implications of global environmental change and
sustainable development for U.S. agriculture.
(f) Director, Rural Economy Division. The Director, Rural Economy
Division, is responsible for conducting a program of economic and
social science research and analysis on national rural and agricultural
conditions and trends, and identifying and assessing the potential
impact of public and private sector actions and policies that affect
rural areas and the agricultural sector. General functions are:
(1) Analyzing and reporting on current economic and demographic
issues facing rural areas and agricultural, especially how changes in
the national and global economies affect rural areas and the
agriculture sector.
(2) Determining the effects of economic, social, and governmental
events and actions on the demand for and supply of rural local
government services, the quality of such services, and the
relationships between local services and the viability of rural
communities.
(3) Developing and disseminating information on current trends in
the non-metropolitan and farm populations, the number, location and
characteristics of such people, and the factors associated with these
trends.
(4) Developing estimates and analyzing labor force trends in rural
labor markets, including analyses of unemployment and employment by
industry and occupational groups, including farm labor.
(5) Developing data on the income situation of rural people and
evaluating the effectiveness of alternative public policies and
programs in improving incomes of rural people, especially people in
disadvantaged groups.
(6) Monitoring information on and analyzing the development of
rural portions of geographic regions of the United States, including
changes in industry mix, impacts of energy costs, credit availability,
and other economic activities.
(7) Analyzing and reporting on developments in rural and
agricultural financial markets and in Federal tax laws, and their
consequences for agriculture and rural economies.
(8) Collecting and disseminating financial information on farms and
farm enterprises, and developing techniques necessary to measure and
describe the financial condition of the agriculture sector and its
components.
(g) Director, Office of Energy and New Uses. The Director, Office
of Energy and New Uses, is responsible for assisting the Secretary in
developing Departmental energy policy and coordinating Departmental
energy programs and strategies. General functions are:
(1) Providing Department leadership in:
(i) Analyzing and evaluating existing and proposed energy policies
and strategies, including those regarding the allocation of scarce
resources;
[[Page 1829]]
(ii) Developing energy policies and strategies, including those
regarding the allocation of scarce resources;
(iii) Reviewing and evaluating Departmental energy and energy-
related programs and program progress;
(iv) Developing agricultural and rural components of national
energy policy plans;
(v) Preparing reports on energy and energy-related policies and
programs required under Act of Congress and Executive Orders, including
those involving testimony and reports on legislative proposals.
(2) Providing Departmental oversight and coordination with respect
to resources available for energy and energy-related activities,
including funds transferred to USDA from departments and agencies of
the Federal Government pursuant to interagency agreements.
(3) Representing the Under Secretary for Research, Education, and
Economics at conferences, meetings, and other contacts where energy
matters are discussed, including liaison with the Department of Energy,
the Environmental Protection Agency, and other governmental departments
and agencies.
(4) Providing the Under Secretary for Research, Education, and
Economics with such assistance as requested to perform the duties
delegated to him concerning energy and new uses.
(5) Working with the Office of Congressional Relations to maintain
Congressional and public contacts in energy matters, including
development of legislative proposals, preparation of reports on
legislation pending in Congress, appearances before Congressional
committees, and related activities.
(6) These delegations exclude the energy management actions related
to the internal operations of the Department as delegated to the
Assistant Secretary for Administration.
(7) Conduct a program of research on the economic feasibility of
new uses of agricultural products. Assist agricultural researchers by
evaluating the economic and market potential of new agricultural
products and techniques in the initial phase of development and
contributing to prioritization of the Departmental research agenda.
Sec. 3700.4 Authority to act for the Administrator.
In the absence of the Administrator, the following officials are
designated to serve as Acting Administrator in the order indicated:
Associate Administrator
Director, Commercial Agriculture Division
Director, Food and Consumer Economics Division
Director, Natural Resources and Environment Division
Director, Rural Economy Division
Director, Information Services Division
Director, Office of Energy and New Uses
Done at Washington, DC, this 16th day of January 1996.
John Dunmore,
Acting Administrator, Economic Research Service.
[FR Doc. 96-900 Filed 1-23-96; 8:45 am]
BILLING CODE 3410-18-M
Complete official Federal Register PDF
FR Doc. 96-861 Federal Motor Carrier Safety Regulations; Technical Amendments
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1842-1843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-861]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 382, 385, 391, 393, and 397
RIN 2125-AD71
Federal Motor Carrier Safety Regulations; Technical Amendments
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule; technical amendments.
-----------------------------------------------------------------------
SUMMARY: This document makes technical amendments to various sections
of the Federal Motor Carrier Safety Regulations to correct erroneous
cross-references and to amend references in which the regulations
referenced have been redesignated or removed. In addition, a cautionary
note is added to appendix B of 49 CFR chapter III, subchapter B, to
alert users of the CFR, that this appendix relates solely to Federal
authority, has no application to a State's authority to enforce adopted
regulations, and is not to be included in its present form in any
general adoption of the regulations by the States.
EFFECTIVE DATE: January 24, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Neill Thomas, (202) 366-4009,
Office of Motor Carrier Research and Standards, or Paul L. Brennan,
Office of Chief Counsel, (202) 366-0834. Office hours are from 7:45
a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Rulemaking Analyses and Notices
Because this final rule simply amends various sections of the
Federal Motor Carrier Safety Regulations to correct erroneous cross-
references and to insert a missing subpart heading, the FHWA believes
that prior notice and opportunity for comment are
[[Page 1843]]
unnecessary under 5 U.S.C. 553(b)(3)(B). Similarly, due to the
editorial nature of this final rule, the FHWA has determined that prior
notice and opportunity for comment are not required under the
Department of Transportation's regulatory policies and procedures. It
is not anticipated that provision of a comment period would result in
the receipt of useful information. In this final rule, the FHWA is not
exercising discretion in a way that could be meaningfully affected by
public comment.
In addition, the FHWA finds that good cause exists to dispense with
the 30-day delay in the effective date required by 5 U.S.C. 553(d) due
to the minor and technical nature of these amendments. Thus, the FHWA
is proceeding directly with a final rule which will be effective on its
date of publication.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is neither a significant
regulatory action under Executive Order 12866 nor a significant
rulemaking under the Department of Transportation's regulatory policies
and procedures. It is anticipated that the economic impact of this
action will not be substantial because this rule simply makes minor,
technical corrections to the Federal Motor Carrier Safety Regulations.
Therefore, a full regulatory evaluation is not warranted.
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. Based upon this evaluation, the FHWA certifies that this
final rule will not have a significant economic impact on a substantial
number of small entities.
Executive Order 12612 (Federalism Assessment)
The FHWA has reviewed this action to ensure its compliance with the
principles and criteria contained in Executive Order 12612, and it has
been determined that this rulemaking does not raise sufficient
federalism issues to warrant the preparation of a separate Federalism
Assessment. This final rule will not preempt any State law or State
regulation, and no additional costs or burdens will be imposed on the
States. In addition, this rule will have no effect on the States'
ability to discharge traditional State governmental functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Number 20.205, Highway
Planning and Construction. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities 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 reviewed this action to ensure compliance with the
National Environmental Policy Act of 1960 (42 U.S.C. 4321-4347) and has
determined that this action will not have any effect on the quality of
the environment. Thus, an environmental impact statement is not
required.
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 Parts 382, 385, 391, 393, and 397
Highway safety, Highways and roads, Motor carriers, Motor vehicle
safety.
Issued on: January 5, 1996.
Rodney E. Slater,
Federal Highway Administrator.
The FHWA hereby amends 49 CFR chapter III as set forth below.
PART 382--[AMENDED]
1. The authority citation for part 382 continues to read as
follows:
Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; 49 CFR
1.48.
2. In Sec. 382.107, in the introductory text, the words ``or
Sec. 40.73'' are removed.
PART 385--[AMENDED]
3. 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,
31502; and 49 CFR 1.48.
Sec. 385.17 [Amended]
4. In Sec. 385.17, paragraph (a) is amended by removing the
reference ``Sec. 390.40'' and adding in lieu thereof the reference
``Sec. 390.27''.
PART 391--[AMENDED]
5. The authority citation for part 391 continues to read as
follows:
Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR
1.48.
Sec. 391.49 [Amended]
6. In Sec. 391.49, paragraph (b) is amended by removing the two
references to ``Sec. 390.40'' and adding the reference ``Sec. 390.27''
in their stead.
PART 393--[AMENDED]
7. The authority citation for part 393 continues to read as
follows:
Authority: Section 1041(b) of Pub. L. 102-240, 105 Stat. 1914,
1993 (1991); 49 U.S.C. 31136 and 31502; 49 CFR 1.48.
Sec. 393.25 [Amended]
8. In Sec. 393.25, paragraph (b) is amended by removing the
reference ``Sec. 393.18'' and adding in lieu thereof the reference
``Sec. 393.11''.
Sec. 393.42 [Amended]
9. In Sec. 393.42, paragraph (b)(2) is amended by removing the
reference ``Sec. 393.7(a)(3)'' and adding in lieu thereof the reference
``Sec. 393.71(a)(3)''.
PART 397--[AMENDED]
10. The authority citation for part 397 continues to read as
follows:
Authority: 49 U.S.C. 5101 et seq.; and 49 CFR 1.48.
11. In part 397, subpart A is amended to add the heading:
Subpart A--General
Appendix B--[Amended]
12. In Appendix B to subchapter B of Chapter III, add after the
heading the following:
Appendix B to Subchapter B--Special Agents
Cautionary note: This appendix relates only to Federal authority
to enforce the regulations in this subchapter. In its present form,
it has no application for the States and is not to be included in
any adoption of these regulations by State authorities as a
condition of eligibility for grants under part 350 of this chapter.
* * * * *
[FR Doc. 96-861 Filed 1-23-96; 8:45 am]
BILLING CODE 4910-22-M
Complete official Federal Register PDF
FR Doc. 96-795 Importation of Exotic Wild Birds to the United States; Final Rule Implementing the Wild Bird Conservation Act of 1992
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 2084-2093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-795]
[[Page 2083]]
_______________________________________________________________________
Part V
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Part 15
Importation of Exotic Wild Birds to the United States; Final Rule
Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 /
Rules and Regulations
[[Page 2084]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 15
RIN 1018-AC15
Importation of Exotic Wild Birds to the United States; Final Rule
Implementing the Wild Bird Conservation Act of 1992
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On October 23, 1992, the Wild Bird Conservation Act of 1992
(WBCA) was signed into law, the purposes of which include promoting the
conservation of exotic birds by: ensuring that all imports into the
United States of species of exotic birds are biologically sustainable
and not detrimental to the species; ensuring that imported birds are
not subject to inhumane treatment during capture and transport; and
assisting wild bird conservation and management programs in countries
of origin. This final rule would implement procedures for establishment
of an approved list of non-captive-bred (wild-caught) species listed in
the Appendices to the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES, or the Convention) that can be
imported.
DATES: This rule is effective February 23, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. Susan S. Lieberman, U.S. Fish and
Wildlife Service, Office of Management Authority, 4401 N. Fairfax
Drive, room 420C, Arlington VA 22203, telephone (703) 358-2093.
SUPPLEMENTARY INFORMATION: This final rule implements aspects of the
WBCA, which was signed into law on October 23, 1992. This is the fourth
of five rulemakings under the WBCA; the first final rulemaking under
the WBCA was published in the Federal Register on November 16, 1993 (58
FR 60524). The second and third final rulemakings under the WBCA were
published in the Federal Register on December 2, 1994 (59 FR 62255).
The WBCA limits or prohibits imports of exotic bird species to ensure
that their wild populations are not harmed by trade. It also encourages
wild bird conservation programs in countries of origin by both ensuring
that all imports of such species into the United States are
biologically sustainable and not detrimental to the species, and by
creating an Exotic Bird Conservation Fund to provide conservation
assistance in countries of origin. The final rule of November 16, 1993,
implemented the prohibitions stipulated in the WBCA and provided permit
requirements and procedures for some allowed exemptions.
During the one-year period immediately following enactment of the
WBCA, from October 23, 1992, to October 22, 1993, import quotas were
established for CITES-listed bird species. Those quotas were announced
in the Federal Register on December 4, 1992 (57 FR 57510). A notice
published on March 30, 1993 (58 FR 16644), solicited public comments
and announced a public meeting, held April 15-16, 1993, to receive
input from the public for the development of regulations to implement
some of the provisions of the WBCA. Useful input was received from a
broad cross-section of interested members of the public who
participated in the meeting and submitted comments in writing; that
input has been used to develop this final rule. A notice published on
April 16, 1993 (58 FR 19840), announced species for which the quotas
had been met and no further individual birds could be imported.
Since the publication of the final rule of November 16, 1993,
imports of all CITES-listed birds (as defined in the final rule) are
prohibited, except for (a) species included in an approved list; (b)
specimens for which an import permit has been issued; (c) species from
countries that have approved management plans for those species; or (d)
specimens from approved foreign captive-breeding facilities. The U.S.
Fish and Wildlife Service (Service) published a proposed rule in the
Federal Register on March 17, 1994 (59 FR 12784), that would implement
procedures for approval of foreign captive-breeding facilities,
establishment of an approved list of captive-bred species listed in the
CITES Appendices that can be imported without a WBCA permit and
establishment of criteria for including non-captive-bred (wild-caught)
species in the approved list.
As a result of a lawsuit filed on February 15, 1994, by the Humane
Society of the United States and Defenders of Wildlife, and a resultant
District Court Order that found a portion of the regulation in the
November 16, 1993, Federal Register invalid, the Service, consistent
with that Court Order, announced in the Federal Register on May 24,
1994 (59 FR 26810), that all exotic birds listed in Appendix III of
CITES are covered by the automatic import moratorium of the WBCA,
regardless of their country of origin. A proposed rule was published on
June 3, 1994 (59 FR 28826), to promulgate that regulatory change and
the final rule was published on Dec. 2, 1994 (59 FR 62254).
On Dec. 2, 1994 (59 FR 62255), a final rule was published which
implemented procedures for the establishment of an approved list of
captive-bred species listed in the CITES Appendices that may be
imported without a WBCA permit; those approved captive-bred species
were those for which it has been determined that trade involves only
captive-bred specimens.
This rule addresses the proposals made in the Federal Register of
March 17, 1994, for the criteria for including species in the approved
list of non-captive-bred species, with some modifications based on
comments received and further analysis by the Service. This final rule
establishes regulations called for in the WBCA that will accomplish the
following: (1) For wild-caught CITES-listed birds to be on an approved
list, the Service must determine that: CITES is being effectively
implemented for the species for each country of origin from which
imports will be allowed; CITES-recommended measures are implemented;
there is a scientifically based management plan for the species that
provides for the conservation of the species and its habitat, includes
incentives for conservation, ensures that the use of the species is
biologically sustainable and maintained throughout its range at a level
consistent with its role in its ecosystem, and addresses factors that
include illegal trade, domestic trade, subsistence use, disease, and
habitat loss; and that the methods of capture, transport, and
maintenance of the species minimize the risk of injury or damage to
health.
Comments and Information Received
The Service received roughly 1500 comments from the public,
including over 1409 form letters from private aviculturists (bird
breeders) and comments from 12 conservation and/or animal welfare
organizations, 1 zoological organization, 4 scientific organizations, 1
representative of the pet industry, 2 private companies, 5 avicultural
organizations, and 1 falconry/raptor breeder organization; the
remaining comments were from other private individuals.
Comments of a General Nature
The Service proposed to consider only sustainable use management
plans for Appendix II and III species since trade for primarily
commercial purposes is not permitted under the Convention for Appendix
I species. If specimens of
[[Page 2085]]
an Appendix I species are required for zoological, scientific, or
breeding purposes, individuals or institutions desiring such import may
apply for a permit under Subpart C of this Part 15.
Few comments were received opposing such a consideration for
sustainable use. A few aviculturists objected because they consider
Appendix I species to be the species most in need of conservation
attention, and believe that the Service should allow for imports of
Appendix I species under this provision of the WBCA. The Service
recognizes the need to conserve these threatened and endangered
species, and agrees that they are of the highest conservation priority.
The Service notes however that approval to import wild-caught birds
under a sustainable use management plan will allow commercial trade,
and as such is inconsistent with both the intent and the requirements
of CITES Appendix I. The Service disagrees that scientifically-based
management plans can be submitted for commercial exports of Appendix I
listed species. If individuals or organizations wish to import wild-
caught specimens of an Appendix I species for zoological, scientific,
or cooperative breeding programs, they already may apply for a permit
for such an import under Subpart C of this Part 15.
Comments Pertaining to Section 15.30: Definitions
The Service has modified the definition of trend and the new
language reflects the need to evaluate past experience as well as
future projections in deterimining trend.
The Service notes that in the development of its definition of
`sustainable use' it drew upon IUCN draft guidelines for `An Initial
Procedure for Assessing the Sustainability of Uses of Wild Species'.
These draft guidelines recommend that assessing the impacts of use
should cover three factors: (1) Demographic sustainability or the
impact of the use on the population being used (the use must be at a
rate that is within the population's capacity for renewal); (2)
ecological sustainability or the compatibility of a use with the
quality and native diversity of the ecosystem; and (3) impacts of other
factors (human activities and/or natural events) on the ecosystem. The
Service has incorporated these concepts into a working definition of
sustainable use.
Several commenters supported the definition of sustainable use
while numerous commenters, including the pet industry, avicultural,
animal welfare, and conservation organizations disagreed with the
Service's proposed definition--``the use of a species in a manner and
at a level such that populations of the species are maintained at
optimal levels for the long term and involves a determination of the
productive capacity of the species and its ecosystem, in order to
ensure that utilization does not exceed those capacities or the ability
of the population to reproduce and maintain itself''. They objected
that the Service's use of ``optimal'' was vague and left the definition
open-ended and subject to interpretation by the reader. The Service
recognizes the extreme importance of the term ``sustainable use'' since
the WBCA requires that the import of wild-caught birds must be
biologically sustainable. The Service has modified its definition to
remove any ambiguity, by replacing the term ``optimal levels'' with the
term ``biologically viable levels''.
One conservation organization objected to the phrase ``long term''
in the sustainable use definition, arguing that interpretation of the
phrase is open to debate as to the exact length of time meant in the
definition. They would prefer a modifier ``biased toward the indefinite
maintenance of viability, such as in perpetuity'' be added to the
definition. The Service disagrees, in that such a modifier would be
unnecessarily confusing. The phrase ``long term'' is sufficiently
clear, as it refers to many generations and indeed many, many years.
The Service considers it too extreme to require exporting countries to
implement management plans that are designed to maintain a species at
biologically viable levels in perpetuity.
Comments Pertaining to Section 15.32: Criteria for Including Non-
Captive-bred Species in the Approved List
This section establishes the criteria for the inclusion of non-
captive-bred (wild-caught) bird species in the approved list, thereby
allowing their importation into the U.S. under the WBCA without needing
WBCA import permits under Subpart C of this Part 15. Pursuant to
Section 106 of the WBCA, the Secretary is required to publish a list of
species of exotic birds that are listed in an Appendix to CITES and
that are not subject to a prohibition or suspension of importation
otherwise applicable under the WBCA. For non-captive-bred birds to be
imported from other countries and therefore, for such birds to be
listed in an approved list, the Service is required by the WBCA to
``use the best scientific information available, and to consider the
adequacy of regulatory and enforcement mechanisms in all countries of
origin for the species, including such mechanisms for control of
illegal trade.''
The WBCA requires the Service to make the finding that CITES is
being effectively implemented, by making each of the following findings
specified in Section 106, paragraph (c) of the WBCA:
(1) That the country of origin has established a Scientific
Authority or other equivalent authority;
(2) That the requirements of Article IV of the Convention are
implemented with respect to that species;
(3) That remedial measures recommended by the Parties to the
Convention with respect to that species are implemented;
(4) That a scientifically-based management plan has been developed
for the species which provides for the conservation of the species and
its habitat and includes incentives for conservation (section 106,
paragraph (c)(2)(A) of the WBCA);
(5) That a scientifically-based management plan has been developed
for the species which ensures that the use of the species is
biologically sustainable and maintained throughout the range of the
species in the country to which the plan applies at a level that is
consistent with the role of the species in the ecosystem and is well
above the level at which the species might become threatened with
extinction (Section 106, paragraph (c)(2)(B) of the WBCA);
(6) That a scientifically-based management plan has been developed
for the species which addresses factors relevant to the conservation of
the species, including illegal trade, domestic trade, subsistence use,
disease, and habitat loss (section 106, paragraph (c)(2)(C) of the
WBCA);
(7) That the management plan is implemented and enforced (Section
106, paragraph (c)(3) of the WBCA); and
(8) That the methods of capture, transport, and maintenance of the
species minimize the risk of injury or damage to health, including
inhumane treatment (Section 106, paragraph (c)(4) of the WBCA).
The Service notes that Congress in the WBCA used the terminology
``scientifically-based management plan'' and it has retained this
phrase in this final rule. However, the Service recognizes that
preferable phrasing is ``science-based'' or ``scientifically-sound''
management plan and notes that this is the objective of a sustainable
use management plan under the WBCA. Some animal welfare and
conservation organizations recommended that the Service insert the word
``scientific'' throughout the criteria, such as ``scientific study'' or
scientific
[[Page 2086]]
methodology. The Service is making no changes based on these comments,
since this wording is redundant and already incorporated in the phrase
``scientifically-based''.
Numerous comments were received on the criteria which the Service
proposed for making the above findings and these comments are addressed
in the following sections.
General Comments on the Criteria
The pet industry representative and several avicultural
organizations and aviculturists objected to the amount of scientific
information required under the proposed regulations because they
believe such information is impossible to obtain in developing
countries because of scientific, logistical and financial constraints.
They oppose the adoption of the proposed criteria because they consider
them to be too complex and unattainable for the underdeveloped
countries of the world. The Service strongly disagrees. In particular,
the Service disagrees that range states that may be interested in
exporting wild-caught birds are incapable of developing management
plans based on scientific information.
The WBCA requires that the management plans be ``scientifically-
based'' and that the imports of wild-caught birds be biologically
sustainable and non-detrimental to the survival of the species in the
wild. Therefore, the Service is required to receive and review
scientific data that will ensure such findings can be made. The Service
notes that such scientific studies are currently being undertaken in
several developing countries by nationals from these countries. Some
examples include the Blue-fronted Amazon (Amazona aestiva) sustainable
use project in Argentina; the study of three Amazon parrot species in
Mexico; the study of the Yellow-crowned Amazon (Amazona ochrocephala)
and its potential sustainable use in Guatemala; the study of parrot
populations in Venezuela; the study of Atlantic coastal forest Amazon
parrots in Brazil; the study of macaws and other parrot species in Manu
National Park, Peru; the study of psittacine populations in Cuba; and
the study of cockatoo species in Indonesia. These studies are not just
brief censuses, but often multi-year studies addressing a spectrum of
biological questions integral to the development of comprehensive
management plans. In addition to the scientific data collected during
these projects, these research projects serve an invaluable function in
training ecologists and conservation biologists in these countries. The
WBCA encourages such studies and the Service is willing to offer
technical expertise to those countries requesting assistance. The
Service hopes that development agencies, consumers (industry and
avicultural groups) and the conservation communities will join efforts
with the Service to provide support and expertise to sustainable use
projects that address the use of exotic birds.
One animal welfare organization opposed the use of the phrase
``sustainable use'' throughout Section 15.32 and commented that the
term ``sustainable use has become a buzzword, conjuring up images of
carefully planned and strictly controlled use of wildlife that will not
harm wild populations or their ecosystems''. They requested that the
term ``scientifically-based'' management plan be substituted for
sustainable use management plan. The Service disagrees and will retain
the use of this terminology. However, the Service believes that any
valid sustainable use management plan must be scientifically-based. The
WBCA requires that imports of wild-caught birds be ``biologically
sustainable'' and therefore, the management plans submitted must
provide information that addresses such use and must be scientifically-
based. A management plan based only on commercial interests or market
demand would be considered inadequate.
Comments on Specific Requirements for Scientifically-Based Sustainable
Use Management Plans
Section 15.32(a)(1) Background Information
One avicultural organization opposed the requirement to provide ``a
summary of the country's export legislation related to this species,
implementing the Convention, and where appropriate, a summary of
implementing regulations; and a summary of the country's enforcement
and monitoring mechanisms to ensure compliance with the management
plan''. The Service disagrees. Such information is required under the
WBCA to evaluate the implementation of CITES in the exporting country
and to make the required non-detriment finding that the import of wild-
caught birds will not affect the survival of the species throughout its
range. The Service requires such information to ensure that wild-caught
birds from neighboring range countries are not being laundered through
an exporting country's sustainable use management plan. A copy of a
country's export legislation would be extremely useful in assisting
importing countries as it would help the Service in smuggling
interdiction efforts and identification of fraudulent documents.
Some animal welfare organizations requested that a scientific study
within the previous three years be required for information on a
species' distribution and status. The Service disagrees and does not
believe the WBCA mandates such a requirement. The Service recognizes
that such information needs to be current and factual, but will allow
the exporting country to chose a time frame for the information
submitted. The Service is requesting that information on distribution
be ``recent''.
One animal welfare organization suggested also requiring the
following background information: Summaries, prepared by the Management
Authority of each country of origin of the species, addressing the
legislation related to this species, implementation and enforcement of
CITES. The Service disagrees. Should the Service require such
information to evaluate the management plan for a species with a multi-
country distribution, the Service can obtain such information directly
from the CITES Management Authority for these countries or the CITES
Secretariat. It would be an unfair administrative burden for an
exporting country to have to submit such summaries.
Section 15.32(a)(2) Habitat Information
The pet industry representative and several avicultural
organizations and individuals opposed the requirement for the
submission of habitat information, which they consider to be irrelevant
and unavailable. The Service strongly disagrees. The WBCA requires
``that a scientifically-based management plan has been developed for
the species which provides for the conservation of the species and its
habitat and includes incentives for conservation'' (Section 106,
paragraph (c)(2)(A) of the WBCA). In order to make this finding, the
Service needs information on a species' ecological requirements and
habitats. The Service also believes that the exporting country needs
this information in order to develop a scientifically-based sustainable
use management plans. The approval criteria incorporate this
consideration in a number of ways, including requiring: (a) Information
on species conservation status and distribution; and (b) habitat
conservation information, including habitat requirements, habitat
distribution and protection status, and habitat status and trends.
Scientific organizations and one zoo representative supported these
requirements for habitat information.
[[Page 2087]]
Some animal welfare organizations requested that such information be
provided from the results of a scientific study conducted within the
previous three years prior to the submission of a sustainable use
management plan. The Service disagrees, recognizing that such
information needs to be current and factual; the Service will allow the
exporting country to choose a time frame for the information submitted,
as long as it reflects the current situation.
Some animal welfare organizations recommended an additional
requirement that would request habitat information on reserves which
provide protection for a species and management/enforcement information
on those reserves. The Service recognizes the usefulness of this
information in evaluating sustainable use plans, but does not believe
that this calls for establishing a separate requirement. Rather, such
information can be provided under Sec. 15.32(a)(2)(ii), and the Service
recommends its submission when available. The Service notes as well
that in any application, any such additional information that
demonstrates the scientific basis of a sustainable use management plan
should be submitted in order to facilitate decision-making.
Section 15.32(a)(3) Information on the Role of a Species in its
Ecosystem
Conservation, scientific, and animal welfare organizations
commented that it is not possible for a country of export to ensure
that a species is being used in a sustainable manner when that species
does not breed in the country of export. Since the breeding cycle is
one of the most crucial stages in an organism's annual cycle and the
one that provides data to assess reproductive output and population
dynamics, it would not be possible to assess the affect of take on the
population and evaluate the sustainable use of such a population
according to these commenters. They argue that a scientifically-based
management plan must address these concerns to be valid. The Service
strongly agrees and has modified its criteria accordingly. Unless an
exporting country can demonstrate that a management plan is
scientifically valid and the export of a non-breeding species from the
country is biologically sustainable and not detrimental to the species'
survival in its breeding range, the Service will consider only
management plans for species which breed in the exporting country. The
Service does not believe that a species that breeds elsewhere than the
exporting country can be managed sustainably in the absence of
reproductive data unless such management is a cooperative submission by
both countries. The Service strongly encourages bilateral or
multilateral cooperation in the case of such migratory species.
Section 15.32(a)(4) Population Dynamics of the Species
In order to determine that any utilization proposed in the
management plan is sustainable, the Service proposed to require
evidence of how levels of sustainable use were determined, including
either (1) adequate long-term population trends and take levels, or (2)
population estimates, reproductive success, and estimation of the
number exported from the country during the past 2 years, and
estimation of the number of birds removed directly from the wild for
export, domestic trade, illegal trade, subsistence use, and other
purposes. The information should include the estimated number of birds
to be removed from the wild from each area or region of take each year
for all purposes, including age-class information for species, and a
description of future plans to monitor the species in each area of take
and to determine whether the number of birds taken has been
sustainable. Throughout this rule, area or region of take refers to the
area or region within the country of export where birds will be removed
from the wild; the degree of specificity used will depend on the
particular situation in the country of export. If the species is
abundant throughout its range, the region of take could be the entire
country; a species that is locally abundant but rare elsewhere might
have a more restricted area of take.
This section generated extensive comments; the criteria listed in
this section are essential to evaluate whether the proposed
scientifically-based management plan is biologically sustainable. The
proposed rule (59 FR 12784, March 17, 1994) required recent population
data for the population of the species in the country of export, as
well as population data from the population being harvested, derived
from indices of relative abundance (such as catch per unit effort or
call count surveys) or population estimates (if available), along with
documentation for each estimate. These population data or estimates
should be based on studies conducted for at least three separate years,
or data for one year can be provided, with a description of survey
plans for future years. Population assessments should have been
conducted during the same season (breeding or non-breeding) of each
year for which documentation is submitted.
For long-lived, more ``K-selected'' species of birds (as listed in
the proposed rule in Sec. 15.32) the Service proposed requiring that
the management plan (for species that breed in the country of export)
include information on nesting ecology, and reproductive rates or
mortality rates. Those ``K-selected'' species were defined as those not
in one of 19 specified families of birds. The Service proposed more
rigorous standards for the sustainable utilization of ``K-selected''
species, based on an awareness that their sustainable utilization is
very difficult, and that they are extremely sensitive to population
depletion.
For species included in one of the 19 families of birds specified
in the proposed rule in Sec. 15.32 (more ``r-selected'' species), the
Service proposed that, instead of detailed demographic information, the
management plan (for species that breed in the country of export) need
include: An estimation (with documentation) of recent reproductive
success; estimation of annual mortality or loss; or documentation of
long-term population and offtake trends based on indices of relative
abundance and measures of offtake and description of any long-term
changes in other mortality factors. Reproductive success may be
estimated using pre-breeding and post-breeding counts, wherever that is
appropriate. For all birds, when the species occurs in the country of
export only during the non-breeding season, the Service proposed to
require documentation or a letter from the CITES Scientific Authority
that the species does not breed there.
Two biologists supported the proposed regulations. Two scientific
organizations who represent the ornithological community, and the
animal welfare and conservation organizations opposed aspects of the
proposed regulations regarding population dynamics. They considered the
proposed regulations to be scientifically flawed. Representatives of
the scientific community argued that ``the amount of information needed
to prove sustainable use should be sufficient to demonstrate
convincingly that the level of extraction is in proportion to the
annual growth of the population.'' To determine if levels of use are
sustainable, they recommend a minimum of four kinds of biological
information: (1) Population size and trends; (2) annual reproductive
success (number of young produced) per female by age groups; (3) annual
rate of survival of males and females by age groups; (4) the number of
birds harvested. They recommend that population trends and
[[Page 2088]]
levels of harvest should be measured and reported for each year of
harvest. Reproductive and survival rates should be measured for 3 to 5
years, and periodically thereafter. They strongly disagree with the
proposed regulations which require information on reproductive rates or
survivorship rates. They recommend that both be measured for the
scientific determination of quotas for sustainable use, and that this
should be required for all species in trade, not only for K-selected
species.
The scientific community, the zoo representative, and animal
welfare and conservation organizations opposed the use of different
requirements for ``r- and K-''selected species. They argued that while
it is generally true that K-selected species are more sensitive to
overharvesting than r-selected species, ``the population dynamics of
long-lived, K-selected birds are usually most affected by (or sensitive
to) changes in adult mortality rates. In contrast, r-selected species
have shorter life spans and require frequent, successful reproduction
for populations to be sustained. In other words, population dynamics of
r-selected species are often equally influenced by changes in
reproductive success and adult mortality. The proposed regulations do
not delineate what age classes should be harvested for trade.'' Given
that both adults and nestlings are likely to be traded, and the general
lack of biological information that exists on species in international
trade, the commenters argued that it is essential to require similar
information for all species of birds. Lastly, they argued that the r-K
dichotomy is of little use when comparing families of birds because
within families, there is great variation in life history traits. They
support the adoption of one set of standards for all birds, and that
such standards should be strict and require information on all the
population parameters discussed above as necessary to determine
biologically sustainable use.
The pet industry and avicultural organizations opposed the
requirements for ``r- and K-''selected species. They argued that the
reproductive information called for may not be necessarily relevant to
the determination of sustainable use. They support the adoption of one
set of standards for all birds, and that such standards be based on
indices of relative abundance, and measures of offtake. A general one-
time population study for certain species should be acceptable. The
Service strongly disagrees and supports the use of population
estimates, reproductive rates, survivorship rates, and mortality rates
in determining if a sustainable use management plan is biologically
valid and non-detrimental to the species' survival. For many long-lived
species, indices of abundance provide insufficient information to
assess a population's status and determine measures of offtake. For
many Amazon, cockatoo and macaw species, population numbers may be
stable but without reproductive or mortality information, it is
impossible to determine if the population is stable, declining or
increasing over a limited time period. In the early 1950's the Puerto
Rican Parrot population numbered around 200 birds in the wild but by
1968, it had crashed to less than 50 individuals. Population nesting
success was so low that the recruitment rate for the population was
zero.
The Service strongly believes that it is critical to require
information on population dynamics which would allow the Service to be
able to evaluate sustainable use management plans in a rigorous
scientific manner. The Service has modified the final rule to require
the minimum four types of biological information that the scientific
ornithological community has suggested. However, should an exporting
country be able to demonstrate that its management plan is
scientifically valid without the submission of all the documentation
required in Sec. 15.32, the Service would consider such a plan. For
example, a scientifically-based management plan for estrildid finches
could be considered without documentation on annual reproductive
success (number of young produced per female by age groups). The
Service also recognizes that the theory of the biologically sustainable
use of species is continually evolving and methodologies to measure
population dynamics will change and become increasingly refined as
theory is put into practice. Therefore, the Service wishes to allow
some flexibility in evaluating a scientifically-based management plan.
The Service has reviewed the scientific information available on
sustainable use and the biological underpinnings of such theory. The
Service notes that the most successful projects currently in place for
sustainable use involving international trade in CITES-listed species
involve reptiles, particularly some lizards and crocodilians, and as
such caution should be utilized in translating such projects to birds,
particularly long-lived species such as psittacines. In developing the
proposed criteria on which to base approval of sustainable use
management plans, the Service drew upon the model for sustainable use
of parrot species by Beissinger and Bucher (1992) [Bioscience vol. 42,
March 1992: Can parrots be conserved through sustainable harvesting?].
The scientific, animal welfare and conservation communities supported
this model in their comments and urged the Service to adopt it. The
Service has added an additional criterion to Sec. 15.32(a)(4) to
reflect sustainable use management options contained in this model
where management operations are used to boost productivity and harvest
levels of young are commensurate with such enhancement. In such a case,
it is unnecessary to measure adult survival rates, provided there is
baseline data upon which to compare population growth rates pre/post
enhancement and to determine quotas for the harvesting of young birds.
Section 15.32(a)(5) Determination of Biologically Sustainable Use
The pet industry representative and an avicultural organization
argued that the Service failed to ``recognize the ability of countries
to provide for alternative managed and sustainable use of pest
species''. They argue that the criteria for the determination of
biologically sustainable use are excessive and unnecessary for pest
species. ``Pest species'' are often subject to management control
programs in exporting countries and exports of pest species are often
used as a measure to reduce the population levels of these pest
species.
Although Congress did not exempt pest species from the Wild Bird
Conservation Act, the Service recognizes that some bird species in
their country of origin may be pests and could be exceedingly abundant
which allows for their sustainable use in high quantities. However, the
mere designation of a species as a pest is insufficient to determine if
exports are non-detrimental to the species. The Service notes that
Congress, in the Committee Report on the WBCA, said that ``the bill
does not authorize the Secretary to include a species on the approved
list by virtue of the fact that it is designated as a pest in the
country of origin. Rather the Committee expects the Secretary to
evaluate the management program based on the best scientific
information available, and determine whether it effectively provides
for the conservation of birds''. These regulations accordingly reflect
Congress' intent.
Several animal welfare organizations opposed the estimation of the
number exported from a country of origin during the past 2 years.
Animal welfare
[[Page 2089]]
organizations argued that such information should be provided for 3
years. The Service is making no change based on these comments. The
Service believes that 2 years of data are adequate. Of course, more
than 2 years of data are welcome. Furthermore, prior to approval, any
proposed management plan will be the subject of a notice published in
the Federal Register for public comment, at which time any interested
organizations or members of the public may comment on the adequacy of
data provided.
Some animal welfare organizations requested that the phrase ``under
the management plan'' be inserted into Sec. 15.32(a)(5)(ii) for the
number of birds removed from the wild. The Service is making no change
based on these comments. This phrase would not add anything, and might
be confusing. Data on the numbers removed from the wild are necessary
whether part of the management plan or due to other causes.
Some animal welfare organizations requested that
Sec. 15.32(a)(5)(iii) be modified to include a description of pre-
export holding. The Service agrees and has modified this requirement.
Animal welfare, scientific and conservation organizations supported
Sec. 15.32(a)(5)(iv).
Several avicultural organizations and individuals opposed
Sec. 15.32(a)(5)(v), claiming that it was too broadly written and
requires more information than is necessary to determine if CITES is
being effectively implemented. The Service disagrees and is requiring
this information to evaluate the scientific management plan and make
the required non-detriment finding. Based on its experience in
enforcement, the Service is concerned about the laundering of wild-
caught birds taken from other areas being represented as birds coming
from the areas proposed in the sustainable use management plan. The
Service will work with exporting countries on means to prevent such
laundering.
Several biologists and conservation organizations supported this
requirement in its entirety while most animal welfare organizations and
several individuals wish to have it strengthened and text inserted
which ``ensures that the species is maintained throughout the range of
the species in the country to which the plan applies at a level that is
consistent with the role of the species in the ecosystem and is well
above the level at which the species might become threatened with
extinction''. The Service is making no changes based on these comments.
These elements are addressed adequately within the definition of
sustainable use.
Some animal welfare organizations requested that the wording in
Sec. 15.32 (a)(5)(vi) regarding monitoring plans be made clearer to the
reader. The Service agrees and has changed its wording.
Some animal welfare organizations and one conservation organization
recommended that two additional requirements be added to
Sec. 15.32(a)(5) as part of the determination of biologically
sustainable use. One requirement would be monitoring of the population
during use and how taking will be halted if it is determined that the
number of birds taken is not sustainable. The Service disagrees with
incorporating such a redundant requirement. Article IV paragraph 3 of
the CITES treaty requires the Scientific Authority of the exporting
country to monitor its exports, and limit exports when necessary to
maintain species throughout their range at a level consistent with
their role in their ecosystems and well above a level at which they
might become eligible for inclusion in Appendix I. The Service in
approving the sustainable use management plan will be evaluating the
implementation of CITES by the exporting country, including its
implementation of Article IV. The Service also notes that the Secretary
may be petitioned at any time under the WBCA to remove a species from
the approved list of non-captive bred species should information become
available that the number of birds taken is not sustainable.
The other requirement would be ``a description of how the country
of export has made Article IV determinations for each CITES listed
species it has exported in the past 3 years, including the bird species
that is the subject of the management plan under consideration''. While
it would be useful to understand the functioning of a country's
Scientific Authority, requiring submission of this information would be
excessive and burdensome. The Service has not incorporated this
recommended change.
Section 15.32(a)(6) Incentives for Conservation
Some animal welfare groups recommended that the wording of this
requirement be changed to ``a demonstration of how export of the bird
species to the United States will result in a verifiable improvement in
the status of the species or its habitat in the country''. The Service
is making no changes based on this comment. The Service recognizes that
such information could be used to meet the requirement of ``how the
sustainable use management plan promotes the value of the species and
its habitats''; however, this is not the only way to demonstrate a
conservation incentive.
The pet industry representative, an avicultural organization and
several aviculturists argued that ``pest species'' which are subject to
management control programs in exporting countries need not demonstrate
a conservation incentive for the species. For species where the
scientifically based management plan provides documentation that such
species is a pest in the country of origin, the Service has modified
the requirements for a conservation incentive to allow for the
consideration of pest species. However, the U.S. Department of
Agriculture (USDA) commented that ``APHIS and its customers are very
concerned about the careful importing of birds from other countries,
particularly those that are already known to cause threats in
agriculture, natural resources, facilities, or human health and safety
in their countries of origin''. They requested that the Service
consider these factors when approving species for importation. The
Service agrees that these should be critical factors to consider. The
Service is cognizant of the harm that non-indigenous species can do in
the United States. However, the Wild Bird Conservation Act does not
specifically restrict the import of pest bird species. Any applications
involving the importation of pest species or species that are claimed
to be pests in their country of origin will be forwarded to USDA for
their comments, which will be taken into consideration.
Section 15.32(a)(7) Additional Factors
One zoological organization, 1 scientific organization, and 12
conservation and animal welfare organizations supported the additional
requirements in this section. The pet industry representative and the
avicultural organizations opposed the factor which asked for a
description of the shipping methods and enclosures. The Service is
making no changes based on these comments. The Service is required
under Section 106(c) of the WBCA to determine that the methods of
capture, transport, and maintenance of the species proposed for export
in the sustainable use management plan minimize the risk of injury or
damage to health, including inhumane treatment. Therefore, the Service
is requiring such information, as it is necessary to evaluate the
transport and maintenance of the species. The Service believes that
exporting countries are capable of complying with U.S. and CITES humane
transport standard. The Service's
[[Page 2090]]
primary concern in this regard is the humane and healthful transport of
birds, in order to minimize or eliminate mortality and morbidity due to
preparation for shipment and transport.
An avicultural organization opposed the requirement for a
description of any captive-propagation program for the species carried
out in the country as not relevant to the sustainable use management
plan. The Service agrees that captive propagation has no bearing on
sustainable use and has deleted this factor from the final rule.
A scientific organization for ornithology, one conservation
organization and some animal welfare organizations requested that the
Service add a requirement which would address how the exporting country
will prevent the spread of disease from captured birds being held prior
to export to wild populations. While the Service is aware that the
birds taken for sustainable use may pose a disease risk to wild
populations in the country of import and encourages exporting countries
to minimize such risks, we are making no changes based on these
comments. The Service is unaware of any reliable, documented examples
of where captive-held birds have transmitted diseases to wild
populations in the exporting country.
Section 15.32(b) Approval Criteria
General Comments on the Approval Criteria
Some animal welfare and conservation organizations recommended that
the Service strengthen the wording of the approval criteria to require
the Director to ``determine whether or not an exotic bird species
should be listed as an approved species for importation from the
country of export, under Section 15.33. In making this determination,
the Director shall make a finding that all of the approval criteria
have been demonstrably satisfied''. The Service disagrees and is making
no changes. The Service notes that Congress, in the Committee Report on
the WBCA, said that ``the Committee expects the Secretary to evaluate
the management program based on the best scientific information
available, and determine whether it effectively provides for the
conservation of birds. It is the intent of the Committee that the
Secretary have wide discretion in reviewing management plans under this
section. Clearly management plans for birds that are becoming rare
should be much more stringent than those for birds that are very
abundant and are subject to population control programs''. For example,
a sustainable use management plan for the CITES Appendix II-listed
Blue-fronted Amazon (Amazona aestiva) which has declined in some parts
of its range would be evaluated more stringently than a sustainable use
management plan for the CITES Appendix III-listed red-billed waxbill
(Lonchura senegala) which is abundant and widespread in its range. The
approval criteria in Section 15.32(b) give the Director the flexibility
and discretion needed to evaluate sustainable use management plans as
Congress intended.
The pet industry representative, an avicultural organization and
several aviculturists expressed their support for the proposal by the
Service ``to give particularly positive consideration to situations
wherein very conservative capture and export quotas are implemented
prior to being able to obtain all of the biological information
necessary for a more large-scale management plan (in effect, a
preliminary approval)''. They recommended that such approval criteria
be built into the regulations themselves. Several animal welfare and
conservation organizations opposed such a ``preliminary approval''.
The Service notes that the criteria in Section 15.32 will be used
to evaluate the sustainable use management plans submitted by an
exporting country but that the Director has flexibility and discretion
in approving plans, as Congress intended. The Service is aware that the
criteria for approval of sustainable use plans may appear rigorous, and
although desirable and scientifically valid, they may be difficult for
some exporting countries. The Service will evaluate each sustainable
use plan and the information provided within on its own scientific and
conservation merit. The Service may give positive consideration to
plans wherein very conservative capture and export quotas are
implemented prior to being able to obtain all of the biological
information necessary for a more large-scale management plan, if the
country can demonstrate that such conservative capture and export
quotas are non-detrimental to the species survival in the wild. There
is precedent among CITES Parties to impose such conservative quotas
when some scientific data is available and a species' status is known
while the firmer scientific database is being developed. While some of
the biological information in the sustainable use management plan may
be lacking, the plan must address all the other approval criteria
requiring the effective implementation of CITES in the exporting
country. The Service notes that Congress, in the Committee Report on
the WBCA, said that ``the Committee expects the Secretary to consider
the extent to which a country's Scientific Authority is technically
capable of carrying out the duties described by CITES.'' It directs the
Secretary to review whether a country is effectively implementing
remedial measures recommended by the Parties to CITES.
One scientific organization commented that the Service should be
required to establish an ``advisory board of scientists chosen for
their competence in demography'' to review management plans and make
recommendations to the Service on the approval of such plans. The
Service strongly disagrees. The Service makes non-detriment findings
routinely and has the expertise and competency to evaluate sustainable
use management plans. The Service shall publish notice in the Federal
Register of sustainable use management plan applications. Interested
parties, including the scientific community, are invited to submit
comments regarding these plans.
A few animal welfare organizations and individuals commented in
opposition to the duration of approval of 3 years and requested that
the Service approve sustainable use programs for 1 year only. The
Service strongly disagrees and is making no changes. Given the amount
of data and information required by the Service to evaluate sustainable
use management plans, an approval for only 1 year would be excessive
and burdensome to an exporting country and would not allow an exporting
country to develop long-term sustainable use and conservation
management programs. The Service notes that the Secretary may be
petitioned at any time under the WBCA to remove a species from the
approved list of non-captive bred species should information become
available that the number of birds taken is not sustainable.
General Comments Pertaining to Section 15.33: Species Included in the
Approved List for Non-Captive-Bred Species
No comments were received on the proposed organization of this
subpart. This subpart is established in this rule; actual text will be
proposed as sustainable use management plans are received and approved.
Effects of the Rule
The Service has determined that this final rule is categorically
excluded under Departmental procedures in complying with the National
Environmental Policy Act (NEPA). See
[[Page 2091]]
516 DM [Departmental Manual] 2, Appendix 1 Paragraph 1.10. The
regulations are procedural in nature, and the environmental effects,
while crafted to carry out the benign purposes of the WBCA, are judged
to be minimal, speculative, and do not lend themselves to meaningful
analysis. Future regulations and permitting decisions implementing the
WBCA may be subject to NEPA documentation requirements, on a case-by-
case basis.
Executive Orders 12866, 12612, and 12630 and the Regulatory Flexibility
Act
This rule was not subject to Office of Management and Budget review
under Executive Order 12866. This action is not expected to have
significant taking implications for United States citizens, as per
Executive Order 12630. It has also been certified that these revisions
will not have a significant economic effect on a substantial number of
small entities as described by the Regulatory Flexibility Act. Since
the rule applies to importation of live wild birds into the United
States, it does not contain any Federalism impacts as described in
Executive Order 12612.
Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the U.S. Fish and Wildlife Service has received approval for
this collection of information, with approval number 1018-0084, with
the expiration date of August 31, 1996.
This collection of information will be achieved through the use of
USFWS Application Form 3-200, which will be modified pursuant to 50 CFR
13.12(b), to address the specific requirements of this final rule. This
collection information will establish whether or not the applicant can
include a given species of exotic bird in the approved list of non-
captive-bred species.
The likely respondents to this collection of information will be
foreign governments who wish to include a given species of exotic bird
in the approved list of non-captive-bred species. This information will
be needed by the USFWS to determine whether a given species of exotic
bird can be managed in a scientifically based sustainable manner, thus
warranting inclusion in the approved list of non-captive-bred species.
A species and country of export will be approved for three (3) years,
at which time renewal of approval will be considered by the USFWS. The
annual burden of reporting and record keeping should be between five
(5) and ten (10) hours per response. The estimated number of likely
respondents is less than ten (10), yielding a total annual reporting
and recordkeeping burden of one hundred (100) hours or less.
List of Subjects in 50 CFR Part 15
Imports, Reporting and recordkeeping requirements, Transportation,
and Wildlife.
Regulation Promulgation
Accordingly, 50 CFR part 15 is amended as follows:
PART 15--WILD BIRD CONSERVATION ACT
1. The authority citation for Part 15 continues to read as follows:
Authority: Pub. L. 102-440, 16 U.S.C. 4901-4916.
2. Amend Part 15, subpart A, section 15.3 by adding the following
definitions, in alphabetical order:
Sec. 15.3 Definitions.
* * * * *
Documentation means a description of how scientific information was
collected, including the methodologies used; names and institutions of
individuals conducting the work; dates and locations of any study; and
any published results or reports from the work.
* * * * *
Life cycle means the annual processes involved with breeding,
migration, and all other non-breeding activities.
* * * * *
Status means a qualitative measure of the vulnerability to
extinction or extirpation of a population at a given time (e.g.,
endangered, threatened, vulnerable, non-threatened, or insufficiently
known).
Sustainable use means the use of a species in a manner and at a
level such that populations of the species are maintained at
biologically viable levels for the long term and involves a
determination of the productive capacity of the species and its
ecosystem, in order to ensure that utilization does not exceed those
capacities or the ability of the population to reproduce, maintain
itself and perform its role or function in its ecosystem.
Trend means a long-term assessment of any change in the absolute or
relative size of a species' population or habitat over time (e.g.,
increasing, decreasing, at equilibrium, insufficiently known).
* * * * *
3. Section 15.32 is amended by adding text to read as follows:
Sec. 15.32 Criteria for including species in the approved list for
non-captive-bred species.
Upon receipt of a completed sustainable use management plan for a
country of export, the Director may approve a species listed in
Appendices II or III of the Convention for importation from that
country. Such approval shall be granted in accordance with the issuance
criteria of this section. All approved species and countries of export
will be listed in section 15.33.
(a) Requirements for scientifically-based sustainable use
management plans. Sustainable use management plans developed by the
country of export should be submitted for species which breed in the
country of export. If the species does not breed in the country of
export, the Service will consider sustainable use management plans only
when the plan is scientifically valid and nesting (breeding)
information can be provided from countries in which the species breeds.
Sustainable use management plans shall include the following
information, and any other information that may be appropriate:
(1) Background information, including the following:
(i) The scientific and common name of the species;
(ii) Letters from the country of export's Management and Scientific
Authorities transmitting the management plan of this species;
(iii) A summary of the country of export's legislation related to
this species and legislation implementing the Convention, and, where
appropriate, a summary of implementing regulations;
(iv) A summary, from the country of export's Management Authority,
of the country's infrastructure and law enforcement and monitoring
mechanisms designed to ensure both enforcement of and compliance with
the requirements of the management plan, and that the number of birds
removed from the wild or exported will be consistent with the
management plan;
(v) Recent information on the distribution of the species within
the country of export, including scientific references and maps, and
historical information on distributions, if relevant; and
(vi) The species' status and its current population trend in the
country of export, including scientific references and copies of the
most recent non-detriment findings made by the exporting country's
Scientific Authority.
(2) Habitat information, including:
(i) A general description of habitats used by the species for each
portion of the life cycle completed within the country of export;
[[Page 2092]]
(ii) Recent information on the size and distribution of these
habitats throughout the country of export and in each area or region of
take, including scientific references and maps. The approximate
location of any reserves that provide protection for this species
should be indicated on the accompanying map(s), along with a brief
description of how reserves are protected and how that protection is
enforced;
(iii) Status and trends of the important habitats used by the
species in the country of export as a whole whenever available and
within each area or region of take, including scientific references;
(iv) Factors, including management activities, favoring or
threatening the species' habitat in the foreseeable future within each
area or region of take, and throughout the country of export whenever
available, including scientific references; and
(v) A list of management plans that have been or are being planned,
developed, or implemented for the species' important habitats, if any.
(3) Information on the role of the species in its ecosystem,
including:
(i) A description of the part(s) of the species' life cycle
completed within the country of export;
(ii) A description of nest sites and/or plant communities that are
most frequently used for placement of nests and, if applicable, nesting
habits;
(iii) A general description of the species' diet and where the
species forages (aerial feeder, tree canopy, tree trunk, midstory,
understory, open water or other), and seasonal changes in foraging
habits, including, when available, scientific references; and
(iv) Information on any species or plant community which is
dependent on the occurrence of the exotic bird species.
(4) Population dynamics of the species, including:
(i) Recent population data for the population of the species in the
country of export, as derived from indices of relative abundance or
population estimates, along with documentation for each estimate;
(ii) Within each area or region of take, documentation for recent
population data or estimates, conducted for at least 3 separate years
or 1 year with a description of survey plans for future years. These
population assessments should have been conducted during the same
season (breeding or non-breeding) of each year for which documentation
is submitted (i.e., be methodologically comparable--both temporally and
spatially);
(iii) Within each area or region of take, a scientific assessment
(with documentation) of recent reproductive (nesting) success. This
assessment should include information on the number of young produced
per egg-laying female per year or per nesting pair, or if
scientifically appropriate for the species to be exported, estimates on
the number of young produced per year from pre-breeding and post-
breeding surveys conducted within the same annual cycle;
(iv) Within each area or region of take, estimation (with
documentation) of annual mortality or loss including natural mortality
and take for subsistence use, export trade, and domestic trade in each
area of take; or
(v) When appropriate, information (with documentation) on the
number of young which can be taken from the area, as a result of a
conservation enhancement program.
(5) Determination of biologically sustainable use:
(i) Estimation of the number exported from the country during the
past 2 years, and the number of birds removed from the wild for export,
domestic trade, illegal trade, subsistence use, and other purposes
(specify) for the country of export during the past 2 years;
(ii) The estimated number of birds that will be removed from the
wild from each area of take each year for all purposes (export trade,
domestic trade, illegal trade, and subsistence use), including a
description of age-classes (nestlings, fledglings, sub-adults, adults,
all classes), when applicable;
(iii) For the projected take addressed in the management plan, a
description of the removal process, including, but not limited to,
locations, time of year, capture methods, means of transport, and pre-
export conditioning;
(iv) Documentation of how each projected level of take was
determined;
(v) Explanation of infrastructure and law enforcement and
monitoring mechanisms that ensure compliance with the methodology in
the management plan and that the species will be removed at a level
that ensures sustainable use; and
(vi) Description of how species in each area or region of take will
be monitored in order to determine whether the number and age classes
of birds taken is sustainable.
(6) (i) For species that are considered ``pests'' in the country of
origin: documentation that such a species is a pest, including a
description of the type of pest,--e.g., agricultural, disease carrier;
a description of the damage the pest species causes to its ecosystem;
and a description of how the sustainable use management plan controls
population levels of the pest species.
(ii) For non-pest species: A description of how the sustainable use
management plan promotes the value of the species and its habitats.
Incentives for conservation may be generated by environmental
education, cooperative efforts or projects, development of cooperative
management units, and/or activities involving local communities.
(7) Additional factors:
(i) Description of any existing enhancement activities developed
for the species, including, but not limited to, annual banding
programs, nest watching/guarding, and nest improvement; and
(ii) Description, including photographs or diagrams, of the
shipping methods and enclosures proposed to be used to transport the
exotic birds, including but not limited to feeding and care during
transport, densities of birds in shipping enclosures, and estimated
consignment sizes.
(b) Approval criteria. Upon receiving a sustainable use management
plan in accordance with paragraph (a) of this section, the Director
will decide whether or not an exotic bird species should be listed as
an approved species for importation from the country of export, under
section 15.33. In making this decision, the Director shall consider in
addition to the general criteria in part 13 of this subchapter, all of
the following factors for the species:
(1) Whether the country of export is effectively implementing the
Convention, particularly with respect to:
(i) establishment of a functioning Scientific Authority;
(ii) the requirements of Article IV of the Convention;
(iii) remedial measures recommended by the Parties to the
Convention with respect to this and similar species, including
recommendations of permanent committees of the Convention; and
(iv) Article VIII of the Convention, including but not limited to
establishment of legislation and infrastructure necessary to enforce
the Convention, and submission of annual reports to the Convention's
Secretariat;
(2) Whether the country of export has developed a scientifically-
based management plan for the species that:
(i) provides for the conservation of the species and its
habitat(s);
(ii) includes incentives for conservation unless the species is a
documented pest species;
(iii) is adequately implemented and enforced;
(iv) ensures that the use of the species is:
(A) sustainable;
[[Page 2093]]
(B) maintained throughout its range at a level that is consistent
with the species' role in its ecosystem; and
(C) is well above the level at which the species might become
threatened;
(v) addresses illegal trade, domestic trade, subsistence use,
disease, and habitat loss; and
(vi) ensures that the methods of capture, transport, and
maintenance of the species minimize the risk of injury, damage to
health, and inhumane treatment; and
(3) If the species has a multi-national distribution:
(i) Whether populations of the species in other countries in which
it occurs will not be detrimentally affected by exports of the species
from the country requesting approval;
(ii) Whether factors affecting conservation of the species,
including export from other countries, illegal trade, domestic use, or
subsistence use are regulated throughout the range of the species so
that recruitment and/or breeding stocks of the species will not be
detrimentally affected by the proposed export;
(iii) Whether the projected take and export will not detrimentally
affect breeding populations; and
(iv) Whether the projected take and export will not detrimentally
affect existing enhancement activities, conservation programs, or
enforcement efforts throughout the species' range.
(4) For purposes of applying the criterion in paragraph (b)(2)(iv)
of this section, the Director may give positive consideration to plans
wherein very conservative capture and export quotas are implemented
prior to being able to obtain all of the biological information
necessary for a more large-scale management plan, if the country can
demonstrate that such conservative capture and export quotas are non-
detrimental to the species survival in the wild under the criterion in
paragraph (b)(2)(iv) of this section.
(c) Publication in the Federal Register. The Director shall publish
notice in the Federal Register of the availability of each complete
sustainable use management plan received under paragraph (a) of this
section. Each notice shall invite the submission from interested
parties of written data, views, or arguments with respect to the
proposed approval.
(d) Duration of approval. A species and country of export listed in
section 15.33 as approved shall be approved for 3 years, at which time
renewal of approval shall be considered by the Service.
4. Section 15.33(b) is revised to read as follows:
Sec. 15.33 Species included in the approved list.
* * * * *
(b) Non-captive-bred species. The list in this paragraph includes
species of non-captive-bred exotic birds and countries for which
importation into the United States is not prohibited by section 15.11.
The species are grouped taxonomically by order, and may only be
imported from the approved country, except as provided under a permit
issued pursuant to subpart C of this Part.
Dated: November 7, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-795 Filed 1-23-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-682 Federal Motor Vehicle Safety Standards Rear Impact Guards; Rear Impact Protection
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 2004-2036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-682]
[[Page 2003]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
National Highway Traffic Safety Administration
_______________________________________________________________________
49 CFR Part 571
Federal Motor Vehicle Safety Standards Rear Impact Guards; Rear Impact
Protection; Final Rule
Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 /
Rules and Regulations
[[Page 2004]]
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 1-11, Notice 11]
RIN 2127-AA43
Federal Motor Vehicle Safety Standards Rear Impact Guards; Rear
Impact Protection
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes two Federal Motor Vehicle Safety
Standards (FMVSS) which will operate together to reduce the number of
injuries and fatalities resulting from the collision of passenger
vehicles with the rear end of heavy trailers and semitrailers. The
first standard (FMVSS No. 223, Rear Impact Guards, or the ``equipment
standard'') specifies performance requirements that rear impact guards
(guards) must meet before they can be installed on new trailers and
semitrailers. It specifies strength requirements, as well as test
procedures that NHTSA will use to determine compliance with the
standard. The guard may be tested for compliance while mounted to a
non-vehicle ``test fixture'' or a complete vehicle. The equipment
standard also requires the guard manufacturer to provide instructions
on the proper installation of the guard. The final rule also specifies
requirements to ensure energy absorption by the guards.
The second standard (FMVSS No. 224, Rear Impact Protection, or the
``vehicle standard'') requires that most new trailers and semitrailers
with a Gross Vehicle Weight Rating of 4,536 kilograms (kg) (10,000
pounds (lbs)) or more be equipped with a rear impact guard meeting the
equipment standard. Requirements for the location of the guard relative
to the rear end of the trailer are also specified in the vehicle
standard. The vehicle standard further requires that the guard be
mounted on the trailer or semitrailer in accordance with the
instructions of the guard manufacturer.
DATES: This rule will become effective on January 26, 1998. Petitions
for reconsideration of this rule must be received no later than March
11, 1996.
ADDRESSES: Petitions for reconsideration should refer to the docket
number and notice number and be submitted in writing to: Docket
Section, National Highway Traffic Safety Administration, Room 5109, 400
Seventh Street, SW, Washington DC 20590. Telephone: (202) 366-5267.
FOR FURTHER INFORMATION CONTACT: Dr. Leon DeLarm, Dr. George
Mouchahoir, or Mr. Sam Daniel, in the Office of Vehicle Safety
Standards (Telephone: 202-366-4919), or Mr. Paul Atelsek, in the Office
of the Chief Counsel (202-366-2992), National Highway Traffic Safety
Administration, 400 Seventh Street, SW, Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. The Safety Problem
II. Existing Regulations
III. Past Proposals
IV. Summary of the 1981 NPRM
V. Summary of 1981 NPRM Comments
VI. Summary of the 1992 SNPRM
VII. Summary of 1992 SNPRM Comments
VIII. Recent Testing by NHTSA
IX. Overview of the Final Rule
X. Summary of Changes From the 1992 SNPRM
XI. Analysis and Response to Comments on the 1992 SNPRM
A. Separate Equipment and Vehicle Standards
B. Standard for Equipment
1. Relationship of Strength, Energy Absorption, and PCI
2. Guard Strength
3. Guard Energy Absorption
4. Vertical Cross-sectional Height of Horizontal Cross-member
5. Shape of the Horizontal Cross-member
6. Guard Attachment
7. Compliance Test Requirements and Procedures
a. Dynamic Versus Static Testing
b. Test Sites
c. Labeling and Certification
C. Standard for Vehicles
1. Configuration Issues
a. Maximum Guard Ground Clearance
b. Guard Width
c. Specification of the Rear Extremity
d. Distance Between the Guard Rear Surface and the Vehicle Rear
Extremity
2. Exclusions
a. Single Unit (Straight Body) Trucks
b. Special Purpose Vehicles
c. Wheels Back Vehicle
D. Costs
E. Benefits
F. Lead Time
G. Miscellaneous Issues
1. Metric System Units
2. Federal Highway Administration Rulemaking on Underride Guards
XII. Rulemaking Analyses and Notices
A. Executive Order 12866 (Federal Regulation) and Regulatory
Policies and Procedures
B. Regulatory Flexibility Act
C. Executive Order 12612 (Federalism)
D. Preemptive Effect and Judicial Review
E. Paperwork Reduction Act
I. The Safety Problem
This rule addresses the problem of rear underride crashes, in which
a passenger car, light truck, or multipurpose vehicle with a Gross
Vehicle Weight Rating (GVWR) of 4,563 kg (10,000 lbs) or less (referred
to collectively in this rule as passenger vehicles) collides with the
rear end of a trailer or semitrailer (trailers and semitrailers are
referred to collectively in this rule as trailers) and the front end of
the passenger vehicle slides under (i.e., underrides) the rear end of
the trailer. Underride occurs to some extent in most collisions in
which a passenger vehicle crashes into the rear end of a large trailer
because most trailer beds are higher than the hoods of passenger
vehicles. In the worst cases, referred to as passenger compartment
intrusion (PCI) or ``excessive underride'' crashes, the passenger
vehicle underrides so far that the rear end of the trailer strikes and
enters its passenger compartment. PCI collisions generally result in
passenger vehicle occupant injuries and fatalities caused by occupant
contact with the rear end of the trailer.
The solution to PCI is upgrading underride guards to make them
stronger, but this introduces another concern. Even if guards succeed
in preventing PCI, overly rigid guards may stop the passenger vehicle
too suddenly, resulting in excessive occupant compartment deceleration
forces and killing or injuring passenger vehicle occupants.
The agency estimates that about 11,551 rear-end crashes with
trucks, trailers, and semitrailers occur annually. These crashes result
in approximately 423 passenger vehicle occupant fatali-ties and about
5,030 non-fatal injuries.
II. Existing Regulations
The initial Federal regulation addressing the issue of heavy
vehicle rear underride was issued in 1953 by the Bureau of Motor
Carriers of the Interstate Commerce Commission (presently the Office of
Motor Carriers of the Federal Highway Administration, DOT). This
regulation (49 CFR 393.86), which is still in effect, requires heavy
trucks, trailers, and semitrailers to be equipped with a rear-end
device designed to help prevent underride. The rule requires that the
ground clearance of the underride guard not exceed 760 mm (30 inches
(in)) when the vehicle is empty. The rule also requires that the device
be located not more than 610 mm (24 in) forward of the rear of the
vehicle and that it extend laterally to within 460 mm (18 in) of each
side. The regulation further requires that the ``[guards] shall be
substantially constructed and firmly attached.''
The Research and Special Programs Administration (RSPA) of DOT has
[[Page 2005]]
specified configuration requirements for guards on tankers that carry
hazardous materials (49 Part 178.345-8). The bottom of the guard must
be at least 100 mm (4 in) below the lower surface of any part of the
rear of the vehicle, and not more than 1,520 mm (60 in) from the ground
when the tanker is empty. The guard must be very strong. It must
deflect 150 mm (6 in) forward when subjected to a 20 m/s\2\ (2 G)
impact while loaded, without contacting the cargo tank. These
requirements are designed primarily to protect the tank and piping, not
the colliding vehicle, in the event of a rear end collision.
III. Past Proposals
From time to time, NHTSA has assessed the requirements of the
Federal Highway Administration's (FHWA) regulation and considered
whether NHTSA should issue a Federal Motor Vehicle Safety Standard
(FMVSS) requiring heavy vehicles to be equipped with rear underride
protection. The issues of particular concern have been the requirements
for rear end guard ground clearance, guard strength, and the injury and
fatality benefits of such a standard. The most recent of several NHTSA
notices was a Supplemental Notice of Proposed Rulemaking (SNPRM) issued
in 1992 (57 FR 252; January 3, 1992). Prior to the 1992 SNPRM, the
agency issued a Notice of Proposed Rulemaking (NPRM) in 1981 (46 FR
2136; January 8, 1981.) The notices of proposed rulemaking issued by
NHTSA and FHWA prior to the 1981 NPRM are cited and discussed in the
1981 NPRM (Docket 1-11; Notice 8).
IV. Summary of the 1981 NPRM
The 1981 NPRM proposed to adopt a FMVSS for all new trucks and
trailers with a GVWR of 4536 kg (10,000 lbs) or more. This NPRM was
issued after research and computer modeling studies indicated that it
was feasible to manufacture light-weight guards that could prevent
excessive underride and absorb crash energy. Guard energy absorption is
important because overly rigid guards could result in passenger
compartment forces that would increase the risk of occupant injuries
even in the absence of underride.
The 1981 NPRM proposed that heavy trailers, semitrailers, and
single unit (i.e., unarticulated) trucks be equipped with an underride
guard that met certain requirements for strength and configuration. The
NPRM proposed exclusions from this requirement for trailers with
chassis that are low enough to the ground to meet the configuration
requirements for the underride guard (low chassis vehicle), trailers
that have the rear tires set back to within 305 mm (12 in) of the rear
(wheels back vehicle), and trailers that have work-performing equipment
in the lower rear whose function would be impaired by a guard (special
purpose vehicle).
NHTSA tentatively concluded that the proposed standard was superior
to the FHWA regulation in three major ways. First, NHTSA specified
objective requirements for guard strength (FHWA requires that the guard
be ``substantially constructed and firmly attached''). Second, the NPRM
proposed a guard configuration that permitted less ground clearance 560
mm (22 in), less longitudinal distance between the guard and the
trailer rear extremity 305 mm (12 in), and less lateral distance
between the guard and the vehicle side extremities 100 mm (4 in), than
the FHWA regulation. Third, the NPRM specified detailed procedures for
testing the guards as installed on the vehicle for which they were
intended by applying a specific force at certain points on the guard.
V. Summary of 1981 NPRM Comments
The agency received over 100 comments on the NPRM. Many of the
comments were from vehicle manufacturers and operators who believed
their vehicles should be excluded from the requirements because they
were special purpose vehicles. Some commenters objected to the proposed
requirements and suggested alternative means of reducing the injuries
and deaths caused by rear underride crashes. The alternative approach
most often cited involved reducing the incidence of underride crashes
through improved heavy vehicle conspicuity.
The agency agreed that conspicuity was an important issue. The
Fatal Accident Reporting System (FARS, a database containing a census
of all vehicle fatalities in the U.S.) statistics had indicated that
about 65 percent of the fatalities resulting from passenger vehicle
collisions with the rear end of heavy vehicles occurred under non-
daylight conditions. NHTSA conducted a fleet study between 1980 and
1985 of the effectiveness of improved conspicuity. As a result of this
study, the agency determined that conspicuity improvement could reduce
the incidence of the accidents by about 15 percent. Consequently, the
agency published a NPRM on improved heavy vehicle conspicuity in
December 1991, (56 FR 63474) and a final rule on conspicuity
improvement in December 1992 (57 FR 58406).
The agency believes, however, that improved rear impact guards
could mitigate some of the rear impact fatalities and serious injuries
not addressed by the improved conspicuity rule. The rear impact guard
is especially important in cases in which the passenger vehicle
driver's abilities are impaired by alcohol or drowsiness. Accident data
indicate that alcohol is a factor for passenger vehicle drivers in
about 30-40 percent of fatal rear underride accidents.
Commenters on the 1981 NPRM also expressed concern that the
proposed requirements would be a substantial financial burden on some
truck and trailer manufacturers. Several commenters argued that the
agency's cost estimate for rear underride guards was well below the
actual cost of equipping the wide variety of single unit trucks with
compliant guards. As to the trailer manufacturing industry, its members
were said to be predominantly small firms that lack the engineering
capabilities to meet the requirements of the proposed rule. In response
to the comments and statistical data, the agency sought to determine if
it could revise the proposed rule to reduce the financial burden on the
manufacturers.
VI. Summary of the 1992 SNPRM
The 1992 SNPRM contained requirements that are similar to those in
the 1981 NPRM in terms of the guard's strength and configuration.
However, the SNPRM differed substantially from the NPRM in terms of its
impact on the industry. In place of the 1981 proposal of a single
vehicle standard specifying the testing of guards on a completed
vehicle, the SNPRM proposed two standards: (1) An equipment standard
providing for the testing of guards on a test fixture, and (2) a
vehicle standard requiring installation of guards complying with the
equipment standard.
The equipment standard proposed strength requirements and an
objective test for determining compliance with these requirements. The
guard manufacturer would conduct a test involving quasi-static loading
of the guard with the guard mounted on a rigid test fixture rather than
installed on a completed vehicle. Guards certified as passing the test
could then be marketed to vehicle manufacturers for installation in
accordance with the configuration requirements of the vehicle standard.
Testing in this manner would relieve vehicle manufacturers, especially
small ones, of the burden associated with compliance testing.
The other major difference from the NPRM is that the SNPRM proposed
to exclude single unit trucks from the rulemaking. NHTSA added this
[[Page 2006]]
exclusion to those in the NPRM because single unit trucks are far less
likely to be involved in fatal accidents than combination trucks (i.e.,
trailers and semitrailers). FARS and GES accident statistics indicate
that only about 27 percent of the 423 average annual rear end
fatalities and 18 percent of the 5,030 injuries involve single unit
trucks, even though these vehicles represent 72 percent of the
registered heavy vehicles. Thus, single unit trucks are significantly
under-represented in rear end crashes. On the other hand, trailers are
highly over-represented in rear end crashes, as they represent only 28
percent of the registered heavy vehicles, but account for 73 percent of
the occupant fatalities and 82 percent of the injuries. Therefore, the
agency believed that excluding single unit trucks from the proposed
rule would result in a better rule in terms of the ratio of benefits to
costs.
VII. Summary of 1992 SNPRM Comments
The agency received approximately 2,250 individual comments on the
SNPRM. Industry-related comments were generally supportive of the
proposal, while consumer interest organizations, local and State
governments, and private citizens were generally critical.
Representing the industry were comments from automobile and truck
manufacturers, trade associations, manufacturers of trailers and
semitrailers, and manufacturers of specialized usage heavy duty
vehicles. Most of these commenters supported Federal rulemaking in this
area. The trade associations and manufacturers of trucks and trailers
were generally in agreement with the proposed requirements.
Manufacturers and operators of specialized vehicles suggested that the
proposed rule be modified to better define the types of vehicles that
would be excluded from the standard.
The vast majority of the critical comments were post cards or
letters with multiple signatures from private citizens. These post
cards and letters, as well as more detailed submittals from consumer
interest organizations, expressed concern that the agency's proposal
had three deficiencies. First, the commenters recommended that the
rulemaking apply to single unit trucks as well as trailers and
semitrailers. Second, the commenters recommended that the proposed
maximum ground clearance, 560 mm (22 in), be reduced to a 405 to 455 mm
(16 to 18 in) range. Third, these commenters expressed the opinion that
the agency should mandate ``energy absorbing'' rear impact guards for
heavy vehicles, i.e., guards with hydraulic pistons or shock absorbers
designed to deflect or deform in a controlled manner upon impact and
thereby lessen the deceleration experienced by passenger vehicles
colliding with them. Several consumer interest organizations and
private citizens also suggested that the proposed minimum guard
strength requirements were insufficient.
The consumer interest organizations and some private citizens also
expressed concern that the proposed equipment standard for the rear
impact guard did not require guards to be tested while mounted on a
vehicle. As a result, guards complying with the proposed strength
requirements could be installed on vehicles in such a location or in a
manner that the guard/vehicle combination would be ineffective. In
addition, some of these commenters stated that the crash tests NHTSA
relied on in formulating the SNPRM were inadequate because they were
not conducted under representative conditions of guard height, car
bumper height, and car speed. Specifically, they stated that car bumper
height would be depressed if the driver were braking to avoid colliding
with the trailer, thus increasing the likelihood that the car hood
would underride a 560 mm (22 in) high guard without engaging any
substantial body structure. The consumer interest organizations also
questioned the validity of the FARS accident data that NHTSA used to
determine the benefits of the SNPRM, contending that the agency had
underestimated the benefits of the rule. The state and local
governments that commented expressed concerns similar to those raised
by private citizens and consumer interest organizations.
A summary of comments has been prepared and is available for
inspection in Docket No. 1-11. Significant SNPRM issues raised by the
commenters and NHTSA's response to the comments are discussed below. In
response to the comments, the final rule includes several modifications
to the rule proposed in the SNPRM, including clarified definitions,
improved compliance test procedures, and a minimum guard energy
absorption requirement.
VIII. Recent Testing by NHTSA
In responding to comments to the SNPRM and a congressional request
for a report on several heavy truck underride issues, NHTSA conducted a
research project on Heavy Truck Rear Underride Protection at the
Vehicle Research and Testing Center (VRTC) between September 1992 and
June 1993 to evaluate the effectiveness of an underride guard meeting
the requirements of the SNPRM. A copy of the test report (VRTC-82-0267)
was placed in the public docket (No. 01-11-N09-54. See also Publication
No. DOT-HS-808-081).
For the purposes of the evaluation, NHTSA took the conservative
approach of modifying the most common conventional guard design and
developed a rear impact guard that was only slightly (10 percent)
stronger than the minimum requirements of the SNPRM when tested at the
vertical supports, which is the most significant location along the
width of the guard's horizontal member. NHTSA arrived at this
``minimally complying'' design through an iterative process of
fabrication and testing in accordance with the proposed compliance test
procedures.
These minimally compliant guards were then evaluated in two series
of full scale crash tests. The guards provided the proposed maximum
ground clearance 560 mm (22 in). For the initial series of crash tests,
the guards were mounted to a test fixture simulating the geometry of
the rear end of heavy trailers. The guards were mounted on a late model
production trailer for the other series. A total of seven crash tests
were conducted with the minimally complying guard design. The tests
were conducted at an impact speed of 48 kph (30 miles per hour (mph))
with late model compact and subcompact cars with mass between 1135 and
1590 kg (or weight between 2500-3200 lbs). In each category, vehicles
were selected which had low hood profiles, and were therefore most
likely to underride the 560 mm (22 in) guard height.
Four of the seven crash tests resulted in no PCI when the minimally
compliant guard was mounted flush with the rear extremity of the
trailer and simulated trailer. See Tables 6, 8, and 10 of the VRTC test
report. The hood of one passenger car was driven through the windshield
during one of these tests (Corsica 1, VRTC test report, page 26). The
magnitude of the passenger compartment intrusion by the hood was
marginal, however, and the test dummies were not contacted by the hood
during the collision. Two cases of PCI were caused by guard system
failure, one in a simulated trailer test and one in a production
trailer test (respectively, Saturn 1 in Table 8 and Corsica (trailer)
in Table 10 of VRTC test report). The guard system failure in the
simulated trailer test was due to attachment hardware failure. The
failure in the production trailer test was the
[[Page 2007]]
result of trailer structural failure at the guard attachment locations.
In each case, the guard attachment hardware and the trailer structure
were upgraded with simple, inexpensive materials for subsequent tests.
Retests with the modified hardware and trailer frame showed adequate
guard system performance.
All these crash tests included Hybrid III test dummies positioned
in the driver and outboard front passenger seating locations for each
crash test. The procedures used for frontal barrier crash test
preparation under FMVSS No. 208, Occupant Crash Protection, were
followed with respect to dummy positioning, restraint usage, and dummy
instrumentation. Dummy instrumentation indicated very low potential for
serious or fatal injury in all seven of the crash tests with the
minimally compliant guard, even those in which there was PCI.
The VRTC research project also performed a crash test using a very
strong, i.e., ``rigid,'' guard, to compare the amount of underride and
deceleration forces generated with those generated by the minimally
compliant guard. The 48 kph (30 mph) impact generated a peak force of
about 415 kN (93,000 lbs) and the guard sustained an insignificant
amount of permanent deformation. Although underride in this crash test
was minimal, occupant compartment forces generated during the crash
were significant, with on-board dummy readings indicating a potential
for serious driver chest injuries (dummy chest acceleration was 61 G,
slightly higher than the 60 G permitted in FMVSS No. 208, Occupant
Crash Protection). A similar crash test with the minimally compliant
guard was conducted with the same make and model passenger vehicle. The
minimally compliant guard, with a force resistance capability of about
200 kN (45,000 lbs), allowed more underride than the rigid guard and
marginal PCI. However, at 48 kph (30 mph), the minimally compliant
guard test generated occupant compartment forces low enough that they
posed essentially no potential for life-threatening occupant injuries.
This test further demonstrated the adequacy of the proposed guard
ground clearance requirement of 560 millimeters (mm) (22 in).
IX. Overview of the Final Rule
This rule establishes two Federal Motor Vehicle Safety Standards.
The two standards are being announced in this single notice because
they are complementary and because their substantive requirements both
derive from a single standard proposed in an earlier NPRM (Docket No.
1-11, notice 8). The first standard will be referred to as the
``equipment standard'' because it sets forth requirements that a rear
impact guard must meet as an item of motor vehicle equipment. The
second standard will be referred to as the ``vehicle standard'' because
it requires a new trailer or semitrailer to be equipped with a guard
that meets the equipment standard.
The equipment standard specifies the procedures that the agency
will use when testing a guard. The guard is first mounted to a rigid
test fixture or a secured trailer, in accordance with the installation
instructions which the guard manufacturer is required to provide. The
standard describes how to select three test locations across the width
of the guard. At these three locations, the testing procedure provides
that force be slowly applied until the guard has been deflected by 125
mm (5 in). The standard specifies procedures for determining whether
the tested guard has met the minimum requirements for strength and
energy absorption. Guards that can pass the strength and energy
absorption tests may be certified and labeled as complying with the
equipment standard and sold to vehicle manufacturers if accompanied by
the necessary attachment hardware and mounting instructions.
The guard mounting instructions are a crucial interface between the
equipment standard and the vehicle standard. NHTSA has modified the
equipment standard proposed in the SNPRM to require the guard
manufacturer's instructions to include (1) a description of the types
of structures to which attachment must be made, and (2) the manner in
which attachment must be made, in order for the guard to perform in its
designed fashion.
The vehicle standard requires that most new trailers and
semitrailers be equipped with a rear impact guard certified to the
equipment standard. The vehicle manufacturer can manufacture and
certify the guards according to the equipment standard, or simply
purchase and install certified guards from a guard manufacturer. The
vehicle standard requires that the guards extend laterally to within
100 mm (4 in) of the sides of the trailer, that the guard have a ground
clearance of no more than 560 mm (22 in), and that the guard be placed
as close to the rear of the vehicle as possible. To ensure that the
guard will perform properly, the vehicle standard further requires that
the guard be mounted on the trailer or semitrailer in accordance with
installation instructions provided by the guard manufacturer.
The vehicle standard lists and defines certain types of vehicles
that are excluded from the requirement to have rear impact guards.
Single unit (unarticulated) trucks, truck tractors, pole trailers, low
chassis vehicles, special purpose vehicles, and wheels back vehicles do
not have to have rear impact guards.
X. Summary of Changes From the 1992 SNPRM
The greatest change from the SNPRM is the addition to the equipment
standard of a requirement for energy absorption. The SNPRM would have
permitted fairly rigid guards because it did not require the guard to
yield in response to force. Rigid guards may stop the passenger vehicle
too quickly, causing occupant deaths and injuries from sudden
deceleration. To ensure that the guards will yield, this rule adds a
requirement that the guards absorb a certain amount of energy during
the strength test. The new requirement does not necessitate the use of
any additional new test equipment or the following of any additional
test procedures. It does require more frequent measurements of the load
during the strength test, and a few extra calculations after the test.
The test procedures in the equipment standard have been modified to
allow velocity-sensitive rear impact guards. Velocity-sensitive guards
would have failed the quasi-static strength test procedure proposed in
the SNPRM because these guards are designed to provide resistance that
is proportional to the displacement rate, and the test procedure
displaces the guard very slowly. The final rule provides for modifying
the guards to deactivate the energy absorbing components prior to the
strength test. Because velocity sensitive guards typically have
excellent energy absorption characteristics and because quasi-static
testing does not test their energy absorbing capabilities, velocity-
sensitive guards do not have to be tested for energy absorption. The
only type of velocity-sensitive guards that the agency is aware of use
hydraulic fluid properties to deform in a controlled manner. Therefore,
these ``hydraulic guards'' are the only ones excluded from the energy
absorption test.
The final rule requires greater specificity in statements regarding
trailer structure in the installation instructions provided by the
guard manufacturer. The SNPRM said only that the instructions had to
specify the types of vehicles for which the guard was intended, state
the necessity for
[[Page 2008]]
attaching the guard to the vehicle chassis, and explain how the
attachment hardware was to be used. The regulatory text of the final
rule makes it clear that the installation instructions must specify all
aspects of the trailer that are necessary to the proper functioning of
the guard. The test procedure has been modified to indirectly test the
adequacy of the attachment.
NHTSA has changed some of the guard configuration requirements in
the vehicle standard. The SNPRM proposed to require that the horizontal
member of the guard extend to within 100 mm (4 in) of the side
extremities of the vehicle and to within 305 mm (12 in) of the rear
extremities. These requirements have been modified to allow rounded
guard ends. The final rule allows an extra six inches in these
dimensions only for the portion of a guard that is curved. Using
rounded guard ends will diminish the hooking potential of the guards
when the trailer is turning sharply. Guard ends that are rounded upward
and attached to the vehicle may add strength to the horizontal member
near the side extremity of the vehicle.
To account for high, overhanging rear protrusions on trailers,
NHTSA changed the definition of the vertical zone to be considered when
determining the trailer's ``rear extremity.'' Determination of the
``rear extremity'' is important because the location of the guard is
based on the location of the rear extremity. The SNPRM defined ``rear
extremity'' as the rearmost point above 560 mm (22 in) from the ground.
Since high overhangs pose no risk to colliding passenger vehicles,
NHTSA has set a maximum height of 1905 mm (75 in) from the ground on
the zone. Higher protrusions will not be considered as the rear
extremity.
Another change in the configuration requirements is that the final
rule requires the guard to be mounted as close to the rear extremity as
practical within the 305 mm (12 in) zone forward of the rear extremity.
The SNPRM did not regulate where in the zone the guard had to be
mounted.
XI. Analysis and Response to Comments on the 1992 SNPRM
A. Separate Equipment and Vehicle Standards
Companies such as Waltco and industry groups such as the National
Truck Equipment Association supported the separate equipment and
vehicle standards as a method to prevent undue testing burdens.
One of the concerns raised by consumer interest organizations is
that allowing the guards to be tested on a ``non-vehicle'' rigid test
fixture posed a problem if it is done in the expectation that the
guards would necessarily perform in a similar manner once they are
installed on vehicles. The Institute for Injury Reduction (IIR)
commented that neither the equipment standard nor the vehicle standard
specifies or regulates the interface between the guard and the vehicle.
Therefore, IIR was concerned that there are no ``real-world'' tests
performed on the guards as installed on the vehicle and suggested that
it is unclear whether a failure of such a test would represent
noncompliance by the guard manufacturer, the vehicle manufacturer,
both, or neither.
NHTSA agrees that an underlying assumption of this regulatory
scheme is that the guards would perform in the real world in a manner
similar to the way they do in the tests. This assumption is supported
by the results of the VRTC research project, which show that the
maximum force measured in quasi-static tests is similar to the maximum
force generated in dynamic crash tests. Moreover, this regulatory
scheme has worked well for tires, which also have separate equipment
(49 CFR 571.109) and vehicle (Sec. 571.110) standards.
NHTSA disagrees with IIR's argument that separate guard and vehicle
standards leave the guard/vehicle interface unregulated. The vehicle
standard specifies that the guard be attached in accordance with the
guard manufacturer's installation instructions, the same instructions
used to attach the guard to the test fixture during agency compliance
testing under the equipment standard.
When writing installation instructions, the guard manufacturer must
take into account the possibility of inadequate trailer structure to
support the guard. Depending on the guard design, the guard
manufacturer may want to specify in the instructions that the guard
cannot be attached to certain structures (e.g., floorboards) and that
it must be attached to other surfaces, for example, frame rails with a
horizontal surface and specified wall thickness of a certain material
(e.g., hardened steel). The guard manufacturer may have to specify
local reinforcement if the trailer chassis is inadequate to pass the
compliance test with the chassis surface mounted on the rigid test
fixture.
The installation instructions must be appropriate to the trailer
design, so that the vehicle manufacturer knows which guard to purchase
and does not have to deviate from the instructions to install the
guard. To help assure this, the regulatory text has been modified to
make it clear that the guard manufacturer must either list appropriate
trailers or specify in the installation instructions all attributes
that make a trailer suitable for the proper installation and
functioning of the guard. These include the types of trailer
structures, design types with dimensions, materials thickness and tire
track widths that are appropriate as an installation location.
NHTSA will install the guards during compliance testing based on
these instructions. Therefore, it is essential that the attachment site
and attachment method be adequately specified. This is especially
important to avoid failure of the attachment itself during the test.
In a VRTC test of the minimally complying guard mounted on a
typical trailer, the trailer frame rails worked with the guard by
bending/deforming to absorb the colliding vehicle's crash energy.
However, the attachment site on the frame rails had to be strengthened
with an inexpensive local reinforcement.
IIR's argument that failure during compliance testing would leave
the identity of the non-complying party in doubt is incorrect. The only
testing procedures in NHTSA's rule are the compliance tests in the
equipment standard. Therefore, the only party that can be responsible
for a testing failure is the guard manufacturer. Noncompliance by the
vehicle manufacturer may be established by inspecting the vehicle and
observing improperly installed guards, such as during an FHWA heavy
truck inspection. If the vehicle manufacturer manufactures the guard
which it uses, as NHTSA believes will usually be the case, there will
be no ambiguity as to the party responsible for testing failure or
improper installation.
B. Standard for Equipment
1. Relationship of Strength, Energy Absorption, and PCI
In specifying performance standards for rear impact guards, the
agency must balance various performance attributes. The vast majority
of the commenters, including virtually all of the consumer safety
groups, asserted that underride guards should be strong, yet energy
absorbing. NHTSA agrees that these are both desirable properties in an
underride guard, but emphasizes that an increase in strength may result
in a decrease in the capability of the guard to absorb energy, and vice
versa. An impact guard strong enough to restrain a large car travelling
at high speeds would impart high deceleration forces to a small car
crashing into it at the
[[Page 2009]]
same speed. Conversely, an impact guard that is optimized to restrain a
small car without excessive deceleration forces might fail (i.e.,
deform so much that it allows PCI) if a large car crashes into it, or
if a small car crashes into it at higher speeds.
Energy absorption must also be balanced against PCI prevention.
Energy absorption may be maximized by allowing the guard to yield for a
greater distance before bringing the passenger car to a stop. However,
the more the guard yields, the farther the colliding vehicle travels
and the greater the likelihood of PCI. This rulemaking has focussed on
balancing the need for PCI-prevention against minimizing crash
injuries. FARS data show a strong correlation between PCI and
fatalities or serious injuries. Preventing PCI demands a guard that is
strong enough to prevent the passenger vehicle from advancing very far
after contact with the guard.
Compounding the difficulty of balancing the guard's performance
attributes is the wide range of colliding passenger vehicle weight,
speed, and size. The combination of weight and speed determines the
level of kinetic energy to which the guard will be subjected. Passenger
vehicle weight generally correlates with the hood height and length,
which determines how far the vehicle can proceed after contact with the
guard before PCI occurs. Fortunately, these factors offset one another
for large cars (i.e., the greater weight promotes greater amounts of
underride, while the higher hood profile results in better guard
engagement and the longer hood allows for more underride before
experiencing PCI).
Small pickups and vans have relatively high profiles but a
relatively short distance from the front of the vehicle to the occupant
compartment. A guard would have to yield only slightly, or have high
strength to prevent minivans and some pickups (which typically have a
mass more than 1810 kg or weigh more than 4,000 lbs and have short
hoods) from experiencing PCI. Because the passenger compartment is so
close to the front of a heavy standard van, no underride guard is
likely to be very effective in preventing PCI for these vehicles.
Nevertheless, some reduction in fatalities and non-fatal injuries can
be expected due to the initial energy absorption of the guard.
Fortunately, vans have only been involved in 0.5 percent of all
underride fatalities from 1982 to 1992. Pickups have been involved in
about 18 percent of the fatalities during this period.
It should be recognized, therefore, that impact guards cannot be
optimized for all situations. The requirements in this rule should
reduce the incidence of PCI, fatalities, and injuries for all passenger
vehicles, but some more than others. A minimally compliant guard should
protect all passenger vehicles from PCI and excessive deceleration
forces up to some speed in the 40 kph (25 mph) to 56 kph (35 mph)
range, although that speed will vary on a sliding scale depending on
the vehicle weight and front end profile. For example, NHTSA
analytically estimates that mid and full size cars and light trucks and
vans with a mass greater than 1590 kg (3,500 lbs) will experience PCI
at approximately 43 kph (27 mph), while mini-compacts of less than 1135
kg (2,500 lbs) will be able to collide with the required guard at about
61 kph (38 mph) without PCI. This estimate is obtained by equating the
energy absorbed by a 48 kph (30 mph) collision of a 1590 kg (3,500 lb)
vehicle rigid barrier crash to the energy absorbed by a different
weight vehicle). For example, for a 907 kg (2000 lb) vehicle, the
calculated impact speed without PCI is: (square root of (1,590 kg/907
kg)) x 48 kph=63.5 kph, or (square root of (3,500 lb/2,000 lb)) x 30
mph=39.7 mph.
2. Guard Strength
Several consumer interest organizations and private citizens
criticized the 1992 SNPRM's proposed guard strength requirements. These
commenters' objections are either that guards meeting the requirements
would be too weak to prevent underride or that they would be so strong
that the passenger vehicle would be subjected to excessive deceleration
forces. As explained above, the issues of strength and energy
absorption are closely related. However, issues relating primarily to
energy absorption will be addressed in the next section.
The SNPRM, which was premised upon underride protection being
provided by a horizontal member, proposed to require that the
horizontal member resist a force of 50 kilonewtons (kN) (11,240 lbs)
applied at the center (site P2) and near the outboard ends (sites P1),
and a force of 100 kN (22,480 lbs) at an intermediate position (sites
P3), in separate quasi-static strength tests. For these tests, guard
resistance at the specified force level would have to occur at less
than or equal to a 125 mm (5 in) displacement of the guard's horizontal
member.
Several commenters stated that overly ``rigid'' or non-yielding
guards would be permitted by the proposed rule. They expressed concern
that those guards would be too stiff, citing the results of full-scale,
heavy truck rear underride crash tests conducted in the late 1970's and
early 1980's by the Texas Transportation Institute (TTI), Dynamic
Sciences, Inc., and the Insurance Institute for Highway Safety (IIHS).
These crash tests indicated occupant compartment forces generated in
collisions with rigid guards at impact speeds above 48 kph (30 mph)
could produce potentially fatal driver and front passenger head and
chest injuries.
Advocates for Highway and Auto Safety (Advocates) stated that the
proposed guard would not perform as well as the agency expects, and
would be excessively deformed or fail in impacts not much above 40 to
48 kph (25 to 30 mph). Advocates further stated that NHTSA directed its
contracted researcher in 1982 to reduce the impact speed of a dynamic
crash test on a Chevrolet Impala from 48 kph (30 mph) to 40 kph (25
mph), specifically to ensure that excessive underride did not occur.
The actual speed of the tested 1,840 kg (4,060 lb) Chevrolet Impala was
38.5 kph (23.9 mph). Advocates contends that the agency admitted in a
memorandum from Mr. Tomassoni (who worked for NHTSA at the time) that
the test would have resulted in PCI at 48 kph (30 mph). IIHS also
included these criticisms in its comment.
Some commenters recommended that NHTSA require specific levels of
strength higher than those proposed in the SNPRM. Advocates attached a
1991 technical paper by Mr. G. Rechnitzer, of Monash University in
Australia, which reviewed European truck underride data. The example
with the widest application, the Economic Commission for Europe's (ECE)
Regulation No. 58 for heavy truck rear underride guards, currently
requires a guard force resistance of 100 kN (22,480 lbs) at the point
on the guard corresponding with this rule's P3 test point, 50 kN
(11,240 lbs) at the center, and up to 25 kN (5,620 lbs) at the outboard
test position corresponding with this rule's P1 position. Mr.
Rechnitzer recommended that the rear impact guard strength requirements
be upgraded to 150 kN (33,370 lbs) at the P3 location and 100 kN
(22,480 lbs) at the center and P1 locations. Mr. Byron Bloch, of Auto
Safety Design, suggested an even stronger guard. He thought the rule
should require that the guard resist 222 kN (50,000 lbs) at the P3 test
location, where the SNPRM requires that the guard resist a force of 100
kN (22,480 lbs).
The VRTC tests indicate that the strength of the 1992 SNPRM guard
is adequate for preventing underride with
[[Page 2010]]
PCI in a collision with an impact speed of up to 48 kph (30 mph) for
vehicles with a mass of about 1,450 kg (3,200 lbs). PCI resistance
would be expected at higher impact speeds for lighter vehicles and
lower impact speeds for heavier vehicles. The test data also indicate
that rear impact guards having somewhat more strength than the proposed
level of strength could resist PCI at higher impact speeds without
generating life-threatening passenger compartment force levels.
Although stronger guard strengths may be desirable, the agency cannot
quantify the increased benefits that might be obtained without further
testing.
Based on the VRTC tests, the agency believes that the guard
strength requirements proposed in the 1992 SNPRM are of sufficient
magnitude to prevent PCI for most late model passenger vehicles at
impact speeds of about 45 kph (28 mph). This rule has an additional
requirement that guards yield enough to maintain survivable levels of
occupant compartment deceleration when impacted by passenger vehicles.
Therefore, the agency has decided to retain the strength requirements
of the SNPRM in the final rule.
The IIHS advocated a specific guard design, which it said was
preferable for strength purposes. That organization believes a diagonal
strut from the horizontal member of the guard to the trailer chassis
could augment guard strength without a large increase in guard weight.
NHTSA agrees with the IIHS that this type of design is quite efficient
with respect to weight and strength, though not necessarily with
respect to energy absorption. However, the agency does not believe that
it is necessary or desirable to mandate a specific design, since
similar crash performance may be achieved with other designs.
3. Guard Energy Absorption
Although all non-rigid guards absorb some of the kinetic energy of
the striking vehicle, there was considerable concern that the SNPRM did
not require energy absorbing guards. The consumer interest
organizations and about 2,200 private citizens urged NHTSA to mandate
``energy absorbing'' guards. By deforming, rear impact guard structures
absorb some of the kinetic energy of the striking vehicle. The more
energy the guard absorbs, the less energy must be absorbed by
deformation of the striking vehicle before it stops. Commenters were
concerned that the SNPRM would have permitted rigid guard designs that
would impart high levels of crash forces to the striking vehicle's
occupants.
As used by the consumer interest groups, the term ``energy
absorbing guards'' generally refers to guards whose vertical support
members are designed to pivot about their attachment braces at the
vehicle chassis. These guards absorb energy by means such as
cylindrical, telescoping hydraulic or plastic struts, which are also
attached to the guard's horizontal member and the vehicle chassis. When
impacted, these energy absorbing units respond by compressing without
substantial deformation until the units have reached their maximum
deflection, or ``bottomed out.'' On the other hand, the primary energy
absorbing mechanism of a fixed guard, such as the design used in the
VRTC tests, is the flexing and bending of the guard's vertical
supports. Keeping this in mind, the agency uses the term ``energy
absorbing guards'' below in the same sense as used by the commenters,
as a shorthand way of referring to guard designs with special energy
absorbing design features.
Advocates recommended that guards be required to be energy
absorbing so that 64 kph (40 mph) impacts of small cars with the rear
of heavy vehicles are survivable through the combined energy absorption
of the car and the guard. The National Association of Independent
Insurers (NAII) suggested that the proposed rule be modified to require
a more flexible, energy absorbing guard. Citizens for Reliable and Safe
Highways (CRASH) stated that the agency fails to acknowledge the need
for and potential benefits from improved, slightly more expensive,
energy absorbing guards that are in use in Europe.
To ensure that the guard will provide the combination of strength
and energy absorption necessary to prevent underride with PCI at a
specified impact speed, as recommended by Advocates, a full-scale
dynamic compliance test including a passenger vehicle would be
necessary. VRTC conducted full-scale crash tests with guards that were
also tested in accordance with the SNPRM compliance procedures. These
tests demonstrated that the proposed quasi-static compliance test is
adequate for determining guard strength. The peak forces generated by
the guard in the quasi-static compliance tests and the full-scale crash
tests were approximately the same. Guard strength or peak force
capability is the primary factor in underride prevention. Guard energy
absorption characteristics determine the guard's ability to maintain
impact forces at survivable levels in the striking vehicle, as well as
the guard's resistance to structural failure.
The agency has decided to retain the quasi-static compliance test
for guard strength due to the greater complexity and cost of a dynamic
compliance test procedure. Although the guard's ability to resist PCI
at a specific impact speed will not be tested directly, the VRTC tests
show that dynamic guard performance can be accurately estimated from
the quasi-static compliance test results. Therefore, it is not
necessary to conduct expensive full-scale dynamic tests to attain most
of the benefits of dynamic testing.
Advocates also stated that British researchers assess the potential
fatality reduction effectiveness of stronger, energy absorbing guards
at 25 to 35 percent. This is about twice the current guard
effectiveness in Europe, according to the document cited by Advocates,
an opinion paper by P.F. Gloyns, et al., of Vehicle Safety Consultants,
Ltd., entitled ``Legislative Implications of Accident Experience in the
UK of Rear Under-Run Guards.'' The Gloyns paper does not quantify the
increase in guard strength or the magnitude of guard energy absorption
required to achieve the estimated increase in guard effectiveness. The
agency acknowledges that various combinations of guard strength and
energy absorption capability could increase the effectiveness of rear
impact guards. However, without more quantitative information, NHTSA
cannot address the guard effectiveness claims of Gloynes, et al.
It may be that energy absorbing rear underride guards, which were
referred to by CRASH and which are currently in use on one to two
percent of vehicles in Europe, are superior to a moderate strength,
fixed guard meeting the minimum performance requirements specified in
the rulemaking proposal. The agency notes that these European guards,
or guards with similar energy absorbing characteristics and design
features, would not be prohibited by NHTSA's proposed rule and will no
doubt be considered by the industry as a possible means of compliance,
just as they were in Europe.
The agency has tested one guard, the Quinton-Hazel rear impact
guard, which utilized pivoting vertical support members along with
telescoping hydraulic struts and coil springs. The guard demonstrated
excellent overall performance in a crash test conducted in 1979 by the
Texas Transportation Institute. The striking crash test vehicle was a
1,810 kg (4,000 lb) Chevrolet and the impact speed was 56 kph (35 mph).
The collision did not result in PCI, and all measured occupant
responses indicated that the potential for driver
[[Page 2011]]
and front passenger serious injuries was low. It is estimated that
similar guards would weigh about 1.33 to 3 times more and cost 3 times
more than a fixed, moderate strength guard designed to meet the
requirements of the SNPRM. In other words, it would cost $300-$350 and
have a mass of 136 kg (300 lbs) to 181 kg (400 lbs). Further, hydraulic
energy absorbing guards would be considerably more complex than fixed
guards that comply minimally with this rulemaking, and would require
periodic maintenance. It is NHTSA's understanding that there are
currently no guards in production in this country or in Europe that
utilize hydraulic or plastic energy absorbing, telescoping units. A
letter from one of the former manufacturers, Quinton-Hazel, indicates
that the market probably rejected them as too costly.
Nevertheless, in response to the comments recommending energy
absorbing guards, the agency has added a performance requirement for
guard energy absorption to the rule. The requirement does not include
design specifications such as pivoting vertical supports or telescoping
energy absorbing units. The agency is requiring that each guard absorb
a minimum amount of energy based on the forces and displacements
specified in the 1992 SNPRM. The same quasi-static compliance test
procedure proposed for strength testing will be used to determine
compliance with this new specification. The test for guard energy
absorption will be conducted only at the P3 location used for guard
strength testing. The minimum magnitude of guard energy absorption will
be 5,650 joules (4,170 foot-pounds), which is based on the force
required to comply with the strength test at the P3 test location and
the maximum displacement allowed for the guard to generate the force
(125 mm, or 5 in). The energy absorption test will require that the
guard's horizontal member undergo 125 mm (5 in) of displacement while
the force generated by the guard is recorded at least ten times per 25
mm. The magnitude of guard energy absorption at the P3 location is
sufficient to absorb about 12 percent of the total kinetic energy of a
48 kph (30 mph) centric collision with a 1,135 kg (2500 lb) vehicle.
This magnitude of guard energy absorption capability is also similar to
the amount recommended in several British research papers provided by
Advocates.
Several commenters, including consumer interest organizations and
trailer manufacturers, stated that the proposed rule would permit
overly ``rigid'' or non-yielding guards that would absorb little or no
crash energy. The commenters expressed concern that those guards would
be too stiff and would result in fatal driver and front vehicle
passenger head and chest injuries.
The agency has drafted the energy absorption requirement to address
these concerns. NHTSA recognizes the potential trade-off between
designs of underride guards that minimize occupant injury criteria
responses and those that provide the most protection from PCI. The
agency also recognizes that an increase in the level of rigidity from
the minimally compliant guard used in the VRTC tests is desirable, but
this should not be at the expense of energy absorption. On the other
hand, the agency does not want to restrict or dictate guard design by
specifying the rigidity of the guard. Therefore, to discourage overly
rigid guards, this rule requires that a minimum amount of the energy be
absorbed during the energy absorption test from permanent yielding, or
plastic deformation, of the guard. After the guard has reached the full
125 mm (5 in) of deformation, the load is reduced and any elastic
``rebound'' of the guard is measured until the load is zero. The
elastic component of the energy that is returned by the guard is not
included in the calculation of total energy absorbed by the guard. This
method gives guard designers flexibility to select guard material
properties and frame member spatial configuration.
Some commenters observed that the test procedures proposed in the
SNPRM precluded the use of hydraulic energy absorbing guards. Mr. John
Tomassoni stated that the 125 mm (5 in) displacement maximum allowed in
the strength test would allow only passive structures such as steel
struts designed to bend on impact. This is because active energy
absorbing struts that are hydraulic (analogous to a vehicle shock
absorber) are velocity sensitive. With the slow application of force
during the quasi-static test, the hydraulic fluid units would develop
almost no resistance. He recommended adding a ``bottoming'' provision
to allow static testing after hydraulic systems have reached full
stroke.
NHTSA agrees that quasi-static test procedures are inappropriate
for hydraulic guards, or any other type of velocity sensitive guard
(although NHTSA is unaware of any non-hydraulic guards that are
velocity sensitive). A dynamic test would be required to assess their
energy-absorbing capabilities by supplying the sudden onset of force
their energy absorbing units require to generate resistance. Because
the agency does not want to discourage the use of these advanced guard
designs by requiring expensive dynamic tests, and because these guards
typically have excellent energy absorbing capabilities, the final rule
excludes these guards from the energy absorption requirements.
There are also problems with subjecting velocity sensitive guards
to the strength requirement. However, complete exclusion of those
guards from the performance requirements would be inappropriate.
Accordingly, the agency has modified the test procedures to allow
velocity sensitive guards to be tested for compliance with the strength
requirement. The agency is concerned that, if the hydraulic energy
absorbing units do not operate properly, the guard will not generate
significant resistance and energy absorption. NHTSA wants to assure
that the guard has enough residual strength, even without the energy
absorbing units, to meet the same strength requirements as other
guards. Therefore, velocity sensitive energy absorbing guards will be
tested by slowly compressing the energy absorbing units to the full
extent of their designed travel or 610 mm (24 in), whichever occurs
first. This will allow the frame of the guard itself to generate
resistance, rather than having the piston simply compress the hydraulic
shock absorbers.
4. Vertical Cross-sectional Height of Horizontal Cross-member
The SNPRM proposed a minimum vertical cross sectional height of 100
mm (4 in) across the entire width of the guard's horizontal cross-
member. Advocates stated in its comment that the guard must be at least
205 mm (8 in), and preferably 305 mm (12 in), high to better manage the
loading impact forces and assure full engagement of the vehicle front
end. In contrast, the Truck Trailer Manufacturers Association (TTMA)
suggested reducing the requirement, urging that the guard be only 50 mm
(2 in) high because that is all that is required for adequate strength.
It asserted that requiring greater vertical cross section height just
adds unnecessary weight and cost to the guards.
NHTSA agrees with Advocates' position that a higher vertical cross
section has the potential to better distribute the impact forces, but
this does not mean that the proposed 100 mm (4 in) height is
insufficient. The 100 mm (4 in) height would be inferior if it sheared
or ``cut'' through the front of the striking vehicle, thus allowing
forward vehicle motion without much energy absorption due to the low
magnitude of
[[Page 2012]]
force generated by the guard. A guard should cause the vehicle to
absorb energy by crushing, rather than shearing through, frontal
vehicle structural components. Shearing through did not occur in the
agency's testing with a 100 mm (4 in) high guard horizontal member.
None of the crash tests conducted pursuant to this rulemaking resulted
in significant shearing of the passenger vehicle's frontal structure
(above the 560 mm (22 in) high guard). The crash tests show that the
100 mm (4 in) profile of the guard horizontal member resulted in
adequate engagement of the car's front end and is harmonized with the
guard specified in ECE Regulation 58. Moreover, a 205 mm (8 in) high
profile may require heavier and more expensive guards. Finally, the
agency notes that 100 mm (4 in) is only a minimum height, so guard
manufacturers are free to manufacture the guards that Advocates
recommends. Accordingly, the agency concludes that a higher vertical
cross sectional height requirement is unnecessary.
NHTSA also disagrees with TTMA's position that a 50 mm (2 in)
vertical cross sectional height would be appropriate. The TTMA did not
provide any data to support its assertion that the strength should be
adequate. Even if the 50 mm (2 in) height were sufficient for strength
purposes, it would have a greater tendency to shear into the front of
the passenger vehicle instead of crushing it. This would result in a
reduction of energy absorption by the guard and an increase of the
striking vehicle damage in low speed crashes of 16 to 24 kph (10 to 15
mph). Accordingly, the agency has decided to retain the 100 mm (4 in)
cross sectional vertical height requirement in the final rule.
5. Shape of the Horizontal Cross-member
Some commenters stated that NHTSA should require the guards to have
blunted or rounded ends. The Florida Department of Transportation,
based on visual evaluations of the installed guard, stated that the
requirement that the guard extend to within 100 mm (4 in) of the side
of the vehicle would make it a dangerous ``hook'' for adjacent
vehicles, especially during sharp turns of the trailer. It suggested
requiring a ``U'' shaped guard, similar to one used by some carriers
which is attached at either end to the underside or rear of the
vehicle. It thought that the ends on these guards could be located
further inboard. The TTMA had a similar suggestion, proposing that
NHTSA allow (but not require) guards with rounded corners, to lessen
the hooking potential when the sliding tandem is positioned forward.
The TTMA suggested that the rule be modified to allow such guards to
begin curving at a point 255 mm (10 in) inboard of the edges of the
vehicle, while retaining the 100 mm (4 in) requirement for straight
guards.
NHTSA agrees that there is some potential for hooking the guard on
the fenders and wheel wells of adjacent passenger vehicles when the
rear end of the trailer swings out laterally during a sharp turn. This
phenomenon would be accentuated when the rear wheels on a sliding
tandem are positioned forward. The rear wheels are generally positioned
forward to give the trailer greater maneuverability, so it is likely
that trailers in this configuration will be making sharp turns.
On the other hand, rounded or U-shaped guards would be more
expensive to manufacture and would weigh more. Moreover, rounded
corners offer very limited potential added value on roadways where
sharp turns are infrequent, such as on the interstate highways, which
are heavily traveled by trailers. Therefore, while the agency wants to
allow guards with rounded ends for operations where they are desired,
NHTSA does not think it is necessary or even appropriate to require
them.
The commenters referred to rounded guard ends that curve upward,
but a rounded end that curves forward could also be useful. It would
serve the purpose of making hooking less likely because the guard end
would sweep through a smaller arc and present a less pointed profile to
adjacent passenger vehicles. Moreover, forward-curving guards could
slightly enhance guard effectiveness if a passenger vehicle strikes the
trailer in the rear corner at an angle. However, forward-curving guard
ends might interfere with the rear wheels if a sliding tandem were
moved to the rearmost position.
NHTSA notes that the SNPRM would not prohibit guards with rounded
ends, but its configuration requirements would have restricted their
curves to a 100 mm (4 in) radius of curvature. To minimize hooking
potential and property damage in some applications, the final rule
adopts the TTMA's suggestion and allows a guard with rounded ends to
begin curving 255 mm (10 in) inboard of the side extremity of the
trailer. This will allow a radius of curvature of 150 mm (6 in), or 255
mm (10 in) if the guard end extends all the way to the side
extremities. To make the same allowances for forward-curving guards,
should guard manufacturers want to produce them, NHTSA is allowing
those guards to begin curving forward 255 mm (10 in) inboard of the
side extremities, even if the guards are already mounted as far forward
as possible--305 mm (12 in) forward of the rear extremity.
6. Guard Attachment
The SNPRM did not specify a particular guard attachment method. To
assure an adequate interface between the guard and the trailer, the
SNPRM proposed to require that the guard be attached to the trailer
chassis in accordance with the instructions provided by the guard
manufacturer.
Several commenters thought the SNPRM inadequately addressed the
issue of guard attachment and discussed the merits of certain guard
designs. Citing a study by Vehicle Safety Consultants (VSC) Ltd.,
Advocates stated that attaching the horizontal member of the guard to
the vehicle with vertical members is not ideal because the guard tends
to pivot forward and up if it is struck from the rear by a passenger
vehicle and fails. It said that the vertical members then form an
inverse ramp, thus aggravating any underride tendency by pushing the
passenger vehicle down and the trailer up. To solve this problem,
Advocates appears to recommend either guards with diagonal hydraulic
struts or the use of hinged, pivoting energy absorbing guards that can
fold up for rail or other intermodal transportation. IIHS also believed
a diagonal strut would improve guard strength without adding weight and
would make it more likely that the guard will move downward as it
deforms, thus helping to stop the passenger vehicle.
The agency agrees with IIHS and Advocates that designs employing
diagonal struts are strong yet light, but believes it would be
inappropriate to require such designs. There is no evidence that only
designs with diagonal struts perform adequately. To the contrary, the
design used in the VRTC tests did not have diagonal struts and
performed acceptably. Diagonal struts may also be impracticable in some
cases, due to trailer construction and use.
Likewise, while the pivoting, fold-away design that Advocates
recommended has obvious practical advantages in some circumstances, the
agency does not believe that there is any necessity for mandating that
all guards incorporate that design. Such designs would be unneeded by
many trailer operators since most trailers do not travel by ship or
train. If trailer operators need fold-away guards for intermodal
transportation or other
[[Page 2013]]
operational environments, they may specify such guards when ordering
new trailers.
NHTSA believes that specifying a particular attachment
configuration, as suggested by Advocates and IIHS, would unnecessarily
restrict design flexibility on the part of guard manufacturers.
Adequate performance may be achieved by a variety of attachment
methods. Moreover, it is impracticable for NHTSA to attempt to
anticipate all the factors that may go into the choice of attachment
method, given the variety of possible guard and trailer configurations.
The agency's decision not to specify a particular attachment method
leaves the guard manufacturers free to choose an appropriate design.
Some commenters had conflicting impressions that the SNPRM required
a particular attachment method. Transamerica Leasing interprets the
SNPRM's reference to ``attachment hardware'' as meaning that the
proposed rule contemplates only bolt-on guards. It thinks that guards
that are welded on should also be allowed. In contrast, Advocates
suggested that the SNPRM requires guards with vertical supports for the
horizontal member and welded steel construction.
No specific attachment method was proposed in the SNPRM. Nothing in
the SNPRM nor in this final rule requires vertical supports or welded
construction. Similarly, the agency did not intend its references to
attachment hardware in the SNPRM to imply that only bolt-on guards are
permitted. The agency's intent was to require that any necessary
attachment hardware be included with the guard when a guard
manufacturer sells the guard to a trailer manufacturer if the guard
manufacturer's method of attachment involves attachment hardware, as in
the case of bolt-on guards. Weld-on guards are also permitted. However,
if the guard manufacturer's installation instructions do not adequately
specify the welding procedures, welds of poor quality could break in
NHTSA's compliance testing. Weld strength could probably be assured
through incorporating by reference welding industry standard practices.
Some commenters believed that the guard-trailer interface was
inadequately addressed by the SNPRM. IIHS noted that the SNPRM proposed
no minimum strength for the chassis or the attachment method, and
concluded that the attachment may fail before the guard. It stated that
NHTSA's static tests showed that the trailer frame rails failed without
a doubler plate and that, even with a doubler plate, the flange welds
failed in dynamic tests. It also believed that NHTSA should require
installation instructions that are specific to each make and model of
trailer. IIHS reiterated these comments in a September 16, 1994 letter
that pointed to failures of the guard attachment hardware and trailer
structures resulting in PCI in two of the VRTC crash tests. IIHS urged
NHTSA to either require minimum strength levels for the guard
attachment hardware and frame rail or require that the guard be tested
together with the type of trailer frame rail to which it would be
attached.
Mr. John Tomassoni suggested that the preamble to this rule should
encourage manufacturers to install guards with due care so that the
attachment is as good as the guard. He said that the trailer frame is
the ``weak link'' in crashes today, and that adding ``doubler plates''
to trailer frame members helps to maintain the integrity of the
attachment in a crash.
NHTSA's test results show the importance of considering the
strength of the attachment point when designing a guard. The agency
does not at this time believe that it is necessary to define strength
requirements for the chassis or the attachment hardware because the
necessary strength is dependent on the design of the guard. For
example, a guard that is attached to the rear of the frame rail with
two vertical supports (i.e., the commonly used cantilever design used
in the VRTC tests and on most trailers) would require a stronger
attachment site and attachment hardware than a guard with many
attachment points or with diagonal struts. Therefore, without knowing
the design of the guard, NHTSA cannot readily specify minimum strengths
for the trailer frame or the attachment hardware, as suggested by IIHS.
However, the guard manufacturer must consider frame and hardware
strength in order to have a basis for certifying the guard for use on
the types of vehicles specified in the installation instructions. NHTSA
agrees with Mr. Tomassoni that, if a cantilever design is used, guard
manufacturers should consider doubler plates or other appropriate frame
reinforcement to prevent frame failure. NHTSA does not want to require
such features, however, because a different attachment design or a
sturdier trailer frame may eliminate the need for reinforcement. It is
not a requirement of this rule that guard manufacturers specify frame
strength or reinforcement procedures in the installation instructions.
However, as a practical matter, to have a basis for certification, they
must consider frame strength using testing, engineering analysis, or
both, to be assured that the guard attachment is appropriate for the
types of vehicles specified in those instructions.
The VRTC test experience illustrates why guard manufacturers should
appropriately design the strength of the attachment. In one case,
attachment bolts which were marginally weaker than those used in the
quasi-static test sheared under the sudden onset of force in the
dynamic test. In another case, the proximity of the guard to the rear
edge of the frame rail resulted in tearing of the trailer frame rail
webbing. In each case, the guard itself was not really exercised
because the attachment failed. In each case, simple modifications
solved the problem. The importance of careful attachment hardware
material selection and attachment design cannot be overemphasized.
Although guard manufacturers are free to issue separate
instructions for each specific make and model of trailer, as IIHS
recommends, it is not necessary for NHTSA to require such instructions.
An efficient way to specify trailer type would be to list specific
make/model combinations. However, as long as the instructions are
adequate to identify which vehicles are appropriate for the
installation of the guard, specification of the make and model of the
trailer may not be necessary. One reasonable alternative for a guard
manufacturer with a very adaptable guard design is to show in its
instructions the types of trailer, types of chassis configurations, and
frame strengths that are necessary to the functioning of that
particular guard. For example, the guard manufacturer might specify
that any flatbed or van trailer with longitudinal frame rails extending
to within 305 mm (12 in) of the rear, spaced between 760 mm and 1,270
mm (30 and 50 in) apart, and with
FR Doc. 96-682 Federal Motor Vehicle Safety Standards Rear Impact Guards; Rear Impact Protection
the bottom of the frame rails
configured as a horizontal surface at least 100 mm (4 in) wide,
composed of steel that is at least 6 mm (1/4 of an inch) thick, would
be an appropriate trailer for mounting the guard.
Some commenters believed that defining ``chassis'' as the ``load
supporting structure of a motor vehicle'' was too restrictive or
otherwise inadequate. NSWMA asked NHTSA to modify S5.3.2 of the vehicle
standard to allow vehicle manufacturers with ``unique design
considerations'' to attach the underride guard ``to a load supporting
structure of the vehicle or body, or through other means that provide
equivalent protection.'' It believed that this change is necessary to
take into account body designs that do not use a conventional chassis
frame.
[[Page 2014]]
Mr. John Tomassoni also suggested that NHTSA further define the term
``load supporting structure'' because the longitudinal frame members
don't extend all the way to the rear end of some trailers.
Although NSWMA did not provide any specifics on its vehicles, NHTSA
agrees that there may be some trailers that do not have adequate
chassis structure, in terms of a frame structure, to support a
conventionally designed rear impact guard. However, no change to the
requirements is necessary. Although the frame components are the
obvious attachment point in the case of most trailers, attachment to
this chassis member is not required by this rule. In certain cases, an
unconventional guard design that is attached to other parts of the
chassis may be necessary. In rare cases, custom-designed guards or even
extension of the trailer chassis may be necessary to mount the guard.
The TTMA suggested changing the installation requirements in S5.3
to apply to ``guards that are produced or modified and installed by a
vehicle manufacturer * * *,'' so that a trailer manufacturer can modify
stock guards to fit its particular trailers. It assumes that the guard
manufacturer is unlikely to provide installation instructions for the
wide variety of trailer configurations. It reasons that, since the
trailer manufacturer has to certify that the trailer is in compliance
with all Federal motor vehicle safety standards anyway, why not let it
modify the guard?
Vehicle manufacturers are allowed to modify purchased guards to
suit their own trailers. There may be minor modifications to widely
available guard designs that will make them suitable for trailers for
which they were not designed. However, if a vehicle manufacturer
modifies the guard in a way not contemplated by the instructions
provided by the guard manufacturer, that vehicle manufacturer becomes a
guard manufacturer. The vehicle manufacturer may no longer rely on the
certification of the original guard manufacturer, because the original
manufacturer presumably did not intend its guards to be so modified. As
a guard manufacturer, the vehicle manufacturer would have to certify
that the guard, as modified, complies with the equipment standard.
Also, the vehicle manufacturer would have to affix its own
certification label and prepare modified installation procedures. The
installation procedures are necessary both to ensure that the guards
are modified and installed the same way each time, and to allow NHTSA
to duplicate the modification when conducting compliance testing.
The original guard manufacturer's installation instructions may
provide for some flexibility in the installation. For example, they may
specify that a certain kind of spacer may be used to achieve a proper
fit, or that a doubler plate be installed if the thickness of the
chassis is below a certain amount. However, NHTSA may employ any of the
installation options provided to the vehicle manufacturer when
subjecting a guard to compliance testing. Any test failure of a
properly installed guard will represent noncompliance by the guard
manufacturer.
7. Compliance Test Requirements and Procedures
a. Dynamic Versus Static Testing. Several commenters, including
Advocates, urged that NHTSA require that the guards be tested
dynamically, that is, by crashing cars into the rear of trailers
equipped with the rear impact guard. The agency agrees that dynamic
testing more closely simulates the conditions in which underride
crashes occur in the real world than the quasi-static testing does.
However, dynamic testing is also far more expensive. To test one guard/
trailer combination with a dynamic test for strength and energy
absorption would entail total test costs of approximately $30,000.
Dynamic tests would be so expensive that specifying such testing of
trailers could raise practicability concerns regarding those trailer
manufacturers that are small businesses. A requirement based on such
tests would place these small manufacturers, which are numerous, at a
competitive disadvantage, relative to larger companies, and would
represent a significant financial burden.
Quasi-static tests provide similar information far more
economically than dynamic tests. The VRTC research project demonstrated
that quasi-static testing generates similar forces to those generated
in an actual crash test, albeit at a slower rate. The project also
demonstrated that guards only ten percent stronger than the minimum
level of strength necessary to pass quasi-static test requirements
performed adequately in dynamic tests. The quasi-static compliance test
for a single guard at VRTC cost only about $3,500. Based on the
foregoing and the discussion in the section above on separate equipment
and vehicle standards, the agency believes that dynamic testing of
underride guards is unnecessary and overly expensive. NHTSA further
believes that quasi-static testing is adequate to ensure the
manufacture of safe and effective rear impact guards and that it will
do so at a far lower cost. Therefore, the quasi-static testing
procedure has been retained in the final rule.
Some commenters commented on the definition of ``rigid test
fixture.'' The TTMA assumes that a trailer can be used as a rigid test
fixture, and other commenters urged that testing be permitted on
trailers. The Institute for Injury Reduction commented that the terms
``sufficiently large,'' ``appropriately configured,'' and ``no
significant amount of energy'' in the definition of rigid test fixture
are vague, imprecise, ambiguous and in no way ``stated in objective
terms.''
NHTSA notes that a trailer may meet the equipment standard's
definition of a rigid test fixture, but because of slight flexing of
the vehicle structure, in other cases, they may not meet this
definition. NHTSA is persuaded that the benefits of testing on trailers
outweigh the possible effect on testing repeatability and does not want
to discourage testing on trailers by conducting its compliance testing
only on a rigid test fixture. The TTMA comment indicates that, although
it is not required, some vehicle manufacturers will conduct quasi-
static guard testing on trailers or trailer portions. NHTSA sees no
reason why this should not serve as a basis for manufacturer
certification even if the trailer is not a rigid test fixture. The use
of a trailer would be desirable because there is nothing more
``appropriately configured'' for guard mounting than the actual trailer
the guard will be installed on and because the structural integrity of
the trailer chassis will also be tested. However, caution must be
exercised to assure that the trailer is secured so that it does not
move during the test. If the guard is mounted to a trailer, the trailer
chassis will be secured so that there is no rotation or translation of
the trailer tires during the tests for guard strength and energy
absorption.
When conducting compliance testing, the agency will give the guard
manufacturer the option of designating testing on a rigid test fixture
or on a trailer. NHTSA notes that it may test on any trailer described
as appropriate in the guard manufacturer's installation instructions,
even if the guard manufacturer based its certification for that trailer
not on actual testing but on engineering analysis.
NHTSA agrees with the Institute for Injury Reduction that the
definition of ``rigid test fixture'' needs a slight modification. The
reference to size has been eliminated because size is not really as
important as rigidity. However, it is not necessary to define the
amount
[[Page 2015]]
of energy the fixture can absorb, because, like the ``fixed collision
barrier'' defined in 49 CFR 571.3, the guards will be expected to pass
the test no matter how little energy is absorbed by the fixture. Also,
the term ``appropriately configured'' has been clarified. There is no
way to precisely define how the test fixture will have to be configured
because that will depend on the design of the guard being tested. There
may be a number of appropriate configurations. As long as the guard can
be attached to the test fixture in the same way that the guard
manufacturer's instructions specifies the guard is to be attached to
the vehicle, without either modifying the guard or adding adaptive
parts to obtain a better fit between the guard and the fixture in a way
that is inconsistent with the instructions, the test fixture is
appropriately configured.
The agency had modified the strength test procedures to promote
ease of testing. Paragraph (b) of S6.5 now requires the application of
the force to the loading device to achieve a constant deflection rate,
rather than a constant increase in force, as proposed in the SNPRM. In
other words, rather than increasing the force at a constant rate, the
deflection rate is required to be held constant and the force will vary
depending on the resistance offered by the guard. Specification of a
deflection rate procedure is consistent with existing agency practice.
For example, the quasi-static compliance tests in S4(d)-(e) of Standard
No. 214, Side Impact Protection and S6.3 of Standard No. 216, Roof
Crush Resistance utilize this technique for force application.
b. Test Sites. Several commenters recommended changes in the
language 'specifying the test sites to be used during the compliance
tests. Mr. John Tomassoni recommended defining the P1 test site such
that the ``3/8 L'' lateral dimension (see Figure 1) is defined relative
to the side extremities of the trailer, as opposed to the center of the
guard. He suggested that this change would account for newer 2,600 mm
(102 in) wide trailers which have a 1,270 mm (50 in) longitudinal frame
rail span, or for any other width trailer. This approach, however, is
inconsistent with a separate equipment standard because the exact width
of the trailer may not be known at the time of testing. Moreover, the
requirement that guards extend to within 100 mm (4 in) of the side of
the trailer should assure that the P1 site will be sufficiently
outboard on the trailer, because wider guards will be required for
wider trailers, and the P1 location is dependent upon guard width.
Mr. Tomassoni also suggested that S5.2.2 and Figure 1 should be
modified to specify that the vertical center of force should not be
more than 560 mm (22 in) from the ground, rather than at ``the
horizontal plane that passes through the vertical center of the
horizontal member,'' as proposed in the SNPRM. Mr. Tomassoni indicates
that a guard with a horizontal member of cross sectional vertical
height greater than 100 mm (4 in) would result in higher test points.
Higher test points would yield test results that are not indicative of
the guard's effective impact strength near the bottom edge, where force
is likely to be concentrated in real world crashes. Although it is not
possible to define the test points relative to the ground because the
guard is not required to be mounted on the vehicle during testing,
NHTSA has modified the rule to define the test points relative to the
bottom of the guard itself. This should assure adequate strength and
energy absorption at the level of likely impact force.
Mr. John Kourik pointed out that the P1 test site was defined
incorrectly in the SNPRM, although it was correctly portrayed in Figure
1. The text of S5.2.2(a) (redesignated S6.4(a) in this rule) read ``3/8
of the transverse horizontal distance * * * between the * * * vertical
centerline of the guard [and] and the outermost edge * * * of the
guard.'' The P1 definition has been corrected to reflect that the point
is located 3/8 of the total guard width outboard of the centerline. Mr.
Kourik also suggested that the four asterisks showing the P3 test sites
in Figure 1 be reduced to two asterisks. NHTSA has modified the figure
to make it clearer that there is only one P3 test site on each side of
the guard, but that the location of the site is within a range from the
centerline.
The TTMA and other commenters suggested broadening the range of
locations of the P3 test site to allow it to be ``any point selected by
the manufacturer * * * between 14 and 25 [rather than 20] inches
outboard'' of the guard centerline. Most new trailers are wider than in
the past with a frame rail span of 127 cm (50 in), and the frame rail
is a likely chassis structure for guard attachment. TTMA wanted NHTSA
to conduct the more demanding 100 kN (22,480 lb) P3 test near the
attachment point of the guard's supports. This was NHTSA's general
objective in specifying the P3 test location, and this objective is
furthered by accommodating TTMA's request in part. The rule has been
modified to provide that P3 is located 355 to 635 mm (14 to 25 in) from
the guard centerline. However, NHTSA will select any point within the
range for compliance testing, rather than permit a manufacturer to
specify a single test site within the 355 to 635 mm (14 to 25 in)
range.
c. Labeling and Certification. The TTMA suggested that affixing a
certification label is redundant in those instances in which the guard
is manufactured by the vehicle manufacturer because the vehicle
manufacturer has to certify compliance with all the safety standards
anyway. Although this is true, allowing some guard manufacturers to
omit the label would be impractical from an enforcement standpoint,
because vehicle inspectors would not be able to tell whether the guard
was certified by the guard/vehicle manufacturer as part of the vehicle
or whether the vehicle manufacturer installed a guard purchased from a
guard manufacturer who neglected to make a required certification.
Moreover, NHTSA does not believe that affixing the label is a
significant burden. Therefore, the final rule retains the requirement
of a separate guard certification for all guards.
The TTMA also recommended that the label be affixed to the roadside
vertical supporting member of the guard, instead of the center of the
horizontal guard member, to prevent damage and abuse. NHTSA believes
that docking and other routine operations could damage the label if
affixed in the proposed location. Therefore, the rule has been modified
to require the label to be affixed in a less vulnerable location. The
rule now requires the certification label to be placed on the
forwardmost surface of the horizontal member of the guard at an offset
location 305 mm (12 in) inboard of the right side end of the guard.
The TTMA also suggested changes in the label format. Specifically,
it recommended that the letters and numbers should be 2.5 mm (\3/32\ of
an inch) high, which is the same as the trailer certification label,
rather than 13 mm (\1/2\ inch) high as proposed in the SNPRM. TTMA also
asked that NHTSA require that the label be furnished to the vehicle
manufacturer with a protective cover that can be removed after
painting.
The agency believes that the smaller letters suggested by TTMA are
sufficiently legible for inspection purposes, and has changed the rule
to adopt this suggestion. However, market forces should determine
whether protective covers are provided. Vehicle manufacturers will
probably cover the labels themselves when painting to avoid having
their guard confused with a noncomplying guard.
[[Page 2016]]
C. Standard for Vehicles
1. Configuration Issues
a. Maximum Guard Ground Clearance. One of the major issues
addressed by nearly all the commenters was the maximum ground clearance
of the horizontal member of the rear impact guard. The SNPRM proposed a
maximum guard height of 560 mm (22 in). Consumer safety groups and
private citizens generally favored lowering the guard to within 405 or
460 mm (16 or 18 in) of the ground in the belief that doing so would
provide more complete protection for low profile vehicles such as sub-
compact and mini-compact passenger cars. Since the real issue is not
ground clearance, but guard height relative to the front structure of
colliding passenger vehicles, some of these commenters addressed
related issues such as the height of the engine block, hood, and cowl
(windshield base) of those vehicles. Except for the consumer safety
groups and a few private citizens, few provided a rationale or any data
to support a lower guard height. The organizations and private
companies related to the trucking industry generally supported a 560 mm
(22 in) height, but offered a variety of reasons not to lower the guard
further. Most of their concerns related to operational difficulties
that would be caused by lower guard heights.
The consumer safety groups focussed their comments on guard
effectiveness. Advocates advanced several reasons for reducing the
guard height in order to achieve better engagement between the guard
and the engine block, bumper, and tires of colliding passenger
vehicles. Advocates stated that lower engine block heights on modern
automobiles, combined with the lowering of the passenger vehicle's
front end due to suspension compression during severe braking, will
result in the rear impact guard passing over the engine and engaging
only the hood and fenders of most cars. In addition to the front end
lowering caused by braking, Advocates claim that additional frontal
lowering will occur on downgrades due to forward weight transfer.
Citing a random survey it made of subcompact cars and urging NHTSA to
conduct a more thorough survey, it said that no engine block is higher
than 560 mm (22 in) above the ground and bumpers are in the 430 to 535
mm (17 to 21 in) range. It stated that earlier NHTSA data using the
average hood height above the ground was misleading because its
``casual'' survey of subcompact hood front edges showed none higher
than 635 mm (25 in). It interprets these data to mean that only fender
top and hood sheet metal would be engaged, and concluded that air bag
sensors probably will not be triggered. Advocates also maintains that,
even if the top of the engine were engaged, the underride guard will
cause the blocks of transversely-mounted engines used in most
subcompacts to rotate (roll) rearward, crushing the car occupant's
legs. Based on British research, Advocates recommends a guard height of
no more than 405 mm (16 in), and ideally 305 mm (12 in). Both Advocates
and Mr. Byron Bloch, of Auto Safety Design, cited the 1980 study by
Dynamic Science which concluded that the guard height should not exceed
510 mm (20 in). Mr. Bloch recommended a height of 405 to 460 mm (16 to
18 in). CRASH solicited many private citizens to send in petitions,
letters, and pre-printed cards stating that the guard height should be
set at 405 mm (16 in), but none provided supporting technical
information.
The IIHS, citing the same studies as Advocates, urged NHTSA to
adopt a maximum ground clearance of 460 mm (18 in). IIHS is primarily
concerned that a 560 mm (22 in) high guard will override car bumpers,
thus bypassing much of the potential front end energy absorption. Other
concerns expressed by IIHS were late air bag activation, braking-
induced bumper depression of two to 100 mm (4 in) or more, and possible
lifting of the rear end of the trailer as the car wedges under the
guard. IIHS implied that a 460 mm (18 in) requirement is practical,
noting that one U.S. freight carrier reportedly sets its guards at 495
mm (19.5 in).
IIHS believes NHTSA's estimate that trailers probably sit 50 to 75
mm (2 to 3 in) lower when loaded is wrong. IIHS tests on 11 trailers
showed the most heavily loaded trailers showed only 38 to 57 mm (1.5 to
2.25 in) of depression with an average of 28 mm (1.1 in). Four of the
trailers even raised in the rear, indicating that load distribution is
probably a factor in determining rear extremity compression height.
IIHS believes that modern air suspensions compensate for loading
depression. Even if loaded trailers are depressed, it believes that
passenger vehicles should be protected from partially loaded or empty
trailers, which it says are involved in 29 percent of fatal crashes.
Therefore, IIHS urges NHTSA to assume no depression of the trailer bed
due to loading.
Mr. John Tomassoni commented that a lower guard would be better
because engine block resistance to a rigid guard doesn't start until
460 to 610 mm (18 to 24 in) behind the bumper. However, Mr. Tomassoni
concluded that a 560 mm (22 in) requirement is a significant
improvement over the existing 760 mm (30 in) height, and one that can
be implemented with little or no difficulty. He notes that trailers 16
meters (m) (53 feet (ft)) or longer are currently being equipped with
560 mm (22 in) high guards.
Some municipalities sent comments in favor of lower guard heights.
For example, the City of Durham, North Carolina sent an unsigned
resolution that the height be set at no more than 460 mm (18 in). Its
Transportation Advisory Committee submitted a similar comment. About
2,300 private citizens recommended a guard height of 405 mm (16 in).
The industry groups focussed their comments relating to guard
height on operational restrictions that would result from the reduced
``angle of departure'' that lower ground clearance would cause. The
angle of departure is basically the acute angle formed by the ground
and a line connecting the point where the rear tires meet the ground
with the bottom of the guard. The lower the guard, and the further
forward the rear wheels are positioned relative to the guard, the
smaller the departure angle is, and therefore the more likely the guard
is to scrape or ``hang'' on the ground when the trailer mounts a steep
incline. The problem is exacerbated for the longer 16 m (53 ft)
trailers being used today, because they have correspondingly greater
rear overhangs, and thus smaller departure angles. Many trailers have
their rear wheels mounted on sliding tandems, or bogeys, that can be
moved forward or rearward on the trailer's frame, depending on the load
and the need for maneuverability. The further forward the wheels are,
the more maneuverable the trailer is and the more the rear end of the
trailer ``swings out'' in turns.
Changes in the industry since 1981 seem to have relieved the
concerns of the rail industry that the proposed ground clearance of 560
mm (22 in) would interfere with rail car loading and unloading
operations, in which trailers are driven up steep ``circus ramps'' onto
flat cars. The Association of American Railroads (AAR) and TTX Company,
a trailer-on-flat-car operator, opposed the 1981 NPRM, but now support
the 560 mm (22 in) requirement because there are few ``circus'' ramps
still operating. However, they caution that a significantly lower
height would interfere with intermodal flatcar operations. TTX asserted
that such a reduction in guard clearance could interfere with lift-on
and lift-off operations for one type of railroad car (TTAX ``spin
cars'') handling 16 m (53
[[Page 2017]]
ft) trailers. It added that there must be extra guard clearance to
account for loading depression and bouncing. To illustrate the
potential economic impact of lower guard clearance, TTX stated that
there are 2,300 such cars costing $340 million, which are only 1.8
years old on average. TTX estimates that lowering the guard clearance
could eliminate 75 percent of the capacity for 14 railroads.
In contrast, the 560 mm (22 in) guard height is still considered
low by the portion of the industry that transports trailers in ships.
Transamerica Leasing, Inc. recommends that NHTSA conduct further study
before issuing this rule because a 560 mm (22 in) high guard would
scrape loading ramps during roll-on/roll-off ship loading when the
wheels are positioned forward to provide the maneuverability necessary
in ships. The American Trucking Associations (ATA) supports the 560 mm
(22 in) proposed ground clearance, but stated that any lower clearance
would be unacceptable. It calculates that a loaded trailer driven onto
a barge or vessel, which it says have departure angles as high as 15
degrees, would drag the guard if the rear axle is 190 cm (74.5 in) or
more forward of the guard. It said that many states have restrictions
on trailer kingpin-to-rear- axle distances that result in a 245 to 275
cm (96 to 108 in) rear-wheel-to-guard distance on 16 m (53 ft)
trailers. It concludes that these trailers' guards would hang on such
vessel loading ramps or on any 20 percent grade. It finds the 560 mm
(22 in) clearance acceptable only because 16 m (53 ft) trailers are
rarely used on vessels, and because 20 percent grades are rare. The
Truck Maintenance Council of the ATA recommends a guard clearance of
560 mm (22 in) for general freight equipment. According to Mr. Robert
Crail, a trailer designer and manufacturer, the proposed 560 mm (22 in)
height is acceptable because, although many trailers are still driven
into ships rather than being crane loaded, vessel owners can adjust
their ramps, and because it is compatible with the dimensions
established by the trucking industry and loading dock restraint device
manufacturers. Ford Motor Company had no specific data, but is
concerned that 560 mm (22 in) may be inadequate ground clearance for
loading and unloading of long trailers in trains or ships. Ford also
noted that some single unit trucks are equipped with kneel-down air
suspensions to facilitate loading and unloading, which Ford says are
incompatible with a 560 mm (22 in) high guard.
Even outside the context of intermodal loading and unloading
operations, some commenters were concerned about the reduced departure
angle that a 560 mm (22 in) high guard would create. The National Solid
Waste Management Association (NSWMA) emphasized the importance of
maneuverability for sanitation trucks in negotiating driveways and
backing into tight places. It estimated that a 560 mm (22 in) guard
mounted flush with the rear extremity of a sanitation truck would have
a departure angle of only 9 degrees, which it says is typical of many
driveway entrances. Although it appears that many of the trucks NSWMA
is concerned with are single unit trucks that are excluded from the
rule, NSWMA is also concerned about the guards getting hung up on the
ground when the trailers are taken off-road onto the soft, unpaved,
uneven roads at landfills and construction sites.
One additional industry concern is engagement of the guard with
``dock locks.'' When trailers back up to loading docks, these devices
engage the underride guard to keep the trailer from moving away from
the loading docks as forklifts repeatedly travel across the rear door
sill. Transamerica Leasing believes that the 560 mm (22 in) high guards
may interfere with ``dock lock'' engagement arms. Yellow Freight System
states that thousands of dock locks have been installed according to
the 560 mm (22 in) guard height recommended by the Maintenance Council
of the ATA, and urges NHTSA not to change now. However, Rite Hite
Corporation, a manufacturer of dock locks, submitted information
indicating that dock locks can accommodate guard heights between 355
and 760 mm (14 and 30 in).
One industry group endorsed a lower guard height. The AFL-CIO
Teamsters Union suggested that NHTSA could require a ground clearance
lower than 560 mm (22 in) because auto carriers and UPS trailer fleets
have reported no problems with lower guard heights. It also observed
that 16 m (53 ft) trailers in many states have no problem using 560 mm
(22 in) guards.
The question of proper guard ground clearance involves a balancing
of the effectiveness of the guard in providing protection against PCI
against the cost and operational restrictions that lower guard heights
could impose on the industry.
The effectiveness of the guards is a primary consideration.
Regarding Advocates' survey of bumper and hood heights on compact and
subcompact cars, NHTSA conducted a similar survey of engine block
height and front end profile of a sample of 40 vehicles. The results of
this survey were summarized in the agency's Truck Underride Report to
Congress, dated November, 1993. The NHTSA survey showed that the height
of the top of the engine block was between 660 and 790 mm (26 and 31
in), with an average height of 840 mm (28 in). The hood leading edge in
NHTSA's survey averaged about 685 mm (27 in) and the lower edge of the
windshield frame averaged about 840 mm (33 in). The agency is not aware
of the basis upon which Advocates selected the cars for its survey, but
NHTSA's survey was targeted preferentially at cars with the lowest
front end profile. Since NHTSA's average heights were higher than those
obtained by Advocates, NHTSA has no explanation for the discrepancy,
unless the survey methodologies were different. Hood heights have been
getting lower over the past few years, but that trend may have stopped
in the last two years. NHTSA believes that the average hood heights in
its survey are representative of the anticipated dimensions for new
passenger vehicles 5 to 10 years in the future. NHTSA concludes from
the VRTC test results that a 255 to 305 mm (10 to 12 in) overlap
between the guard bottom and the lower edge of the windshield will
ensure adequate structural engagement with the guard for the vast
majority of compact and subcompact cars.
NHTSA agrees with IIHS that a guard 560 mm (22 in) high will
override most bumpers, but disagrees that bypassing the bumper
sacrifices much of the potential front end energy absorption
capability. The bumper is designed to prevent cosmetic damage in low
speed crashes (less than 16 kph, or 10 mph) and provides only a small
portion of the energy absorption by a car crashing at higher speeds.
The bumper is mounted to the frontal crash energy management components
which extend rearward and upward to the rearmost section of the engine
compartment. These components will be adequately engaged by the rear
impact guard during a collision. Regarding IIHS's contention that NHTSA
should assume no loading-induced depression of the trailer bed, NHTSA
has not made such an assumption. The final rule regulates the guard
height only when the trailers are unloaded, and the 560 mm (22 in)
guard height was adequate in NHTSA's VRTC tests.
The agency conducted seven full scale crash tests with the proposed
guard in the course of the recent research project, using two types of
subcompact and two types of compact cars. These vehicles were
representative of average hood and engine heights for cars in those
size classes. The minimally compliant rear
[[Page 2018]]
impact guard was set 560 mm (22 in) above the ground. During these
tests, the cars had their front ends depressed to simulate the lowering
that would be experienced during heavy braking, but the guard was not
depressed to a level below the minimum clearance, as it might be if the
trailer were loaded. In some sense, therefore, these tests represented
a ``worst case scenario'' with regard to guard height. In each test,
the air bags were fully deployed before dummy contact and the
deceleration readings were much better than the minimum requirements in
Standard No. 208, Occupant Crash Protection. When there was no guard
attachment failure, they adequately engaged the structure of each car
and prevented PCI. There was little movement of the engine and no
contact between the engine and fire wall. The transversely mounted
engines did not rotate substantially, and none of the dummies legs were
crushed. Therefore, based on the docket comments, the recently
completed crash tests, and the assessment of late model passenger
vehicle frontal structure characteristics, NHTSA concludes that the 560
mm (22 in) maximum guard ground clearance is adequate to engage the
frontal crash energy management structure of most subcompact and
compact cars.
Although some small sectors of the industry may be affected, NHTSA
does not believe that there will be any insurmountable problems with a
560 mm (22 in) guard height. Several states have required 560 mm (22
in) maximum guard ground clearances in conjunction with the passage of
laws allowing 16 m (53 ft) trailers. NHTSA contacted several
distributorships/dealerships that sell heavy trailers in excess of 15 m
(50 ft) in length to the trucking industry and was unable to obtain
information documenting substantial operational problems due to guard
ground clearances of 560 mm (22 in) or less. The AFL-CIO Teamsters
Union did not give NHTSA enough information about the operating
environment of Carolina Freight Carriers Corporation, the trucking
company that sets its guards at 495 mm (19.5 in), to determine why they
have not experienced the problems that the other commenters expect with
guards lower than 560 mm (22 in).
NHTSA does not believe that the number of trailers involved in ship
roll-on/roll-off and trailer-on-flat-car circus ramp operations is
significant. TTMA data indicate that less than 5 percent of trailers in
the U.S. are ever transported by ship or barge, and that between one
and less than ten percent of new trailers are produced for trailer-on-
flat-car use. Modifications of may solve these problems. Most of the
vehicles in the waste services fleet mentioned by NSWMA are single unit
trucks excluded from the rule. However, in those few cases where there
are still problems, movable or adjustable guards may be needed.
There is adequate evidence in the comments to conclude that
requiring a guard height lower than 560 mm (22 in) would cause an undue
burden on the industry. Of particular concern are the comments of ATA,
TTX, AAR, and Transamerica Leasing, indicating that any height below
560 mm (22 in) will cause interference in intermodal operations.
Moreover, a lower height will increase the probability that the guard
will scrape or snag during normal vehicle operations and be damaged as
a result. Therefore, because the 560 mm (22 in) maximum ground
clearance proposed in the SNPRM appears to be the lowest height that
provides adequate effectiveness without imposing an undue burden, it
has been retained in the final rule. The agency notes that guards may
be mounted with less than the maximum allowable ground clearance.
b. Guard Width. The SNPRM proposed that the horizontal member of
the guard be required to extend across the width of the trailer to
within 100 mm (4 in) of the side extremities, but not outboard of the
side extremities. Advocates commented that the 100 mm (4 in) allowance
appeared arbitrary, based on the rulemaking record, but did not
actually suggest that the guard should extend fully to the side
extremities of the trailer. The AFL-CIO Teamsters Union indicated that
it fully supports the SNPRM's 100 mm (4 in) allowance, while noting
much anecdotal information from drivers about the importance of a
``full width'' guard, especially for crashes that occur at an angle to
the rear of the trailer.
NHTSA notes that there is no requirement of a 100 mm (4 in) inset.
Vehicle manufacturers are permitted to install guards extending the
full width of the trailer. However, the 100 mm (4 in) allowance gives
trailer and guard manufacturers some flexibility in choosing and
providing guards, without sacrificing safety or effectiveness. From the
perspective of guard effectiveness, it is doubtful that the extra
lateral coverage would significantly increase the strength of the guard
at its extremities or its ability to protect passengers in an offset
collision.
In fact, a 100 mm (4 in) inset would decrease the previously
mentioned ``hooking'' potential during sharp turns of the trailer and
provide more clearance in certain passing situations. The Florida
Department of Transportation and the TTMA recommended allowing rounded
guard ends to alleviate this potential problem, but NHTSA notes that a
100 mm (4 in) inset on an unrounded guard will partially accomplish the
same goal. As discussed above in the section on shape of the horizontal
cross member, pursuant to the TTMA's suggestion NHTSA has modified the
rule to allow rounded corners on guards to begin curving at a point 255
mm (10 in) inboard of the edges of the vehicle, while retaining the 100
mm (4 in) requirement for straight guards. Curved guards still have to
meet the other requirements of the vehicle standard (i.e., extend to
within 100 mm, or 4 in, of the side extremity). This modification
merely removes for the curved portion of the guard the requirement that
the bottom of the horizontal member be within 560 mm (22 in) of the
ground, in the case of upward curving guards, and the requirement that
the rear surface of the horizontal member be within 305 mm (12 in) of
the vehicle rear extremity, in the case of forward curving guards.
c. Specification of the Rear Extremity. Some commenters requested
that NHTSA modify the proposed definition of ``rear extremity'' to take
into account vehicles with high protrusions in the rear. The SNPRM
defined the rear extremity as the rearmost point of the vehicle that is
located 560 mm (22 in) or more above the ground. The specification of
the rear extremity is important because the SNPRM also requires that
the rear impact guard be located no more than 305 mm (12 in) forward of
the rear extremity of the vehicle. Some trailers and semitrailers, such
as hopper trailers with V-shaped bins and trailers with liftgates or
refrigerator units in the upper rear, are shaped such that the rear
extremity of the vehicle is located well above the road surface. These
protrusions do not present a danger of PCI because they are located
well above the roof line of most passenger vehicles. Yet, applying the
rear extremity definition in the SNPRM, a rear impact guard would have
to be mounted such that it extends rearward from the base of the
trailer to a position within 305 mm (12 in) of the back of the high
protrusion. Such an extended guard might pose a safety hazard as well
as operational difficulties.
Several manufacturers of vehicles with high rear end overhang
recommended alternative definitions of ``rear extremity'' that excluded
portions of the trailer rear that were high enough to clear the roofs
of passenger vehicles. The TTMA and the ATA recommended that vehicle
structure with a ground
[[Page 2019]]
clearance of 1,680 mm (66 in) or more be excluded from the definition
of rear extremity. NSWMA recommended excluding that portion of the rear
of the vehicle located 1,520 mm (60 in) or more above the ground.
The agency acknowledges the potential problem with the proposed
specifications and believes that redefining the rear extremity to
accommodate these vehicles is possible without reducing rear impact
guard effectiveness or creating new safety hazards. NHTSA contacted
officials from TTMA and ATA to obtain more information about the
current number and future production plans for vehicles of this type.
According to TTMA, these are mostly highly specialized vehicles and the
high overhang often consists of equipment such as cranes in addition to
``bubble door'' type container trailers. TTMA estimates that these
vehicles constitute less than one percent of the annual trailer and
semitrailer production and there is no trend toward increasing the
numbers substantially. ATA also estimated that the number of vehicles
produced annually with high rear overhanging structure represents less
than 5 percent of the total annual production of trailers and
semitrailers. ATA did not provide information on the future trend of
production of these vehicles, but indicated that the number has been
fairly constant in the recent past with new vehicles brought into
service primarily to replace vehicles going out of service.
The NSWMA recommended that the rule specifically state that, for
roll-off/hoist type trailers, the containers on the hoist frame be
considered as part of the load and not as part of the vehicle for
purposes of rear extremity specification. It suggests that the rearmost
part of the hoist frame should be considered the rear extremity.
Containers extend up to 1.5 m (5 ft) rearward from the end of the hoist
frame.
The agency has decided to revise the SNPRM's definition of ``rear
extremity'' to limit its ambit to the portion of the vehicle's rear
located between a lower and upper height limit. The lower limit
specification remains unchanged at 560 mm (22 in) (that is, guard
ground clearance). An upper limit for the area in which the rear
extremity is located has been specified at 1,900 mm (75 in) above the
ground surface for purposes of the vehicle standard. The portion of the
rear of the trailer that is located in the same horizontal planes as a
passenger vehicle windshield is the critical area for rear underride
protection. This is between 760 mm and 1,900 mm (30 and 75 in) above
the ground for almost all passenger cars, vans, and light trucks.
With regard to roll-on/hoist type trailers, the agency agrees with
NSWMA that there would be numerous regulatory problems involved in
considering the containers to be part of the vehicle, rather than part
of the load. Although the containers may extend beyond the end of the
vehicle and are capable of causing PCI just like the rear end of a
trailer, they are not part of a new vehicle as manufactured. Further,
the boxes, tanks, and other specialty containers are manufactured,
maintained, and in many cases owned separately from the vehicle. NHTSA
has no authority to regulate vehicle loads under 49 U.S.C. Chapter 301.
While NHTSA cannot require guards on the container on roll-on/hoist
type trailers, it can require guards on the rear of the trailer that
carries it. If the vehicle is designed to carry containers that do not
extend appreciably beyond the rear of the vehicles, the agency sees no
basis for excluding it. Casual observations indicate that the
containers do not usually extend beyond the rear of the vehicle, so
these trailers are required to have guards. The rear extremity will be
determined without the container.
d. Distance between the Guard Rear Surface and the Vehicle Rear
Extremity. Several commenters urged NHTSA to change the requirement
proposed in the SNPRM that the guard's horizontal member be mounted not
more than 305 mm (12 in) forward of the rear extremity of the trailer
and not rearward of the rear extremity. The distance between the guard
and the trailer rear extremity is significant because the sooner the
passenger vehicle engages the underride guard, the farther its occupant
compartment will be from the rear of the trailer when the guard is
engaged, and the better the chance that the passenger vehicle will stop
short of PCI.
Some commenters thought that NHTSA should allow the guard's
horizontal member to extend rearward of the rear extremity. Mr. John
Tomassoni stated that he saw no good safety reason for restricting rear
extension, since it is beneficial for preventing PCI. The TTMA also saw
no reason why the guard should not be located rearward of the rear
extremity. It also suggested a change in the language of S5.1.3 that
makes it clear that, even above 560 mm (22 in) the guard cannot be more
than 305 mm (12 in) from the rear extremity of the vehicle.
The Rite Hite Corporation stated that, for dock locks to function,
there must be no more than 230 mm (9 in) between the rear extremity and
the guard. It is concerned that the 305 mm (12 in) allowance will
render the dock locks useless.
NHTSA notes that the 305 mm (12 in) allowance is not a minimum, but
a maximum requirement. Casual observations by the agency indicate that
nearly all trailers currently have their guards mounted flush with the
rear extremity of the trailers. This practice is also specified as the
recommended practice in the ATA Maintenance Council guidance (RP 707).
It is also the configuration most compatible with dock locking
mechanisms. Based upon the TTMA's comment relating to mounting rearward
of the rear extremity, the industry appears to be in favor of mounting
as far rearward as possible. Therefore, NHTSA believes that trailer
manufacturers will continue to mount guards flush with the rear
extremity of the vehicle.
The main incentive to change the prevailing practice relates to the
smaller departure angle that will be created by lowering the maximum
guard ground clearance from 760 mm to 560 mm (30 to 22 in). Moving the
guard 305 mm (12 in) forward will slightly increase the departure
angle. However, nothing in this rule increases that existing incentive.
Therefore, the agency does not expect that a 305 mm (12 in) allowance
would have any effect on prevailing practice. Further, NHTSA does not
believe the benefit of moving the guard forward would be very
significant. Nevertheless, the agency had modified the requirement in
section 5.1.3. for guard rear surface location, or off-set, to state
that the guard should be mounted as close as practical to the rear
extremity of the vehicle. This will prevent vehicle manufacturers from
mounting the guard with up to 305 mm (12 in) of forward off-set from
the rear extremity of the vehicle unless the off-set is necessary and
not merely convenient. It should be noted that the requirement to mount
the guard as close to the rear extremity as practical is identical to
the requirements of ECE Regulation 58.
NHTSA agrees that having the horizontal member of the guard
positioned rearward of the rear extremity would be beneficial for
preventing PCI in the event of a crash. Some meritorious guard designs,
such as the Quinton-Hazel hydraulic energy absorbing guard and the Hope
rearguard underrun device, utilize horizontal members that are hinged
so that they are angled down and slightly rearward from the rear of the
trailer. This rearward positioning enables the guard to engage a
striking vehicle at a greater distance from the rear extremity and
gives the guard a greater distance to swing
[[Page 2020]]
forward and ``ride down'' the energy of the striking vehicle before PCI
occurs. If vehicle manufacturers want to provide this extra measure of
safety, this agency will not discourage it, as long as vehicle
manufacturers consider State laws governing overall combination truck
length. However, NHTSA does not want to require rearward positioning
because this configuration exacerbates the previously mentioned
potential for ``hooking'' adjacent vehicles during sharp trailer turns
and in other situations. Therefore, NHTSA has removed the SNPRM's
prohibition on positioning the horizontal member rearward of the rear
extremity. The new requirement that the member be as close to the rear
extremity as practical is limited so that it does not prohibit mounting
rearward of the rear extremity.
Advocates stated that NHTSA has no data to support the 305 mm (12
in) allowance because all crash tests were done with guards positioned
at the very rear of the trailer, thus implying that testing in the
forward-mounted position is required to support the allowance.
Even though the crash tests conducted by NHTSA had the rear impact
guards mounted in the usual position, flush with the rear of the
trailer, NHTSA has used a simple mathematical calculation to determine
whether, and to what extent, PCI would have occurred if the guard had
been mounted 305 mm (12 in) forward of the rear extremity (see VRTC
report ``Heavy Truck Rear Underride Protection,'' June, 1993. DOT-HS-
808-081). The agency assumed that if the guard had been mounted 305 mm
(12 in) farther forward, the car's occupant compartment would have come
to a rest 305 mm (12 in) closer to the rear of the trailer after the
crash. There is no reason to expect that the guards would have
performed more poorly if mounted further forward in the 305 mm (12 in)
zone at the rear of the trailer. Therefore, there is no need, as
Advocates suggests, to mount the guards at the ``worst case''
forwardmost point for testing purposes. In any case, the new
requirement to mount the guards as close to the rear extremity as
possible minimizes the number of trailers with guards mounted forward
of the rear extremity.
Mr. Byron Bloch recommended that the guard should be located no
more than 150 mm (6 in) forward of the rear extremity instead of 305 mm
(12 in). He said that the 150 mm (6 in) gained could be used to make
the guard more effective, by permitting the guard to absorb more energy
by utilizing a 255 mm (10 in) stroke rather than the proposed 125 mm (5
in) stroke. He stated that this would allow the manufacturers greater
flexibility in choosing an energy absorbing type of guard.
While it might be desirable to have guards that absorb an
equivalent amount of energy over a greater distance, Mr. Bloch's
suggestion could make PCI more likely. NHTSA does not want to reduce
the vehicle manufacturer's flexibility to offset the guard up to 305 mm
(12 in) forward of the rear of the trailer. If the agency permitted a
greater stroke for guards designed to be mounted closer to the rear
extremity, it would be difficult to control where these guards are
actually mounted. If mounted too far forward within the permitted
offset, they would allow excessive penetration under the trailer. NHTSA
is also concerned that guards with a greater amount of stroke will
pivot at the vehicle chassis, causing the horizontal member of the
guard to rotate up until it no longer engages substantial striking
vehicle structure of lower profile vehicles. This also would make PCI
more likely.
2. Exclusions
The SNPRM excluded certain categories of vehicles from the
requirement for rear impact guards. These categories were: Single unit
trucks (also referred to as ``straight body'' because they are
unarticulated); truck tractors; pole trailers; low chassis trailers;
special purpose vehicles; and wheels-back vehicles.
Almost every comment addressed one or more of these exclusions. The
consumer safety groups and most of the comments from the general public
were especially opposed to the exclusion for single unit trucks. The
consumer groups were also opposed to the exclusion for wheels back
vehicles. There was little opposition from the consumer safety groups
or the public to the exclusion for special purpose vehicles. Industry
groups generally supported all the exclusions. Many industry groups and
equipment manufacturers requested that their vehicles be explicitly
included in the special purpose vehicle category. Industry groups also
commented on the wheels back vehicle definition, generally requesting
that it be expanded to cover more vehicles.
The comments on the excluded vehicles are discussed in more detail
below. Since there was no substantive comment on the exclusions for
pole trailers, low chassis trailers, and truck tractors, these
exclusions are not discussed.
a. Single Unit (Straight body) Trucks. NHTSA expressly solicited
comment on the issue of applicability of the proposed rule to single
unit trucks. The majority of docket submissions, including comments
from trade associations, safety and consumer interest groups, and
private citizens, expressed the opinion that the proposed rule should
apply to single unit trucks. Many of these commenters stated that the
exclusion did not make sense because the underriding passenger vehicle
would not be any less at risk in striking the rear end of a single unit
truck than striking the rear of a trailer. Advocates said single unit
trucks account for about 300,000 of the 500,000 heavy vehicles produced
each year. IIHS and Advocates stated that medium and heavy duty single
unit trucks account for 36 percent of all the vehicle miles traveled by
heavy vehicles and 68 percent of all non-fatal (AIS 1-5) injuries
associated with passenger vehicle impacts with the rear of heavy
vehicles. CRASH's analysis indicated that the number of fatal accidents
in which passenger vehicles collide with the rear of trailers has been
increasing at a rate of about 6 percent per year. According to CRASH,
rear impacts involving single unit trucks have been increasing at a
rate of 11 percent annually in the recent past.
Mr. Robert Crail and Transamerica Leasing opposed the exclusion
because single unit truck manufacturers would be able to obtain guards
from the same places as trailer manufacturers. Mr. Byron Bloch
recommended that single-unit trucks should be excluded only by
exemption petition from individual manufacturers, and that if petitions
are granted, NHTSA should require a warning sign on the truck. The
State of New York Attorney General expressed the opinion that NHTSA is
required by the 49 U.S.C. Chapter 301 requirement that a safety
standard must meet the need for motor vehicle safety to include single
unit trucks in this rule, based on the ``very modest costs involved.''
Mr. John Kourik could find no definition anywhere in NHTSA's
regulations for the term ``single unit truck.''
Additional organizations recommending that the rule apply to single
unit trucks include the International Brotherhood of Teamsters, the
Owner-Operator Independent Drivers' Association, the Specialized
Carriers and Rigging Association, and the American Insurance Services
Group. About 2,200 private citizens also recommended that the rule
apply to single unit trucks as well as trailers and semitrailers.
Mr. John Tomassoni commented that including vehicles with a gross
vehicle weight rating (GVWR) of greater than 14,536 kg (10,000 lbs) in
the statistical
[[Page 2021]]
cost benefit analysis made the trailers appear unfairly dangerous
because most single unit trucks are in the low end of this weight
range, yet the larger trucks can still cause underride fatalities. He
suggested that cost effectiveness be reassessed on the basis of
requiring guards on trucks and trailers weighing greater than 11,790 kg
(26,000 lbs). He further recommended that even if the single unit
exclusion were retained in the final rule, the rule should at least
``encourage'' manufacturers of single unit trucks above 9,070 kg
(20,000 lbs) GVWR to install ``upgraded'' guards.
Manufacturers, owners, and operators of single unit trucks
supported the agency proposal to exclude those vehicles from the
rulemaking. Single unit trucks have many different configurations,
according to Ford Motor Company (Ford), some of which would make
installation of the rear impact protection guard impracticable. For
example, school buses with a 3,810 mm (150 in) distance from the rear
axle to the rear extremity of the vehicle would have their angle of
departure severely limited by the proposed rear impact protection
guard. Ford also indicated that there would be many questions
concerning guard installation responsibility because many units are
sold without bodies to secondary manufacturers.
The National Truck Equipment Association (NTEA) supported NHTSA's
proposal to exclude single unit trucks from the guard requirements,
citing the low rate of rear end impacts for trucks as compared to
trailers. NTEA also stated that single unit truck rear impact guard
installation cost would be considerably more (up to $3,000 where
custom-made guards are required) than the installation cost for
trailers because of the high number of special purpose single unit
trucks. It also said that single unit trucks are often farm vehicles,
dump trucks, and delivery trucks that travel short distances, at lower
speeds, generally in the daytime.
NSWMA says the single unit truck exclusion is important because the
safety benefits to passenger vehicles would be offset by the increased
risk to the truck operator and waste service personnel resulting from
the design restrictions that would be imposed by requiring guards on
single unit trucks.
Agency accident data indicate that approximately 27 percent of the
striking vehicle occupant fatalities and 15.8 percent the serious
injuries (AIS 3-5) in rear end collisions with heavy vehicles involve
single unit trucks, while 73 percent of striking vehicle occupant
fatalities and 84.2 percent of serious injuries involve trailers and
semitrailers. This relatively low involvement of single unit trucks
contrasts sharply with their contrasts sharply with their predominance
among heavy vehicles. Single unit trucks represent 72 percent of
registered heavy vehicles. Also, there are 1.6 times as many single
unit trucks produced as there are trailers and semitrailers that would
be candidates (i.e., assuming they do not qualify for some other
exclusion) for underride protection guards. Therefore, this rule covers
about 28 percent of the total vehicles and would achieve about 73
percent of the fatality reduction benefits. The SNPRM estimated that
collisions with single unit trucks account for approximately 68 percent
of the total injuries based on 1986 NASS data. Based on a reevaluation
of the data from the newer General Estimate System (GES) data set,
NHTSA has revised this estimate to about 18 percent.
According to FARS data from 1982 through 1992, fatalities resulting
from passenger vehicle collisions with the rear of single unit trucks
have remained fairly constant, with a slight increasing trend. This
shows that single unit trucks are not an increasing problem, as
suggested by CRASH.
NHTSA has concluded that this category of vehicles should not be
covered by the rule at this time. It may be desirable to cover at least
some single unit trucks. However, the agency lacks sufficient
information at this time to deal with single unit trucks as it has with
trailers, i.e., by excluding from the larger group of single unit
trucks those subgroups with special problems. The agency is concerned
that the variety, complexity, and relatively low weight and chassis
strength of many single unit trucks could require guards that are
substantially more costly than the guards for trailers and
semitrailers. This would prevent the industry from benefiting from the
economies of scale that the separate equipment and vehicle standards
were intended to promote. NHTSA is currently conducting a study of the
single unit truck production to see if there are groups of single unit
trucks that, like trailers, could be fitted with rear impact guards
without excessive costs.
The vast majority of heavy truck striking vehicle occupant
fatalities (73 percent) and injuries (84.2 percent) involve collisions
with the rear ends of trailers and semitrailers. Therefore, NHTSA can
capture most of the benefits from rear underride guards by requiring
them at the outset for trailers and semitrailers. The agency may
supplement this action by initiating a separate rulemaking action to
consider rear impact guards for single unit trucks after completion of
its study.
The agency does not see any merit in Mr. Tomassoni's suggestion.
There would be little benefit in requiring or encouraging manufacturers
to install guards on single unit trucks with a GVWR greater than 11,790
kg (26,000 lbs), because only 10 percent of single unit trucks are
between 4,536 and 11,790 kg (10,000 and 26,000 lbs).
In response to Mr. Kourik's observation that there was no
definition in the SNPRM or elsewhere for ``single unit truck,'' the
regulatory text of the final rule does not use that term, thus such a
definition is not necessary there. Single unit truck refers to trucks
that do not have an articulated chassis.
b. Special Purpose Vehicles. Several manufacturers and operators of
specialty vehicles such as vehicles with rear mounted liftgates, dump
trailers, auto transporters, farm equipment, and recreational vehicles
recommended that their vehicles be explicitly excluded from the rule.
They recommended that the definition of ``special purpose vehicle'' in
the 1992 SNPRM be revised to include these vehicles.
A number of liftgate manufacturers submitted comments. Thieman
Tailgates, Waltco Truck Equipment Company (Waltco), and Leyman
Manufacturing Company all recommended explicit exclusion of trailers
equipped with liftgates. Most liftgates are installed after the trailer
leaves the manufacturer. They also stated that it would be very
burdensome on small businesses to design liftgates around the guard
configuration requirements.
Waltco estimated that several thousand new vehicles are equipped
with liftgates annually. If required, guards for trailers equipped with
liftgates would be more expensive than NHTSA's cost estimate, according
to Waltco. Some guards would have to be movable and compliance testing
would be more complicated since some configurations would necessitate
that the guard be mounted to the liftgate itself. Waltco provided
diagrams to show that all of its liftgate designs are incompatible
because they must either swing through the guard area or create
dangerous shear/pinch zones between gate and guard.
Anthony Liftgates (Anthony) estimated that each year 3,000 new
trailers and semitrailers are equipped with rear mounted liftgates, 500
of the liftgates being manufactured by Anthony. Anthony stated that
rail-type liftgates are the most commonly used and their rail-type
models would be compatible with the proposed guard.
[[Page 2022]]
Anthony requested that NHTSA give special consideration to vehicles
equipped with liftgates since certain restrictions would be highly
detrimental to the industry.
NTEA stated that vehicles equipped with liftgates comprise the
largest group of special purpose vehicles. NTEA estimated that 2,500 of
the 150,000 trailers built each year are equipped with liftgates at the
rear, comprising only 1.7 percent of the market. The NTEA assured NHTSA
that no trailer manufacturer would use the special purpose vehicle
exclusion to evade the guard requirement because liftgates cost
($6,000) so much more than guards.
The Leyman Manufacturing Company stated that positioning the guard
as specified in the proposal would eliminate the installation of
liftgates. Leyman also pointed out that vehicles equipped with
liftgates were excluded from the January 8, 1981 NPRM.
The agency concurs with the observations made by liftgate
manufacturers regarding the complexities associated with the
installation of rear impact protection guards on these vehicles. NHTSA
acknowledges that vehicles equipped with liftgates were cited in the
January 8, 1981 NPRM as vehicles that would fall within the special
purpose vehicle exclusion. The agency also agrees that the rear impact
protection guard would interfere with the operation of some rear
liftgates. However, NHTSA does not think it is necessary to exclude all
liftgate-equipped trailers explicitly. Instead, the agency has modified
the definition of special purpose vehicle to make it clear that
vehicles with rear mounted liftgates that operate by swinging through
the area that is designated for the rear impact guard are excluded.
Consequently, vehicles equipped with the rail type liftgates that
Anthony Liftgates said would be compatible with a guard are not
excluded, while vehicles equipped with tuckunder and other types of
incompatible liftgates are excluded.
The Manufactured Housing Institute (MHI) stated that manufactured
homes are generally moved once or twice over their lifetime on an
integral, temporary chassis under strict oversize permits. MHI
recommended that NHTSA exclude these trailers from the proposed rule,
stating that the standard should not apply to manufactured homes,
modular structures, and mobile homes. According to MHI, there are about
300,000 units transported annually in the United States, being hauled
as trailers for an average distance of 160 to 200 kilometers (km) (100
to 125 miles (mi)). MHI also noted that mobile homes in transport have
305 to 560 mm (12 to 22 in) of ground clearance.
Mobile homes are not covered by the FMVSS. NHTSA has long
interpreted the Mobile Home Construction and Safety Standards Act of
1974 (Pub.L. 93-383) as withdrawing NHTSA's authority to regulate
mobile homes as motor vehicles and vesting this authority in the
Department of Housing and Urban Development. Therefore, mobile homes
are not covered by this rule. This conclusion does not, however, apply
to motor homes.
The Recreational Vehicle Industry Association (RVIA) recommended
that recreational trailers be excluded from the proposed regulation as
special purpose vehicles. According to RVIA, recreational vehicles are
probably involved in a small percentage of the rear end collisions due
primarily to low mileage and little nighttime highway exposure. RV
trailers often require high ground clearance for off-road use,
according to RVIA.
The agency does not believe that recreational vehicles should be
included in the definition of special purpose vehicle because they do
not have work performing equipment in their lower rear extremity.
However, NHTSA has concluded that certain recreational vehicles should
be explicitly excluded under the applicability section of the rule.
Most of these vehicles are believed to be low chassis vehicles, and
even if they are not, their chassis will generally be too weak to
support a guard. Therefore, vehicles with ``temporary living
quarters,'' as defined in 49 CFR 523.2, are excluded from the rule.
The Specialized Carriers and Rigging Association (SC&RA) suggested
that two types of heavy hauler trailers be listed in the final rule as
examples of ``special purpose vehicles''. The vehicles cited have rear
end configurations that vary based on use. According to SC&RA, rear
underride guards would interfere with the function of these types of
vehicles. The SC&RA asserts that design considerations prevent
compliance with the proposed rule.
If SC&RA is correct in asserting that design considerations prevent
the two vehicle types from having rear impact guards, these vehicles
would clearly meet the special purpose vehicle definition. The
illustrations provided indicate that they have work performing
equipment or would qualify for the low chassis vehicle exclusion.
Therefore, the agency sees no need to explicitly list these vehicles as
examples of special purpose vehicles.
NSWMA recommended that the ``special purpose vehicle'' definition
be modified to include vehicles with special equipment mounted at the
rear that is not directly affected in an adverse manner by the rear
impact protection guard. NSWMA believes that this exclusion is
necessary because of the potential impairment of function in waste
industry specialized hauling vehicles from factors such as reduced
departure angle and off-road use.
NHTSA does not believe that the special purpose vehicle definition
should be modified in response to NSWMA's recommendation. Vehicles with
work performing equipment at the rear whose operation would not be
adversely affected by the rear impact guard should be equipped with
guards. All trailer users will have to deal with a reduced angle of
departure. Further, exclusions of vehicles need to be made on the basis
of physical attributes instead of anticipated functional restrictions.
NSWMA has not alleged that these trailers are physically different from
any other trailers, only that they are used in a demanding operational
environment.
NHTSA believes that the use of adjustable guards will alleviate
most operational restrictions where the work performing equipment does
not qualify the vehicle for the special purpose vehicle exclusion, such
as trailers that travel on uneven surfaces or that have beds that raise
and lower at their rear ends. NSWMA acknowledged that most of the
vehicles it refers to are excluded as single unit trucks.
The National Potato Council recommended that vehicles used
primarily for harvesting be excluded from the rule. The Potato Council
stated that rear-unload semitrailers have rear conveyors whose function
would be significantly impaired if rear impact guards were required. It
also requested that eighteen wheelers that travel no more than 240 km
(150 mi) from their base farm should be excluded from the proposed
rule. These vehicles are on road for very short periods, according to
the Potato Council--one to two months in the spring to haul seeds, and
a similar period in the fall to bring the crop to market.
Assuming the Potato Council is correct that underride guards would
substantially impair the function of the rear-unload semitrailers,
these vehicles would qualify as special purpose vehicles. A specific
mention of them in the rule is therefore unnecessary. Regarding the
eighteen wheelers, sporadic road use and short travel distances have
been considered in the past as factors in determining whether vehicles
are ``motor vehicles'' that are subject to NHTSA's safety standards.
However, the fact that the vehicles are
[[Page 2023]]
used on the public roads only two to four months a year does not
disqualify them as motor vehicles. The same may be true for many pickup
trucks used on farms. Merely because a given trailer happens to be used
on the farm most of the year does not mean it was not manufactured
primarily for use on the public streets. Similarly, the shortness of
the trips the vehicle takes is not dispositive, unless it is used only
to cross from field to field or to travel between job sites. It appears
that the trailers the Potato Council refers to are used primarily for
transportation during the spring and fall. Therefore, the definition of
special purpose vehicles has not been modified as recommended by the
Potato Council.
Mr. John Kourik suggested that the application section be expanded
to show whether or not the rule covers the following kinds of vehicles:
boat trailer, fire fighting vehicle (some have trailers), trailer
converter dolly, agricultural commodity truck, auto transporter (a
combination vehicle), container chassis trailer, pulpwood trailer,
heavy hauler trailer, and straddle trailer. In the alternative, he
suggests that some method for obtaining interpretations of
configurations is needed, other than tedious petitions for exemptions.
NHTSA is not providing interpretations for each of the vehicles
listed by Mr. Kourik. Applicability is based on the configuration of
the vehicle, rather than vehicle function, as Mr. Kourik's list
suggests. The agency is unsure about the physical attributes of some of
the listed vehicles. In the absence of more detailed information, NHTSA
cannot give definitive interpretations for the listed vehicles. NHTSA
believes that the rule adequately defines those vehicles that are
included and those that are excluded. NHTSA believes further that the
applicability will be obvious in almost all cases to persons
sufficiently familiar with details of the physical attributes of the
vehicles in question. Given his knowledge about these vehicles, Mr.
Kourik should be able to determine whether they fall within the
agency's exclusions. The agency notes that the public is not required
to petition for an exemption to obtain an interpretation of the rule's
applicability to a particular vehicle configuration. The Office of the
Chief Counsel issues such interpretations in response to letters of
inquiry which provide sufficient background information.
FHWA initially indicated that the definition of a special purpose
vehicle should include certain dimensions for the work performing
equipment. The maximum ground clearance, minimum width, or maximum
distance between any work performing equipment and the side of the
vehicle were cited by FHWA as dimensions that should be included in the
definition. According to FHWA, adding language to the rule that further
defines the location of work performing equipment would provide better
guidance to vehicle manufacturers and reduce potential enforcement
problems for NHTSA and FHWA.
NHTSA believes that the relationship of the work performing
equipment to the location in which the rear impact guard would have to
be installed, and not the mere presence of the equipment, should be the
criterion for determining exclusion. If the equipment needs to move
through the area that could be occupied by the horizontal member of the
guard, as defined in S5.1.1 through 5.1.3 of the vehicle standard, the
presence of a guard would impair or eliminate the usefulness of the
equipment. NHTSA has decided that it would be both impracticable and an
undue burden to require rear impact guards on such vehicles. However,
if the equipment is detached or stows out of the guard area while in
the vehicle is in transit, a guard would not be an impediment to the
equipment, and a guard is required. Although it is not required, NHTSA
encourages vehicle manufacturers to move the guard within the limits of
S5.1.1 through S5.1.3 to accommodate the work performing equipment.
It is neither practical nor necessary to specify location or
dimensions for the work performing equipment. The ground clearance,
width, and distance from the work performing equipment to the side of
the vehicle are not relevant because the work performing equipment is
not required to perform as a guard. NHTSA does not want to restrain
innovation by giving direction to vehicle manufacturers on the
configurations of their work performing equipment. Defining the
dimensions or location of the work performing equipment is not
necessary for an enforceable rule. All that is required to confirm the
applicability of the exclusion is a demonstra
FR Doc. 96-682 Federal Motor Vehicle Safety Standards Rear Impact Guards; Rear Impact Protection
tion that the work
performing equipment, while the vehicle is in transit, resides in the
area defined by S5.1.1 through S5.1.3 as the guard's horizontal member
or passes through that area to perform its function. Therefore, the
definition of special purpose vehicle in the rule has been revised to
reflect that the foundation of the special purpose vehicle exclusion is
the presence of work-performing equipment that resides in or, to
perform its function, moves through the area designated for the
underride guard while the vehicle is in transit.
The definition of special purpose vehicle has been modified to
explicitly recognize the piping of hazardous materials tankers as work
performing equipment. RSPA's rule for underride guards on hazardous
materials tankers (49 CFR 178.345-8) is generally compatible with this
rule, and this rule applies to hazardous materials tankers. However, to
prevent any confusion as to the relationship between RSPA's rule and
NHTSA's rule, this rule explicitly recognizes that piping that carries
hazardous materials while in transit needs the special protection that
is provided by RSPA's rule. Therefore, hazardous materials tankers with
piping in front of the guard are excluded from the requirements of this
rule.
c. Wheels Back Vehicle. A ``wheels back vehicle'' was defined in
the SNPRM's vehicle standard as a vehicle which has a permanently fixed
rear axle with tires whose rearmost surface is located not more than
305 mm (12 in) forward of a vertical transverse plane tangent to the
rear extremity of the vehicle. Several commenters recommended that the
wheels back vehicle definition be changed to include vehicles with rear
tires located as much as 610 mm (24 in) from the rear extremity of the
vehicle. Other commenters expressed concern that impacting the rear
tires of a trailer or semitrailer is similar to impacting a rigid
barrier and the agency should delete this category of exclusion.
Industry groups and some other commenters favored an expansion of
the wheels back definition by allowing the wheels to be positioned more
than 305 mm (12 in) forward of the rear extremity. The ATA and the TTMA
noted that the proposed rule allowed guards to be mounted up to 305 mm
(12 in) forward of the rear extremity while allowing an additional 125
mm (5 in) to meet the strength requirements of the 1992 SNPRM. TTMA
recommended, therefore, that the distance between the rear tires and
the rear extremity of the vehicle be increased from 305 to 430 mm (12
to 17 in). According to ATA, the spirit of the ``wheels back vehicle''
exclusion would not be violated by allowing the tires to be located as
much as 560 mm (22 in) forward of the rear extremity. ATA reasons that
guards mounted 305 mm (12 in) forward of the rear of the vehicle will
allow some vehicles to underride more than 305 mm (12 in) prior to
contact with the guard since the forward most area of the car may not
be contacted.
TTMA's recommendation to add the 125 mm (5 in) of permitted test
[[Page 2024]]
deflection to the 305 mm (12 in) of permitted setback, resulting in 430
mm (17 in) of permitted setback, is not practical. It does not account
for the fact that, in a crash, a portion of the impacting vehicle's
initial energy and velocity will be absorbed after the guard has
undergone 125 mm (5 in) of deflection or deformation. This is a very
different situation from one in which the initial impact contact
between the passenger car and the underride guard takes place 430 mm
(17 in) forward of the trailer's rear extremity. With a 430 mm (17 in)
setback, even if the rear impact guard were completely rigid, the
striking vehicle would still advance closer to the rear of the trailer
(and potential PCI) before coming to rest because the vehicle would be
forced to absorb more energy (thus increasing the likelihood of
occupant injury).
While some passenger vehicles may underride the impact protection
guard prior to contact, as stated by ATA, this non-contact underride is
not likely to be more than a few inches. If anything, this fact
mitigates in favor of requiring the guards to be positioned farther to
the rear. This final rule adds the requirement that the underride guard
be positioned as far to the rear of the vehicle as practical.
Some commenters recommended allowing the wheels to be positioned
even farther forward if there were a guard in between the rear wheels.
The ATA encouraged NHTSA to allow vehicles to use the ``wheels back''
exclusion vehicles with tires up to 610 mm (24 in) forward of the rear
extremity if a ``center'' guard were provided. This partial guard would
be located no more than 305 mm (12 in) forward of the rear extremity
and no more than 150 mm (6 in) inboard of the inside sidewalls of the
tires. The center guard's placement between the wheels would complement
the tires in resisting underride. Mr. Robert Crail suggested that a
partial underride protection guard be specified for double trailers
with the rear tires mounted between 430 and 610 mm (17 and 24 in)
forward of the rear extremity, because the trailer wheels are as
effective as a guard at full deflection. He said that the partial rear
underride protection guard should extend to within 205 mm (8 in) of the
inboard sidewalls of the rear tires.
The agency believes that the specification of a partial rear impact
guard would not enhance safety because it is unlikely that a passenger
vehicle would pass between the rear tires of the trailer. The spacing
between the inside surfaces of the rear tires on a 2,600 mm (102 in)
wide trailer was measured by the agency as 1,310 mm (51.5 in). There
are almost no passenger vehicles produced with widths of less than 1600
mm (63 in). Therefore, even a centric collision between the widest
trailers and the narrowest cars would probably result in considerable
engagement of the tires with the frontal vehicle structure.
Other commenters, in addition to the ATA and Mr. Crail, believe
that the 305 mm (12 in) maximum offset makes the exclusion too
restrictive. Yellow Freight System suggested that the wheels back
definition be changed to allow the wheels to be 560 mm (22 in) forward
of the rear extremity. It states that most trailers cannot position the
wheels closer than 460 to 560 mm (18 to 22 in) from the rear extremity
because the combined effect of shorter distances and the Federal Bridge
formula would be to restrict the weight of the load that can be
carried. Strick Trailers stated that operators routinely position the
rear axle at 915 and 1,065 mm (36 and 42 in) forward of the rear
extremity of the vehicle, which would exclude them from the wheels back
vehicle category.
The rationale for all these suggestions appears to be that most
trailers with the axle in the rearmost position have the rear tire
within a range of 405 to 610 mm (16 to 24 in) forward of the rear, and
an expanded wheels-back definition would lower costs by allowing more
trailers to qualify as wheels back. The agency notes that many of the
commenters mentioned ``positioning'' of the rear wheels, which implies
that they are referring to the vehicles that do not have fixed axles.
Therefore, these vehicles would not be eligible for the wheels back
exclusion anyway. NHTSA does not believe that carriers would change the
wheel positioning of their fleets merely to avoid the small one-time
incremental cost of installing an upgraded guard, as Yellow Freight
suggests. Moreover, while NHTSA is concerned with the costs of the
rule, the ultimate goal is to prevent PCI without imparting
unacceptable deceleration forces to the impacting vehicle. Allowing
vehicles to have their wheels farther forward would increase the
likelihood of PCI. The agency does not believe, based on available
information, that the definition of wheels back vehicle should be
modified to increase the allowable distance between the rear extremity
of the vehicle and the rear tires.
Advocates appeared to favor eliminating the wheels back exclusion
altogether. Advocates stated that the agency has no test data on
``wheels back vehicles'' which support the conclusion that they should
be excluded from the proposed rulemaking. Advocates further stated that
the agency has contradicted the argument that impacting the rear wheels
of trailers results in acceptable crash forces, because the Preliminary
Regulatory Evaluation (PRE) likens a collision with the wheels to
striking a ``rigid wall.'' Trailer tires will not provide an acceptable
level of rear impact protection, according to Advocates. Advocates
acknowledged that two crash tests with wheels back vehicles were
conducted by the Texas Transportation Institute (TTI), but referenced a
paper co-authored by John Tomassoni, a former NHTSA engineer, as
evidence that the collision forces would be ``relatively high.''
Advocates also stated that the rule should define ``permanent''
settings for sliding bogeys by requiring that they be welded or bolted
in place.
Vehicles meeting the wheels back requirements should be capable of
preventing the trailer structure from penetrating a passenger vehicle
occupant compartment during a rear end collision. Two full-scale crash
tests involving ``wheels back vehicles'' were conducted by the TTI in
1979. For these wheels back vehicle tests, the rear tires were located
about 100 to 205 mm (4 to 8 in) forward of the rear extremity of the
trailer. In each test, in an offset crash in which a Chevrolet Impala
struck the tires and in a centric crash in which a VW Rabbit struck the
axle and other components between the tires, PCI was prevented at about
56 kph (35 mph). In the test with the VW Rabbit, post-crash photos
indicate that, when dynamic underride reached the maximum, the body of
the trailer was 305 to 355 mm (12 to 14 in) from the A-pillar and
windshield area of the passenger vehicle. These crash tests indicate
that a fixed rear axle with the tires mounted within 305 mm (12 in) of
the vehicle's rear extremity constitutes an adequate substitute for a
rear impact protection guard from the standpoint of preventing PCI.
The rear wheels of a trailer are adequate for managing the energy
of an underride crash. The on-board dummy instrumentation during both
crashes indicated a relatively low potential for serious injuries. In
fact, the wheels back vehicle performed better in the offset crash than
all other guards tested in the TTI research project except the Quinton-
Hazel guard. Although the maximum vehicle deceleration of a VW Rabbit
that was driven centrically into a wheels-back trailer at 33 mph was
similar to the deceleration of the same make/model vehicle driven into
a rigid wall (35 mph), partial guards for the sole purpose of energy
absorption in centric crashes are not warranted from a cost-benefit
standpoint.
[[Page 2025]]
NHTSA has decided to retain the wheels back exclusion for vehicles
with the rear wheels within 305 mm (12 in) of the rear extremity of the
vehicle. Vehicles with wheels set farther forward than that will have
sufficient room between the guard and the trailer rear tires for the
guard to deflect and absorb some of the passenger vehicle's energy
before the guard contacts the rear wheels of the trailer. Vehicles with
rear wheels within 305 mm (12 in) of the rear extremity will not have
sufficient room for the guard to do much good before it contacts the
wheels.
The wheels back vehicle exclusion is intended to apply exclusively
to vehicles with the rear tires permanently located close to the rear
extremity of the vehicle. The concept of ``permanent'' is clear enough
and does not require elaboration, as Advocates suggests. The rear
wheels must be either welded in place or designed so that they can
occupy only one position. Vehicles with moveable bogeys cannot be
wheels back vehicles even if their wheels are set in a wheels back
position, as suggested by the comments of Yellow Freight and Strick
Trailers.
D. Costs
Many of the commenters addressed the question of cost of the guard.
The consumer safety groups thought that the agency's estimate of the
cost of energy absorbing guards was too high. Conversely, the industry
commenters generally thought the agency's estimate was either low or
about right. Most of the private citizens who commented on guard cost
said that energy absorbing guards were worth the price, without giving
specifics.
Advocates stated that NHTSA had not taken into account the fact
that economies of scale would lower the cost of hydraulic energy-
absorbing guards to nearly that of the proposed guard. It said that the
hydraulic guards are within the price range of the proposed guard.
Advocates also commented that NHTSA provides no guidance information to
carriers on effectiveness, cost/benefit ratio, mounting heights, or
crashworthiness that would allow them to choose a superior (i.e.,
energy absorbing) guard.
The American Automobile Association (AAA), the New York Attorney
General, and many private citizens expressed the view that the
additional cost for energy absorbing guards (variously described by
them as approximately $200 additional, or ``modest'') is reasonable.
These commenters did not provide information on where such guards would
be obtained or why a doubling to tripling of the cost represents a
``modest'' increase.
TTMA provided a table showing estimated costs to the customer over
current ``bumper'' (NHTSA assumes TTMA means guard) prices for various
kinds of vehicles. Estimated cost increases range from $130 to $200,
except for tilt deck trailers. For those vehicles, the costs of the
hydraulics to swivel the guard out of the way would cost $3000.
Based on the costs incurred during the fabrication of 15 minimally
compliant guards for the VRTC research project, NHTSA estimates the
incremental cost of the guard hardware is between $77 and $96 per unit.
For a complete analysis of costs, see the Final Regulatory Evaluation
(FRE). NHTSA agrees with Advocates that the economies of scale would
lower the cost of hydraulic guards, or any guards, if they were to
become widely accepted. However, Advocates submitted no data to show
that the economies of scale would lower the cost of hydraulic guards
close to the estimated price of the minimally compliant guard. NHTSA
sees no basis for this assertion, especially since, to the best of this
agency's knowledge, there are currently no hydraulic guards on the U.S.
market. NHTSA has taken the economies of scale into account in its cost
estimates in the FRE, as an offset to dealer mark-up, but notes that
the amount cannot be quantified. TTMA's estimated incremental costs
that were submitted to the agency on June 8, 1992 are 30 to 100 percent
higher than NHTSA's if their list represents incremental increases. If,
as NHTSA assumes, TTMA is referring to total guard equipment cost
(excluding fuel penalty, maintenance, and payload loss), then NHTSA
agrees.
As to Advocates' suggestion about providing information on
hydraulic guards, the market place will sort out competing guard
designs and technologies based on their effectiveness, cost/benefit
ratio, mounting heights, and crashworthiness. Manufacturers of superior
guards can be expected to provide carriers with information favorable
to their products. If hydraulic energy absorbing guards are more
advantageous than minimally compliant guards, vehicle manufacturers
will undoubtedly install them. The commenters who stated that the
benefits of energy absorbing guards were worth the modest costs will
see this opinion tested in the marketplace.
Another aspect of costs addressed by the commenters was the revenue
loss to the carriers due to the added mass of approximately 25 kg (55
lbs) of the upgraded guards displacing payload that they could
otherwise carry. Advocates contended that NHTSA had eliminated
hydraulic guards from consideration because of their extra weight, even
though NHTSA's contracted researcher and agency staff had said that the
payload displacement was exaggerated and the percentage of trailer
fleet impacted is infinitesimal. Advocates concluded that the revenue
loss is negligible because the majority of commercial carriers reach
their maximum cubic cargo capacity before they reach permissible gross
load limits. Advocates also believes that the agency based its
conclusions on unrealistically high estimates of hydraulic guard mass
(135 kg, or 300 lbs). Ford incorrectly asserted that NHTSA's calculated
costs do not account for lost revenue from payload displacement.
Transamerica Leasing stated that the 25 kg (55 lb) add-on in mass is a
correct figure. Yellow Freight System considers the loss of
productivity due to additional tare weight to be unquantifiable.
However, it estimated the fuel cost penalties due to the additional
weight of the guard at $29.53, and the maintenance of the upgraded
guards at $13.33, over the lifetime of the trailers. Finally, Yellow
Freight System estimated that this rule will cost it $2.2 million as
their trailer fleet is retired and replaced.
The agency has reviewed its cost and weight data and concluded that
the Quinton-Hazel guard is more costly (at $300) and heavier (135 kg,
or 300 lbs). NHTSA does not believe that the McCafferty study,
Advocates' basis for the contention that energy absorbing guards are
weight-efficient, adequately supports that conclusion. A September
1980, Texas Transportation Institute report entitled ``Performance
Upgrading of Commercial Vehicle Underride Guards'' states that the mass
of the Quinton-Hazel energy absorbing guard ranges from about 60 to 143
kg (133 to 315 lbs). Yellow Freight System's estimates were based on
the PRE, but NHTSA has updated these figures in the analysis in the
FRE. The FRE now provides estimates of the payload displacement revenue
loss of 33 cents over the life of the trailer, and estimates of
lifetime fuel cost of $23.05.
Guard design and testing are other additional costs associated with
this rule. Although some guards probably already meet the proposed
requirements, NHTSA assumes in the FRE that all existing guards will
need to be redesigned to meet the strength and energy absorption
requirements. No commenters provided cost estimates for guard redesign.
However, NHTSA notes that design and testing are one-time costs, and
can be recovered over the
[[Page 2026]]
lifetime of the guard design. NHTSA further notes that the TTMA's
Recommended Practice ``Rear Impact Guard and Protection'' appears to
have been based on the SNPRM. This Recommended Practice is designated
RP No. 92-94, and was originally issued in April of 1994 and revised in
November of 1994. Apparently it has been adopted as an industry
standard, so little reengineering should be necessary.
Testing of a guard design once it is produced is another expense
related to this rule. IIHS commented that guard manufacturers must
carefully consider the chassis in developing installation instructions.
Therefore, IIHS concluded that testing with the guard attached to a
part of the chassis (provided by the vehicle manufacturer) would result
in little additional burden.
NHTSA agrees that there will generally be little additional burden
in testing on a chassis part. However, the agency does not want to
require such testing because there may be other valid bases for
certification, such as engineering analysis, on certain models of
trailers. Why should the guard manufacturer test on fifty different
chassis parts when they are all nearly identical? NHTSA has adopted
IIHS's suggestion to some extent by allowing testing on trailers, but
it is an option, not a requirement.
Mr. John Kourik stated that there is no estimate given for the
trailer manufacturer's costs for testing in situations in which the
guard is incorporated or integrated into the chassis structure itself,
rather than attached as a separate unit.
There is no estimate given for integrated guard designs because the
agency considers it highly unlikely that manufacturers will produce
integrated guards. Replacement or repair costs on such guards would be
prohibitive. The FRE's estimates of testing costs are based on
conventional designs that meet the performance requirements. Vehicle
manufacturers can be expected to factor the increased testing costs
into their decision whether to produce such an integrated design.
Four liftgate manufacturers commented on the responsibility for and
burden of testing. Waltco Truck Equipment Company, Leyman Manufacturing
Corporation, and Venco stated that not excluding vehicles with
liftgates would put an undue burden on vehicle manufacturers of
developing and testing guards compatible with the various liftgate
designs. Leyman added that the SNPRM's estimated guard cost of $112
doesn't account for its removal and reinstallation when installing
liftgates. Anthony Liftgates, Inc. stated that liftgate manufacturers
cannot afford testing and that testing should be the responsibility of
the trailer manufacturer or the last party to certify the trailer for
highway use.
The agency recognizes the costs associated with designing,
installing and testing underride guards. This is the reason NHTSA
changed to separate equipment and vehicle standards. Testing is the
responsibility of the guard manufacturer, not the trailer manufacturer.
However, as with any piece of motor vehicle equipment required by a
FMVSS, subsequent alterers may not render the guard inoperative.
Moreover, trailers bearing liftgates in the lower rear have been
excluded from the requirement to have rear impact guards.
NHTSA has also accounted for the incremental fuel and materials
cost increase that will be expended in complying with the upgraded
guard requirements. NHTSA estimates that an additional 25 kg (55 lbs)
of steel will be required in a minimally compliant guard. This means
that approximately 2,340 metric tons (2,580 tons) of additional steel
will be required annually by the trailer industry. NHTSA estimates a
lifetime additional fuel cost, due to the additional weight of the
upgraded guards, of $23.05. Based on the weighted vehicle miles
traveled, this translates to an additional 0.00007 liters of diesel
fuel per kilometer (0.00003 gallons per mile). Since most tractor
trailers now get about 2.3 kilometers per liter (5.5 miles per gallon),
this seems insignificant.
E. Benefits
The main benefits of this rule will be the fatalities and injuries
avoided by the upgraded guards. Commenters focussed solely on fatality
and injury benefits. Advocates believes that the benefits of the rule
could be much higher than NHTSA estimated. It believes that potential
benefits are being foregone because a minority of newly manufactured
trucks, only 15 percent of the American truck fleet, will be covered.
Many other commenters also stated that a minority of trucks would be
covered. Advocates says that NHTSA has not calculated the benefits lost
through exclusion of special purpose vehicles and wheels back vehicles.
Advocates also said that the agency's estimated benefit of 9 to 19
lives per year does not account for deaths due to unsurvivable
deceleration forces from overly rigid guards permitted by the proposal.
It believes that saving only 9 to 19 out of its claim of nearly 500
truck rear-end fatalities per year is inadequate. Advocates cannot
reconcile the drop in the estimated number of lives saved (63 in the
1981 NPRM versus 9-19 in the 1992 SNPRM) with the SNPRM's statement
that single unit trucks cause a minority of PCI deaths. It asserted
that such a low benefits figure indicates that NHTSA has not revealed
certain assumptions that it used in its cost benefit analysis.
Advocates asserted that the benefits of the lower death/injury rate
from energy absorbing guards make them worth requiring.
CRASH and IIHS asserted that the data NHTSA relied on in its
calculations were inadequate. CRASH argued that NHTSA improperly
arrived at a 4:1 combination/single unit ratio by using 26 ``hard
copy'' FARS reports, while dismissing as ``unrepresentative'' other
state, national, and international studies. It cited estimates of 28
percent, 44 percent, and most recently 66 percent of rear end truck
fatalities caused by underride. Using the 66 percent number and NHTSA's
upper range (27 percent) of guard effectiveness, CRASH concluded that a
rule including single unit trucks would save 122 lives in 1995, six
times the highest NHTSA projection. CRASH accuses NHTSA of defining
underride as only involving full PCI as a pretext for discarding the
much higher figures from other studies.
IIHS thinks that NHTSA's estimate of 72 fatalities per year is
understated by between 46 and 96 fatalities because the crashes were
not properly coded in the FARS. It based this conclusion on IIHS
calculations of parked truck underrides and other underrides that were
not so coded in the FARS, extrapolating from California data. CRASH
also stated that parked trucks were not properly treated in the
analysis, even though they cause 20 percent of underride deaths. IIHS
cited studies concluding that the European standard is only saving half
of the lives that it could because its guard, at about 560 mm (22 in),
is set too high. IIHS also sent a September 16, 1994 letter to the
agency detailing inconsistencies between FARS and NASS data on
underride. The letter concluded that the FARS analysts failed
approximately 50 percent of the time to identify whether underride was
involved because of inadequate information on the PARs and because FARS
analysts are not familiar with typical indicators of underride.
CRASH also faulted NHTSA's benefit calculation methods, and says
that the agency systematically chose the lowest possible figures to
calculate potential benefits in the Preliminary Regulatory Evaluation
(PRE). It thinks that NHTSA is falsely showing the underride fatality
statistics as static by using only the
[[Page 2027]]
FARS data on combination trucks, and only during the period from 1985
to 1989. Its analysis of the data show that the single unit truck
underride fatalities are growing most rapidly (80 percent between 1982
to 1989, claiming 145 persons in 1989). Extrapolating these data to the
rule's 1995 effective date, CRASH calculates that single unit trucks
account for 229 out of 685 total underride fatalities, an increase of
90 percent over NHTSA's static total.
Regarding Advocates' comment on the limited applicability of the
SNPRM, the benefits of requiring guards on single unit trucks are far
less than those for requiring guards on trailers because single unit
trucks cause a proportionally smaller number of underride fatalities.
Also, single unit trucks come in a much wider variety of
configurations, making it much more difficult to attach standardized
guards. Even if it would be cost beneficial to require some subsets of
the single unit truck fleet to use underride guards, NHTSA does not now
have the information necessary to define those subsets that should not
be excluded. The FRE has a more complete analysis of the benefits. For
these reasons, NHTSA may address underride guards for single unit
trucks in a separate rulemaking. NHTSA has determined that there will
be essentially no benefits lost by excluding wheels-back vehicles,
since the rear tires of the trailer represent an adequate underride
guard from the standpoint of PCI prevention. A similar argument can be
made for low-chassis vehicles. PCI will be avoided due to trailer
design, but the rear of the trailer may have other impact hazards that
reduce effectiveness as a rear impact guard. The agency does not know
how many trailers have work performing equipment that would qualify for
the special purpose vehicle exclusion, but believes this number to be
very small. Any benefits lost to it would likely be partially
compensated for by the work performing equipment, such as liftgates,
acting as a guard.
The energy absorption requirement in the final rule will adequately
prevent deaths and injuries from overly rigid guards. Therefore, the
agency believes that its estimate of the fatalities prevented by this
rule is realistic, and will not be degraded by overly rigid guards, as
Advocates claims. NHTSA cannot respond to Advocates comment about the
benefits of the hydraulic energy absorbing guards because the agency
has not been provided with sufficient information. Inquiries with the
Quinton-Hazel Company revealed that they no longer produce the guard,
and the basis for the study concluding that the guard was cost
effective is unclear.
Regarding Advocate's comment that a rule that would save only 9 to
19 fatalities is inadequate because it should save more lives, the
agency notes that two key factors resulted in the low benefits
calculations: (1) The low annual underride fatality rate, and (2) guard
effectiveness estimates. Based on 8 years of FARS data and 79 detailed
police accident reports, NHTSA's preliminary estimate (PRE) determined
that the national underride rate with PCI was 14-23.5 percent. This
translates to an annual average of only 59 fatalities per year
attributable to rear underride with PCI, or about one per state per
year. Based on the 1979 Michigan data, NHTSA estimates that about one-
third of these fatalities occur at speeds below 40 kph (25 mph), which
is the maximum design speed of the minimally compliant guard for most
vehicles. The low number of potentially affected fatalities was
reflected in the guard effectiveness range (18-27 percent) used in the
agency's preliminary benefit calculations. This effectiveness range is
similar to that suggested for the comparable European guard by the
British researchers cited by Advocates.
The drop in estimated benefits from the earlier notices is a result
of improved calculation methods and data. The 1981 NPRM's estimate of
63 fatalities was based on an assumed average PCI rate of 35 percent
and an assumed guard effectiveness of 50 percent. The 9-19 fatalities
estimated in the SNPRM were based on a PCI underride fatality rate of
14 to 23.4 percent and a guard effectiveness of 18 to 27 percent. NHTSA
subsequently has decided that a more appropriate methodology is to rely
only on the FARS database, which is now well established. Therefore,
based on better data (13 years of FARS plus inspection of 139 police
accident reports) NHTSA now believes that the PCI rate is 11 to 17
percent. The 10 to 25 percent guard effectiveness estimate is
consistent with experience with the European guard, modeling studies,
and accident investigations, which are detailed in the FRE. Based on
these parameters, the anticipated annual benefits of this rule,
including the effects of conspicuity, are estimated to be 4 to 15 lives
saved by preventing PCI and 29 serious injuries (AIS 2-5) prevented. An
unknown number of non-PCI related lives will also be saved, as well as
145 minor injuries (AIS 1) prevented.
Advocates' suggestion that NHTSA is using unstated assumptions in
the calculation of benefits is baseless. The regulatory evaluations
explicitly state all of the important factors and assumptions used in
the benefits calculation.
NHTSA acknowledges that the FARS data are not perfect. However, the
agency disagrees with CRASH and IIHS that the FARS is an inadequate
basis for making estimates of benefits and drawing conclusions for the
purpose of this rulemaking. In fact, the FARS and NASS databases are
the best available. The FARS represents a census of all fatal accidents
occurring in the United States. Therefore, NHTSA considers the FARS to
be a better basis for decisionmaking than the regional studies and
casual surveys cited by some of the consumer safety groups. Based on
NHTSA's survey of 113 police accident reports from across the country,
NHTSA concludes that fatalities coded as underride are properly coded
and that virtually all of them involve PCI. It is possible that some
fatal accidents where some degree of underride occurred should have
been coded as PCI in the police accident reports or the FARS, but were
not. However, the FARS are the best data available.
The NASS, HSRI, and VSC (IIHS-sponsored) studies are inappropriate
indicators of the percentage of underride fatalities with PCI. The use
of non-census data such as NASS, which is based on a sample of tow-away
crashes, has the potential to build sampling error into the
conclusions. Problems with using these various studies are explained in
more detail in the FRE. The FRE also explains why it is inappropriate
to extrapolate the underride statistics from the atypical State of
California to the rest of the nation, as IIHS urges.
The agency believes that CRASH's comment that a rule including
single unit trucks would save 122 lives in 1995 is based on highly
optimistic assumptions. Their estimate is based on unrealistic
projections of the number of fatalities (685, compared to 423 in 1992),
a high underride rate from a United Kingdom study which may not be
applicable to the United States, and the 27 percent upper bound of
guard effectiveness range estimated in the Preliminary Regulatory
Evaluation.
NHTSA has expanded the scope of data considered in its FRE benefits
analysis, as suggested by CRASH and other consumer safety groups, but
the augmented data do not support their characterization of the
underride problem. NHTSA included the FARS data for the eleven years
from 1982 through 1992. In response to the comments from the consumer
safety
[[Page 2028]]
groups, NHTSA has taken parked trailers into account in the analysis of
benefits in the FRE. NHTSA has also expanded the number of police
accident reports it inspected to determine the ratio of single unit
trucks to trailers involved in parked underride accidents. NHTSA looked
at 60 selected police accident reports over a three year period to
determine this ratio. Figure IV-1A in the FRE demonstrates that the
underride problem for single unit trucks is not increasing, as CRASH
suggests, but is relatively static, as stated in the PRE. Therefore,
NHTSA believes that CRASH's extrapolations of average annual fatalities
to the rule's effective date are invalid. For reasons explained in the
FRE, the agency remains unpersuaded by the estimates of underride
percentage and the corresponding benefits suggested in CRASH's
comments.
Ford also questioned NHTSA's estimated level of benefits. Ford
stated that enhanced conspicuity, seat belt usage, and the reduction in
the number of alcohol-related crashes will also reduce the incidence of
underride-type crashes. Therefore, Ford doubts that reductions of
fatalities and injuries in the magnitude estimated by the agency could
be achieved solely by this rule. Ford also said that over the last ten
years private trailer fleets that do not depend on public docks have
lowered designs to increase productivity through use of small diameter,
low profile tires and low ride suspensions. Therefore, a 1,000 to 1,250
mm (40 to 50 in) high trailer chassis may no longer be typical, and
therefore the future benefits of rule may be inaccurate.
NHTSA agrees that all the factors cited by Ford will contribute to
the reduction in fatalities from underride. However, NHTSA has
accounted for the effects of the conspicuity rule in its FRE. Moreover,
the effectiveness of the new automatic restraint systems depends on the
prevention of PCI, because air bags need space to deploy. There may be
some reduction in underride crashes due to increased seat belt usage
and alcohol awareness, but such synergistic factors cannot be separated
out at this point because projections of seat belt and alcohol use are
difficult. NHTSA will assess analytically the effectiveness of this
standard in the future and will normalize these factors in the
analysis. Although lower chassis heights may now be more common in
private fleets, NHTSA disagrees with Ford's suggestion that the
standard trailer heights are no longer ``typical.'' NHTSA's data
indicate that the vast majority of trailer chassis are still set at the
1,000 to 1,250 mm (40 to 50 in) height to provide access to public
loading docks. The 1990/92 TTMA van trailer data indicate that 98
percent of floor heights range from 1,219 to 1,320 mm (48 to 52 in).
The agency considers it unlikely that loading dock heights will change
dramatically in the near future because standardization is very
important to the trucking industry and a large investment would be
required to change heights.
Volkswagen enclosed three studies of European accident statistics
showing reductions in fatalities of between 5 and 17 percent for the
European guards, and recommended harmonization with the European
standards.
NHTSA does not dispute the studies cited by Volkswagen on the
effectiveness of the European guard. However, NHTSA is not bound to
follow the European standard. NHTSA's rule should be about 10 to 25
percent effective and the requirements of this rule are slightly more
stringent than the European standard.
Yellow Freight System conducted a review of their 1991 accidents
and concluded that there was no safety benefit from the use of the
guards. It does not believe that any of its fatal accidents would have
been prevented by the upgraded guards.
Yellow Freight System provided no evidence to show that upgraded
guards on their trailers would not have prevented any fatalities during
1991. Even if it had, the particular experience of a single carrier
over a single year period would not be indicative of the extent of the
need for underride guards in the industry generally.
F. Lead Time
Most of the commenters supported the agency's proposal of a 24
month lead time. No commenter said that two years was insufficient. The
American Truck Dealers Division of the National Automobile Dealers
Association approved of the proposed lead time, stating that it will
minimize the impact of the rule on the industry. Mr. Robert Crail, a
trailer designer and manufacturer, indicated that two years would be
adequate. The TTMA also supported the two year lead time, based on the
requirements proposed in the SNPRM.
One commenter suggested that the proposed lead time was too long.
Mr. John Tomassoni recommended that the lead time be lowered to 1 year,
because only ``marginally more effort'' would be required to design,
produce, and install the required guards. According to Mr. Tomassoni,
this is because vehicle manufacturers are already producing and
installing ``geometrically compliant'' guards, or guards that meet the
configuration requirements of this rule, on 16 m (53 ft) trailers in
order to meet State requirements. Since the basic design shown in the
SNPRM has been available for some time, he believes that upgrading the
current guards to meet the strength requirements should not be
difficult.
While this may be a valid point for those manufacturers currently
producing geometrically compliant guards, establishing too short a lead
time period might create a competitive disadvantage for those
manufacturers who are not. Also, the agency wants to allow enough lead
time to permit engineers to produce innovative, highly efficient guard
designs, rather than forcing them to rush to market with an upgraded
version of the current design. Further, the agency notes that an energy
absorption requirement has been added in the final rule that Mr.
Tomassoni did not consider in suggesting that a year would be
sufficient lead time.
Therefore, NHTSA does not believe that a shorter lead time than two
years would be appropriate. Engineers will have to design guards and
rigid test fixtures, and the guards will have to be manufactured,
tested, and in some cases marketed. There is currently no industry in
the business of manufacturing underride guards for third parties,
although NHTSA anticipates that one may emerge to meet the demand
created by this rule. Smaller trailer manufacturers wishing to acquire
manufactured guards need time to work with the emerging guard
designers/manufacturers regarding their frame and chassis
configurations and appropriate attachment hardware. Because a
relatively low level of technology is needed, NHTSA believes that two
years will be sufficient time. Therefore, the two year lead time is
being retained in the final rule. Compliance will be required 24 months
from the date of publication of this rule in the Federal Register.
G. Miscellaneous Issues
1. Metric System Units
Section 5164 of the Omnibus Trade and Competitiveness Act (Pub. L.
100-418) and Executive Order 12770 direct Federal agencies to use the
metric system (SI, the International System of Units) where possible in
rulemakings. Therefore, the values that were proposed in English system
units in the SNPRM are adopted using SI units. To facilitate cross-
reference to the preceding notices, approximate English system
equivalent measurements follow the SI measurements in the preamble.
[[Page 2029]]
2. Federal Highway Administration Rulemaking on Underride Guards
Many commenters, mostly private citizens, requested that NHTSA make
this rule apply to existing trailers, thus requiring that the owners of
those trailers remove the FHWA-required guards and retrofit the
trailers with improved underride guards. The law firm of Lipman and
Katz, Mr. Byron Bloch, and many others requested that NHTSA mandate
retrofit of existing trucks.
NHTSA has no authority to issue such requirements. Authority to
regulate existing trucks rests with the Federal Highway Administration.
Some commenters realized this. The New York Attorney General said there
is no excuse for not coordinating with FHWA and arranging for a
parallel and simultaneous rulemaking by that agency for existing
trucks. The American Truck Dealers Division of the National Automobile
Dealers Association requested that NHTSA encourage FHWA to require
retrofit.
FHWA has worked with NHTSA to ensure that its standards are
compatible with the Federal Motor Vehicle Safety Standards whenever
possible. As part of this effort, FHWA will continue to adopt
appropriate sections of NHTSA's standards into the Federal Motor
Carrier Safety Regulations (FMCSR). FHWA is considering a rulemaking to
amend the FMCSR at 49 CFR 393.86, Parts and Accessories Necessary for
Safe Operation, to require vehicles which are subject to NHTSA's rear
impact guard requirements to maintain the devices. As part of that
rulemaking, FHWA will determine if retrofitting of existing vehicles
with rear impact guards should be required.
XII. Rulemaking Analyses and Notices
A. Executive Order 12866 (Federal Regulation) and Regulatory Policies
and Procedures
This rulemaking action was reviewed under Executive Order 12866.
The action has been determined to be ``significant'' under Executive
Order 12866 and under the Department of Transportation regulatory
policies and procedures because it concerns a matter in which there is
substantial public interest. The FRE for this rule describes the
economic and other effects of this rulemaking action in detail. A copy
of the FRE has been placed in the docket for public inspection.
The cost and benefit information for this rule can be summarized as
set forth below. Rear impact guards meeting the requirements of this
rule would cost approximately $128 to $148 per trailer or semitrailer.
This cost includes an incremental increase (above the cost of current
rear impact guards) of between $77 and $96 per guard to satisfy the
rear impact guard and rear impact protection requirements. An
additional estimated cost of $7.00 per trailer may be needed to
reinforce the frame of the trailer, depending on guard design. To
repair the horizontal member of the guard when damaged, NHTSA estimates
an incremental increase in lifetime maintenance/repair costs of $16.44.
An added lifetime present value fuel cost of approximately $23.05 is
estimated, based on the added mass of the guard (an incremental
increase of approximately 25 kg or 55 lbs). The added weight will also
cause a revenue loss due to payload displacement of $0.33 over the life
of the trailer. There will be an additional cost for compliance testing
of the guard (excluding the cost of the test fixture), which is
estimated to be between $1.16 and $1.46 per vehicle. The incremental
cost increase of the guard will be less than two percent of the trailer
retail cost. NHTSA estimates that the total consumer cost of the rule
will be about $11.9 to 13.7 million annually.
The agency estimates that 4 to 15 PCI fatalities will be eliminated
annually by this rule when it is in full effect and all vehicles to
which it is applicable are in compliance. The estimate of fatality
reduction is based on the number of passenger vehicle occupants killed
in PCI collisions. It is also based on an estimate that the rear impact
guard is 10 to 25 percent effective in reducing PCI fatalities. There
will also be non-PCI underride fatalities prevented but the agency was
unable to quantify them. NHTSA further estimates that 29 non-minor
injuries (AIS 2-5) and 145 minor injuries (AIS 1) would be prevented in
both PCI and non-PCI collisions.
B. Regulatory Flexibility Act
NHTSA has analyzed the potential impacts of this rule on small
entities under the Regulatory Flexibility Act and certifies that this
rule will have a significant economic impact on a substantial number of
small entities. NHTSA has described those possible impacts in the FRE,
which is, in part, a regulatory flexibility analysis.
The agency seeks to reduce the severity of underride crashes by
improving the design of the affected vehicle, the trailer or
semitrailer. Accordingly, trailer and semitrailer manufacturers will be
affected by the rule. Based on the 1994 AAMA Motor Vehicle Facts and
Figures, there were approximately 327 trailer and semitrailer
manufacturers in the U.S. in 1991, most of which are small
manufacturers (less than 500 employees). These manufacturers will be
required to produce each of their vehicles with a rear impact guard and
ensure that the guard is positioned within the specified distances from
the ground, the vehicle's sides, and the vehicle's rear extremity. If
the vehicle manufacturers obtain a guard from a supplier, they will
only have to install the guard in accordance with the installation
instructions provided with the guard. If the vehicle manufacturers
produce their own guards, they will have to ensure that the guards meet
the rear impact requirements for guards.
The agency has designed this rule to minimize the impact on small
businesses by issuing separate equipment and vehicle standards. This
issuance of two separate standards relieves small trailers
manufacturers of the necessity for testing their completed trailers.
Rear impact guard suppliers as well as vehicle manufacturers which
manufacture their own guards may test mount guards on a test fixture to
assess for compliance with the strength and energy absorption
requirements of the equipment standard. This compliance test option
minimizes the cost impact on small entities in a manner consistent with
the purposes of 49 U.S.C. Chapter 301.
C. Executive Order 12612 (Federalism)
Based on available information, the agency believes the federalism
implications of this rulemaking are minimal. Nearly all states require
underride protection guards for heavy trailers and semitrailers.
Further, most states require that the guards meet certain configuration
requirements, or that they be positioned in a certain location relative
to the rear and sides of the vehicle. The rule will preempt State
requirements for rear impact protection. However, the agency believes
that federalism implications will be minor because the guards required
by this rulemaking are not fundamentally different from those required
by State law. Several States including Michigan, North Carolina, New
York, and New Jersey require longer trailers 15 m (50 ft) to have
guards with the configuration required by this rulemaking. For
practical purposes, the only effect that this rulemaking would have in
these States is to require the guards to be tested and certified for
strength and energy absorption.
The agency has determined that this rulemaking does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. NHTSA believes that effective rear
[[Page 2030]]
impact protection measures can be implemented only at the national
level. Only vehicle manufacturers can produce trailers and semitrailers
with improved rear impact protection. The improvements required by this
rulemaking will cause vehicle manufacturers and operators to incur
costs that could affect their competitive position if compliance is
voluntarily implemented by some, but not all manufacturers. This
Federal rulemaking applies uniformly to all manufacturers and will
ensure that the competitive position of the manufacturers will not be
significantly affected by these safety improvements.
D. Preemptive Effect and Judicial Review
This final rule does not have any retroactive effect. Under 49
U.S.C. 30103(b), whenever a Federal motor vehicle safety standard is in
effect, a state may not adopt or maintain a safety standard applicable
to the same aspect of performance which is not identical to the Federal
standard. 49 U.S.C. 30161 sets forth a procedure for judicial review of
final rulemaking establishing, amending, or revoking Federal motor
vehicle safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceeding before
parties may file suit in court.
E. Paperwork Reduction Act
The labeling and installation instructions requirements associated
with this rule have been submitted to the Office of Management and
Budget (OMB) for approval in accordance with 44 USC chapter 35.
Administration: National Highway Traffic Safety Administration.
Title: Labeling and Installation Instructions Requirements for Rear
Impact Guards.
Need for Information: Labeling--Identification of guards as meeting
equipment standard for strength and energy absorption; Installation
Instructions--Ensure that obtained guards are properly installed.
Anticipated Use of information: Labeling--Routine trailer
inspection by FHWA; Installation Instructions--Installation of obtained
guards by vehicle manufacturers.
Frequency: Labeling--On occasion; Installation Instructions--On
occasion.
Burden Estimate: Labeling--7,500 hrs.; Installation Instructions--
2,000 hrs.
Average Burden Hours per Respondent: Labeling--25; Installation
Instructions--10.
For Further Information Contact: The Information Requirements
Division, M-34, Office of the Secretary of Transportation, 400 Seventh
St. SW, Washington DC 20590, (202) 366-4735.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber
products, Tires.
In consideration of the foregoing, 49 CFR Part 571 is amended as
follows:
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for part 571 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166;
delegation of authority at 49 CFR 1.50.
2. A new Sec. 571.223 is added to read as follows:
Sec. 571.223 Standard No. 223; rear impact guards.
S1. Scope. This standard specifies requirements for rear impact
guards for trailers and semitrailers.
S2. Purpose. The purpose of this standard is to reduce the number
of deaths and serious injuries that occur when light duty vehicles
collide with the rear end of trailers and semitrailers.
S3. Application. This standard applies to rear impact guards for
trailers and semitrailers subject to Federal Motor Safety Standard No.
224, Rear Impact Protection (Sec. 571.224).
S4. Definitions.
In this standard, directional terms such as bottom, center, height,
horizontal, longitudinal, transverse, and rear refer to directions
relative to the vehicle orientation when the guard is oriented as if it
were installed on a vehicle according to the installation instructions
in S5.5 of this section.
Chassis means the load supporting frame structure of a motor
vehicle.
Guard width means the maximum horizontal guard dimension that is
perpendicular to the longitudinal vertical plane passing through the
longitudinal centerline of the vehicle when the guard is installed on
the vehicle according to the installation instructions in S5.5 of this
section.
Horizontal member means the structural member of the guard that
meets the configuration requirements of S5.1.1 through 5.1.3 of
Sec. 571.224, Rear Impact Protection, when the guard is installed on a
vehicle according to the guard manufacturer's installation
instructions.
Hydraulic guard means a guard designed to use fluid properties to
provide resistance force to deformation.
Rear impact guard means a device installed on or near the rear of a
vehicle so that when the vehicle is struck from the rear, the device
limits the distance that the striking vehicle's front end slides under
the rear end of the impacted vehicle.
Rigid test fixture means a supporting structure on which a rear
impact guard can be mounted in the same manner it is mounted to a
vehicle. The rigid text fixture is designed to resist the forces
applied to the rear impact guard without significant deformation, such
that a performance requirement of this standard must be met no matter
how small an amount of energy is absorbed by the rigid test fixture.
S5. Requirements.
S5.1 Cross-Sectional Vertical Height. The horizontal member of each
guard shall have a cross sectional vertical height of at least 100 mm
at any point across the guard width. See Figure 1 of this section.
S5.2 Strength and Energy Absorption. When tested under the
procedures of S6 of this section, each guard shall comply with the
strength requirements of S5.2.1 of this section at each test location
and the energy absorption requirements of S5.2.2 of this section at
test location P3, as specified in S6.4 of this section. However, a
particular guard (i.e., test specimen) need not be tested at more than
one location.
S5.2.1 Guard Strength. The guard must resist the force levels
specified in S5.2.1 (a) through (c) of this section without deflecting
by more than 125 mm.
(a) A force of 50,000 N at test location P1 on either the left or
the right side of the guard as defined in S6.4(a) of this section.
(b) A force of 50,000 N at test location P2 as defined in S6.4(b)
of this section.
(c) A force of 100,000 N at test location P3 on either the left or
the right side of the guard as defined in S6.4(c) of this section.
S5.2.2 Guard Energy Absorption. A guard, other than a hydraulic
guard, shall absorb by plastic deformation within the first 125 mm of
deflection at least 5,650 J of energy at each test location P3. See
Figure 2 of this section.
S5.3 Labeling. Each guard shall be permanently labeled with the
information specified in S5.3 (a) through (c) of this section. The
information shall be in English and in letters that are at least 2.5 mm
high. The label shall be placed on the forward-facing surface of the
horizontal member of the guard, 305 mm inboard of the right end of the
guard.
(a) The guard manufacturer's name and address.
[[Page 2031]]
(b) The statement: ``Manufactured in ________'' (inserting the
month and year of guard manufacture).
(c) The letters ``DOT'', constituting a certification by the guard
manufacturer that the guard conforms to all requirements of this
standard.
S5.4 Guard Attachment Hardware. Each guard, other than a guard that
is to be installed on a vehicle manufactured by the manufacturer of the
guard, shall be accompanied by all attachment hardware necessary for
installation of the guard on the chassis of the motor vehicle for which
it is intended.
S5.5 Installation Instructions. The manufacturer of rear impact
guards for sale to vehicle manufacturers shall include with each guard
printed instructions in English for installing the guard, as well as a
diagram or schematic depicting proper guard installation. The
manufacturer of a rear impact guard for one of its own vehicles shall
prepare and keep a copy of installation procedures applicable to each
vehicle/guard combination for a period of one year from the date of
vehicle manufacture and provide them to NHTSA on request. The
instructions or procedures shall specify:
(a) Vehicles on which the guard can be installed. Vehicles may be
designated by listing the make and model of the vehicles for which the
guard is suitable, or by specifying the design elements that would make
any vehicle an appropriate host for the particular guard (e.g.,
vehicles with frame rails of certain spacing and gauge of steel).
(b) A description of the chassis surface to which the guard will be
attached, including frame design types with dimensions, material
thickness, and tire track width. This description shall be detailed
enough to permit the agency to locate and duplicate the chassis surface
during compliance testing.
(c) An explanation of the method of attaching the guard to the
chassis of each vehicle make and model listed or to the design elements
specified in the instructions or procedures. The principal aspects of
vehicle chassis configuration that are necessary to the proper
functioning of the guard shall be specified. If the chassis strength is
inadequate for the guard design, the instructions or procedures shall
specify methods for adequately reinforcing the vehicle chassis.
Procedures for properly installing any guard attachment hardware shall
be provided.
S6. Guard Test Procedures. The procedures for determining
compliance with S5.2 of this section are specified in S6.1 through S6.6
of this section.
S6.1 Preparation of Hydraulic Guards. For hydraulic guards, the
horizontal member of the guard is deflected in a forward direction
until the hydraulic unit(s) have reached the full extent of their
designed travel or 610 mm, whichever occurs first. The hydraulic units
are compressed before the application of force to the guard in
accordance with S6.6 of this section and maintained in this condition
throughout the testing under S6.6 of this section.
S6.2 Guard Installation for Strength and Energy Absorption Tests.
(a) The rear impact guard is attached to a test device.
(b) The test device for the compliance test will be whichever of
the following devices, if either was used, the manufacturer used as a
basis for its certification of the guard in S5.3(c) of this section. If
the manufacturer did not use one of these devices or does not specify a
device when asked by the agency, the agency may choose either of the
following devices--
(1) A rigid test fixture. In the case of testing on a rigid test
fixture NHTSA will consult the installation instructions or procedures
to determine the surface or structure that the guard is supposed to be
mounted to and mount it to the rigid test fixture in the same way.
(2) A complete trailer for which installation of the guard is
suitable, as provided in the manufacturer's installation instructions
or procedures required by S5.5 of this section. The trailer chassis is
secured so that it behaves essentially as a fixed object during the
test, such that the test must be passed no matter how little it moves
during the test.
(c) The guard is attached in accordance with the instructions or
procedures for guard attachment provided by the guard manufacturer for
that guard as required by S5.5 of this section.
S6.3 Force Application Device. The force application device
employed in S6.6 of this section consists of a rectangular solid made
of rigid steel. The steel solid is 203 mm in height, 203 mm in width,
and 25 mm in thickness. The 203 mm by 203 mm face of the block is used
as the contact surface for application of the forces specified in
S5.2.1 (a) through (c) of this section. Each edge of the contact
surface of the block has a radius of curvature of 5 mm plus or minus 1
mm.
S6.4 Test Locations. With the guard mounted to the rigid test
fixture or to a complete trailer, determine the test locations P1, P2,
and P3 in accordance with the procedure set forth in S6.4 (a) through
(c) of this section. See Figure 1 of this section.
(a) Test location P1 is the point on the rearmost surface of the
horizontal member of the guard that:
(1) Is located at a distance of \3/8\ of the guard width from the
vertical longitudinal plane passing through center of the guard;
(2) Lies on either side of the center of the guard's horizontal
member; and
(3) Is 50 mm above the bottom of the guard.
(b) Test location P2 is the point on the rearmost surface of the
horizontal member of the guard that:
(1) Lies in the longitudinal vertical plane passing through the
center of the guard's horizontal member; and
(2) Is 50 mm above the bottom of the guard.
(c) Test location P3 is any point on the rearmost surface of the
horizontal member of the guard that:
(1) Is not less than 355 mm and not more than 635 mm from the
vertical longitudinal plane passing through center of the guard;
(2) Lies on either the right or left side of the horizontal member
of the guard; and
(3) Is 50 mm above the bottom of the guard.
S6.5 Positioning of Force Application Device. Before applying any
force to the guard, locate the force application device such that:
(a) The center point of the contact surface of the force
application device is aligned with and touching the guard test
location, as defined by the specifications of S6.4 of this section.
(b) The longitudinal axis of the force application device passes
through the test location and is perpendicular to the transverse
vertical plane that is tangent to the rearmost surface of the guard's
horizontal member.
S6.6 Force Application. After the force application device has been
positioned according to S6.5 of this section, apply the loads specified
in S5.2.1 of this section. Load application procedures are specified in
the S6.6 (a) through (d) of this section.
(a) Using the force application device, apply force to the guard in
a forward direction such that the displacement rate of the force
application device is constant and not less than 1 mm and not more than
1.5 mm per second.
(b) If conducting a strength test to satisfy the requirement of
S5.2.1 of this section, the force is applied until the forces specified
in S5.2.1 of this section have been exceeded, or until the displacement
of the force application device has reached at least 125 mm, whichever
occurs first.
(c) If conducting a test to be used for the calculation of energy
absorption
[[Page 2032]]
levels to satisfy the requirement of S5.2.2 of this section, apply the
force to the guard until displacement of the force application device
has reached 125 mm. For calculation of guard energy absorption, the
value of force is recorded at least ten times per 25 mm of displacement
of the contact surface of the loading device. Reduce the force until
the guard no longer offers resistance to the force application device.
Produce a force vs. deflection diagram of the type shown in Figure 2 of
this section using this information. Determine the energy absorbed by
the guard by calculating the shaded area bounded by the curve in the
force vs. deflection diagram and the abscissa (X-axis).
(d) During each force application, the force application device is
guided so that it does not rotate. At all times during the application
of force, the location of the longitudinal axis of the force
application device remains constant.
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[GRAPHIC] [TIFF OMMITTED] TR24JA96.000
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[GRAPHIC] [TIFF OMMITTED] TR24JA96.001
BILLING CODE 4910-59-C
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3. A new Sec. 571.224 is added to read as follows:
Sec. 571.224 Standard No. 224; rear impact protection.
S1. Scope. This standard establishes requirements for the
installation of rear impact guards on trailers and semitrailers with a
gross vehicle weight rating (GVWR) of 4,536 kg or more.
S2. Purpose. The purpose of this standard is to reduce the number
of deaths and serious injuries occurring when light duty vehicles
impact the rear of trailers and semitrailers with a GVWR of 4,536 kg or
more.
S3. Application. This standard applies to trailers and semitrailers
with a GVWR of 4,536 kg or more. The standard does not apply to pole
trailers, low chassis vehicles, special purpose vehicles, wheels back
vehicles, or temporary living quarters as defined in 49 CFR 529.2
S4. Definitions.
Chassis means the load supporting frame structure of a motor
vehicle.
Horizontal member means the structural member of the guard that
meets the configuration requirements of S5.1 of this section when the
guard is installed on the vehicle according to the installation
instructions or procedures required by S5.5 of Sec. 571.223, Rear
Impact Guards.
Low chassis vehicle means a trailer or semitrailer having a chassis
that extends behind the rearmost point of the rearmost tires and a
lower rear surface that meets the configuration requirements of S5.1.1
through 5.1.3 of this section.
Outer or Outboard means away from the trailer centerline and toward
the side extremities of the trailer.
Rear extremity means the rearmost point on a vehicle that is above
a horizontal plane located 560 mm above the ground and below a
horizontal plane located 1,900 mm above the ground when the vehicle is
configured as specified in S5.1 of this section and when the vehicle's
cargo doors, tailgate, or other permanent structures are positioned as
they normally are when the vehicle is in motion. Nonstructural
protrusions such as taillights, rubber bumpers, hinges and latches are
excluded from the determination of the rearmost point.
Rounded corner means a guard's outermost end that curves upward or
forward toward the front of the vehicle, or both.
Side extremity means the outermost point on a vehicle's side that
is located above a horizontal plane 560 mm above the ground, below a
horizontal plane located 190 cm above the ground, and between a
transverse vertical plane tangent to the rear extremity of the vehicle
and a transverse vertical plane located 305 mm forward of that plane
when the vehicle is configured as specified in S5.1 of this section.
Non-structural protrusions such as taillights, hinges, rubber bumpers,
and latches are excluded from the determination of the outermost point.
Special purpose vehicle means a trailer or semitrailer having work-
performing equipment (including any pipe equipment that would hold
hazardous materials in transit and require rear-end protection under 49
CFR 178.345-8(d)) that, while the vehicle is in transit, resides in or
moves through the area that could be occupied by the horizontal member
of the rear underride guard, as defined by S5.1.1 through S5.1.3 of
this section.
Wheels back vehicle means a trailer or semitrailer whose rearmost
axle is permanently fixed and is located such that the rearmost surface
of tires of the size recommended by the vehicle manufacturer for the
vehicle on that axle is not more than 305 mm forward of the transverse
vertical plane tangent to the rear extremity of the vehicle.
S5. Requirements.
S5.1 Installation; vehicle configuration. Each vehicle shall be
equipped with a rear impact guard certified as meeting Federal Motor
Vehicle Safety Standard No. 223, Rear Impact Guards (Sec. 571.223).
When the vehicle to which the guard is attached is resting on level
ground, unloaded, with its full capacity of fuel, and with its tires
inflated and air suspension, if so equipped, pressurized in accordance
with the manufacturer's recommendations, the guard shall comply with
the requirements of S5.1.1 through S5.1.3 of this section. See Figure 1
of this section.
S5.1.1 Guard width. The outermost surfaces of the horizontal member
of the guard shall extend outboard to within 100 mm of the longitudinal
vertical planes that are tangent to the side extremities of the
vehicle, but shall not extend outboard of those planes. See Figure 1 of
this section.
S5.1.2 Guard height. The vertical distance between the bottom edge
of the horizontal member of the guard and the ground shall not exceed
560 mm at any point across the full width of the member.
Notwithstanding this requirement, guards with rounded corners may curve
upward within 255 mm of the longitudinal vertical planes that are
tangent to the side extremities of the vehicle. See Figure 1 of this
section.
S5.1.3 Guard rear surface. At any height 560 mm or more above the
ground, the rearmost surface of the horizontal member of the guard
shall be located as close as practical to a transverse vertical plane
tangent to the rear extremity of the vehicle, but no more than 305 mm
forward of that plane. Notwithstanding this requirement, the horizontal
member may extend rearward of the plane, and guards with rounded
corners may curve forward within 255 mm of the longitudinal vertical
planes that are tangent to the side extremities of the vehicle.
S5.2 Installation Requirements. Guards shall be attached to the
vehicle's chassis by the vehicle manufacturer in accordance with the
installation instructions or procedures provided pursuant to S5.5 of
Standard No. 223, Rear Impact Guards (Sec. 571.223). The vehicle must
be of a type identified in the installation instructions as appropriate
for the guard.
BILLING CODE 4910-59-P
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[GRAPHIC] [TIFF OMMITTED] TR24JA96.002
Issued on January 16, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-682 Filed 1-17-96; 4:42 pm]
BILLING CODE 4910-59-C
Complete official Federal Register PDF
FR Doc. 96-1155 Surface Transportation Board; Transfer of Regulations from the Interstate Commerce Commission to the Surface Transportation Board Pursuant to the ICC Termination Act of 1995
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Page 1842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1155]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
49 CFR Chapter X
[STB Ex Parte No. 525]
Surface Transportation Board; Transfer of Regulations from the
Interstate Commerce Commission to the Surface Transportation Board
Pursuant to the ICC Termination Act of 1995
AGENCY: Surface Transportation Board.
ACTION: Final rule.
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SUMMARY: Effective January 1, 1996, the ICC Termination Act of 1995
(the Act), abolished the Interstate Commerce Commission (the
Commission) and established within the Department of Transportation
(DOT) the Surface Transportation Board (the Board). The Act provides
that the Board shall perform a number of functions previously performed
by the Commission. The Act further provides that, with certain
exceptions, all regulations previously issued by the Commission shall
continue in effect according to their terms until modified or
terminated. The Board is therefore changing the name of the agency in
the heading of the chapter in which the Commission's (now the Board's)
regulations are issued, chapter X of subtitle B of title 49 of the Code
of Federal Regulations.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 927-5610. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: Effective January 1, 1996, the ICC
Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803, abolished
the Commission and established the Board within DOT. See Act sections 2
(effective date) and 101 (abolition of the Commission). See also 49
U.S.C. 701 (establishment of the Board within DOT), as added by Act
section 201(a).
The Act provides that, with certain exceptions, all regulations
previously issued by the Commission and in effect on January 1, 1996,
shall continue in effect according to their terms until modified,
terminated, superseded, set aside, or revoked in accordance with law by
the Board, any other authorized official, a court of competent
jurisdiction, or operation of law. See Act section 204(a).
The Act further provides that, except as otherwise provided in the
Act or in the amendments made thereby, the Board shall perform all
functions that, immediately prior to January 1, 1996, were functions of
the Commission or were performed by any officer or employee of the
Commission in the capacity as such officer or employee. See 49 U.S.C.
702, as added by Act section 201(a). See also 49 U.S.C. 721(a)
(authority of the Board to prescribe regulations), also as added by Act
section 201(a).
Because the regulations previously issued by the Commission are now
subject, for the most part, to the jurisdiction of the Board, the
Board, by the action taken here, is changing the name of the agency in
the heading of the chapter in which the Board's (formerly the
Commission's) regulations are issued, chapter X of subtitle B of title
49 of the Code of Federal Regulations. Because this action merely
reflects, and is required by, the enactment of the Act and will not
have an adverse effect on the interests of any person, this action will
be deemed to be effective as of January 1, 1996.
The Act makes numerous and substantial changes in subtitle IV of
title 49, United States Code, and the Board intends to proceed, as
expeditiously as its resources allow, to issue certain new regulations
required by the Act and to conform its old regulations to the changes
in the laws it administers. The actions taken in issuing new
regulations and in revising old regulations will be, to varying
degrees, substantive in nature. The action taken today, by contrast, is
ministerial in nature: it simply changes the name of the agency in the
heading of chapter X.
All persons referencing the chapter X regulations should be advised
that certain of these regulations will henceforth be administered, in
whole or in part, by the Secretary of Transportation. Such regulations
will ultimately be removed from this chapter. See 49 U.S.C. 13101 to
14914 (authority of the Secretary of Transportation to administer, in
part, 49 U.S.C. Subtitle IV, Part B), as added by Act section 103.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Decided: January 18, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and Board
Member Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, subtitle B of the Code of Federal
Regulations is amended by revising the heading for chapter X to read as
follows:
CHAPTER X--SURFACE TRANSPORTATION BOARD, DEPARTMENT OF TRANSPORTATION
[FR Doc. 96-1155 Filed 1-23-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-1047 North American Free Trade Agreement
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Page 1829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1047]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Parts 10, 12, 24, 123, 134, 162, 174, 177, 178, 181 and 191
[T.D. 95-68]
RIN 1515-AB33
North American Free Trade Agreement
AGENCY: Customs Service, Department of the Treasury.
ACTION: Final rule; correction.
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SUMMARY: This document makes a correction to the document published in
the Federal Register that adopted as a final rule, with some changes,
interim amendments to the Customs Regulations to implement the
preferential tariff treatment and other Customs-related provisions of
the North American Free Trade Agreement (NAFTA) and the North American
Free Trade Agreement Implementation Act. The correction concerns a
cross-reference citation within the final regulatory texts.
EFFECTIVE DATE: This correction is effective October 1, 1995.
FOR FURTHER INFORMATION CONTACT: Joyce Metzger, Office of Field
Operations (202-927-0792).
SUPPLEMENTARY INFORMATION:
Background
On September 6, 1995, Customs published in the Federal Register (60
FR 46334) T.D. 95-68 to adopt as a final rule, with some changes,
interim amendments to the Customs Regulations implementing the
preferential tariff treatment and other Customs-related provisions of
the North American Free Trade Agreement (NAFTA) and the North American
Free Trade Agreement Implementation Act, Public Law 103-182, 107 Stat.
2057. These final NAFTA implementing regulations took effect on October
1, 1995.
The changes to the interim NAFTA implementing regulations as
reflected in the September 6, 1995, final regulations included a
redesignation of paragraph (c) of Sec. 181.76 as paragraph (d).
However, in the first sentence of paragraph (e) of Sec. 181.76 of the
final regulations, the cross-reference to ``paragraph (c)'' was not
correspondingly modified to read ``paragraph (d)''. This document
corrects this oversight.
Correction of Publication
In the document published in the Federal Register as T.D. 95-68 on
September 6, 1995 (60 FR 46334), on page 46379, in the first column, in
Sec. 181.76(e), the reference to ``paragraph (c)'' in the first
sentence is corrected to read ``paragraph (d)''.
Dated: January 17, 1996.
Stuart P. Seidel,
Assistant Commissioner, Office of Regulations and Rulings.
[FR Doc. 96-1047 Filed 1-23-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-1013 Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1837-1838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1013]
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DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 2403]
Visas: Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended
AGENCY: Bureau of Consular Affairs, Department of State.
ACTION: Interim final rule, with request for comments.
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SUMMARY: The Violent Crime Control and Law Enforcement Act of 1994
created a new nonimmigrant visa classification by adding section
101(a)(15)(S) to the Immigration and Nationality Act. These regulatory
amendments establish standards for the issuance of nonimmigrant visas
under this classification.
DATES: Effective January 24, 1996. Written comments are invited and
must be received on or before March 25, 1996.
ADDRESSES: Written comments may be submitted, in duplicate, to the
Chief, Legislation and Regulations Division, Visa Services, Department
of State, Washington, D.C. 20522-0113, (202) 663-1204.
SUPPLEMENTARY INFORMATION: The Violent Crime Control and Law
Enforcement Act of 1994, Public Law 103-322, was signed by the
President on September 13, 1994. Section 130003 of the Act amended the
Immigration and Nationality Act by adding section 101(a)(15)(S), a new
nonimmigrant visa classification. This visa classification provides for
the admission into the United States of certain alien witnesses and
informants.
The first of two paragraphs of the new section 101(a)(15)(S)
provides for the admission of aliens determined by the Attorney General
to possess critical reliable information concerning a criminal
organization or enterprise. The alien must be willing to provide that
information to federal and/or state authorities, and the Attorney
General must determine that his/her presence is essential to the
success of an authorized criminal investigation or prosecution.
Pursuant to a new section 214(j)(i) of the INA also added by section
13003, no more than 100 visas are available in this category per fiscal
year.
The second paragraph of 101(a)(15)(S) provides for nonimmigrant
visas for aliens whom the Secretary of State and the Attorney General
jointly determine possess critical reliable information about a
terrorist organization, enterprise or operation, and who are willing to
provide or have provided such information to federal law enforcement
authorities, or a federal court, and who will be or have been placed in
danger as the result of providing such information. They must also be
eligible for an award under section 36(a) of the State Department's
Basic Authorities Act of 1956. Pursuant to the new section 214(j)(i) of
the INA referred to above, no more than 25 visas are available in this
category per fiscal year.
The spouse, married and unmarried sons and daughters, and parents
of aliens classified under subsection (S)(i) or (S)(ii) may be granted
derivative status, if the Attorney General (or in the case of (S)(ii),
the Secretary of State and the Attorney General jointly) consider it
appropriate.
The enactment of this section provides a new mechanism to admit
aliens into the U.S. as witnesses and informants. Under past law the
only means to admit such aliens were either in the B visa category or
under parole.
This visa classification requires the Attorney General in the case
of the first subsection and the Attorney General and the Secretary of
State in the case of the second subsection to determine that all the
statutory requirements are met prior to visa issuance. The Immigration
and Naturalization Service (INS) has promulgated extensive regulations
[60 FR 44260] on this classification, explaining how the law
enforcement agencies interact with the Attorney General in order to
meet the applicable legal requirements.
Under subsection (ii) of the S classification, the Secretary of
State and the Attorney General act jointly in determining the alien's
entitlement to classification. The initial stages of processing under
(S)(ii) lie with the Department of State. When a potential (S)(ii)
alien is identified, it must be determined that the alien is eligible
to receive a reward under section 36(a) of the State Department Basic
Authorities Act of 1956. The responsibility of carrying out this reward
program under section 36(a) of that Act is delegated by the Secretary
of State to the Assistant Secretary of State for Diplomatic Security.
Section 226 of Volume 12 of the Foreign Affairs Manual sets forth the
procedures established to carry out the requirements of section 36(a),
processing of cases through the rewards committee. Determination of
eligibility for receipt of a reward under section 36(a) made by the
rewards committee is certified to the Assistant Secretary of State for
Consular Affairs, to whom the Secretary has delegated the
responsibility to implement the visa function under the Immigration and
Nationality Act, which would necessarily include the recently added
section 101(a)(15)(S). Acting on behalf of the Assistant Secretary for
Consular Affairs, the Visa Office will then certify to the Attorney
General the alien's eligibility for classification under subsection
(s)(ii).
When determinations of entitlement to visa status under either
section (S)(i) or (S)(ii) are completed, the INS, on behalf of the
Attorney General, certifies such to the Visa Office which then
communicates with the relevant consular post. The consular officer will
process the visa application pursuant to guidance and instruction
provided by the Visa Office. A visa may be authorized for the period
necessary pursuant to the Attorney General's certification, but for a
period not to exceed the three year statutory limit.
The implementation of the numerical limitation, as well as the
adjustment of
[[Page 1838]]
status procedures, is addressed in the INS regulations, as that agency
bears the responsibility for administering those provisions.
Interim Final Rule
Law enforcement agencies need access to the benefits provided in
this legislation and, while the Department can administer the S visa on
the basis of the INA, without regulations, use of the S visa by law
enforcement agencies will be facilitated by prompt formulation of these
regulatory provisions and the guidance, controls, and structure they
afford. Moreover, given the unique characteristics of the S visa, as a
classification available in the discretion of the Attorney General or
Secretary of State for law enforcement and counter-terrorism purposes
only, this regulation does not pertain to a visa classification that
will be available to the general public. Prior notice and public
comment with respect to this rule are therefore impracticable,
unnecessary and contrary to the public interest. Under these
conditions, there is good cause under 5 U.S.C 553 to make the rule
effective upon publication, with public comments to be considered
thereafter.
In accordance with 5 U.S.C. 605(b) [Regulatory Flexibility Act], it
is certified that this rule does not have a ``significant adverse
economic impact'' on a substantial number of small entities. This rule
is exempt from E.O. 12866, but has been coordinated with the
Immigration and Naturalization Service because joint action of the
Secretary of State and the Attorney General is required under INA
101(a)(15)(S), as amended. The rule imposes no reporting or
recordkeeping action on the public requiring the approval of the Office
of Management and Budget under the Paperwork Reduction Act. This rule
has been reviewed as required by E.O. 12778 and is certified to be in
compliance therewith.
List of Subjects in 22 CFR Part 41
Aliens, Nonimmigrants, Passports and Visas, Witnesses and
Informants.
Accordingly, title 22, part 41 of the Code of Federal Regulations,
is amended as follows:
PART 41--[AMENDED]
1. The authority citation for part 41 is revised to read as
follows:
Authority: 8 U.S.C. 1104.
2. Part 41, Subpart I is amended by revising the heading to read as
follows:
Subpart I--Fiance(e)s and Other Nonimmigrants
3. A new Sec. 41.82 is added to read as follows:
Sec. 41.82 Certain Parents and Children of Section 101(a)(27)(I)
Special Immigrants [Reserved]
4. A new Sec. 41.83 is added to read as follows:
Sec. 41.83 Certain Witnesses and Informants.
(a) General. An alien shall be classifiable under the provisions of
INA 101(a)(15)(S) if:
(1) The consular officer is satisfied that the alien qualifies
under the provisions of that section; and
(2)(i) The consular officer has received verification from the
Department of State, Visa Office, that:
(A) in the case of INA 101(a)(15)(S)(i) the INS has certified on
behalf of the Attorney General that the alien is accorded such
classification, or
(B) in the case of INA 101(a)(15)(S)(ii) the Assistant Secretary of
State for Consular Affairs on behalf of the Secretary of State and the
INS on behalf of the Attorney General have certified that the alien is
accorded such classification;
(ii) and the alien is granted an INA 212(d)(1) waiver of any INA
212(a) ground of ineligibility known at the time of verification.
(b) Certification of S visa status. The certification of status
under INA 101(a)(15)(S)(i) by the Attorney General or of status under
INA 101(a)(15)(S)(ii) by the Secretary of State and the Attorney
General acting jointly does not establish that the alien is eligible to
receive a nonimmigrant visa.
(c) Validity of Visa. The period of validity of a visa authorized
on the basis of paragraph (a) of this section shall not exceed the
period indicated in the certification required in paragraph (b) and
shall not in any case exceed the period of three years.
Dated: December 6, 1995.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 96-1013 Filed 1-23-96; 8:45 am]
BILLING CODE 4710-06-P
Complete official Federal Register PDF
FR Doc. 96-1012 Visas: Regulations Pertaining to Both Nonimmigrants and Immigrants Under the Immigration and Nationality Act, as Amended
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1834-1837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1012]
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Parts 40, 41, 42, 43, 44, 45, and 47
[Public Notice 2311]
Visas: Regulations Pertaining to Both Nonimmigrants and
Immigrants Under the Immigration and Nationality Act, as Amended
AGENCY: Bureau of Consular Affairs, DOS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On March 4, 1995, the President, as part of the
Administration's regulatory reinvention initiative, directed all heads
of departments and agencies, inter alia, to conduct a page-by-page
review of all regulations and to ``eliminate or revise those that are
outdated or otherwise in need of reform.'' (Memorandum for Heads of
Departments and Agencies, Regulatory Reinvention Initiative, March 4,
1995.) In response, the Visa Office of the Department of State has
undertaken a review of its visa regulations to determine whether they
may be eliminated, shortened, or rewritten in a more understandable
fashion. This final rule reflects the first publication of changes to
22 CFR, Chapter I being made as a result of this review.
EFFECTIVE DATE: January 24, 1996.
FOR FURTHER INFORMATION CONTACT: Stephen K. Fischel, Chief, Legislation
and Regulations Division, Visa Office, (202) 663-1204.
SUPPLEMENTARY INFORMATION: The President has directed each agency to
undertake a review of its regulations for the purpose of reducing the
regulations or, when possible, rendering them more readable and
comprehensible. The Visa Office of the Department of State has engaged
in a thorough line-by-line review of all visa related regulations in
parts 40 through 45 and part 47 of Title 22 of the Code of Federal
Regulations. As a result, the Visa Office is proposing various
amendments to the regulations consistent with the President's
directive. The Visa Office is also using this opportunity to make other
necessary changes to the regulations. The Visa Office will be
publishing the proposed changes in a series of separate publications.
Updating
Several regulations were originally crafted to address time-limited
circumstances under the law. With the passage of time or as the result
of the enactment of technical corrections, these provisions have become
moot. Consequently, pertinent amendments are made to the following
sections:
Part 40: Secs. 40.1(h), 40.1(m), 40.51(a) and (c) and 40.52.
Part 41: Secs. 41.11(a) and (b); 41.12; and 41.42(b)(1).
Part 42: Secs. 42.31(c); 42.52(a); 42.54; 42.55(a); and 42.74(b).
This rule also repeals Parts 43; 44 and 47.
S Visa
This rule assigns visa symbols to the visa classifications created
by the provisions of section 130003 of Pub. L. 103-322 which concerns
aliens who supply to the U.S. critical information relating to
terrorism and criminal organizations or enterprises. This rule revises
section 41.12 to reflect the existence of these new nonimmigrant
classifications and to provide the appropriate visa symbols.
Terminated Programs
The Immigration Reform and Control Act of 1986 (Pub. L. 99-603),
the Immigration Amendments Act of 1988 (Pub. L. 100-658), and the
Immigration Act of 1990 (Pub. L. 101-649) created several temporary
immigrant classifications. The following parts are being repealed by
this rule since these programs have terminated with the passage of
time: Part 43 which implemented the FY 1987-FY 1988 Nonpreference
Program under sec. 314 of Pub. L. 99-603 (commonly known as the NP-5
Program), and its successor, the FY 1992-1994 Diversity Transitional
Visa Program under sec. 132 of Pub. L. 101-649 (commonly known as the
AA-1 Program); Part 44 which implemented the FY 1990-1991 Immigrant
Program under sec. 3 of Pub. L. 100-658 (commonly known as the OP-1
program); and Part 47 which implemented the FY 1991-1993 Transitional
Program for Displaced Tibetans, sec. 134 of Pub. L. 101-649.
Transitional Visas for Legalized Aliens
Sec. 112 of the Immigration Act of 1990 (Pub. L. 101-649) provided
transitional immigrant visa numbers for legalized aliens in FY 1992-
1994. As this provision lapsed, the following sections are amended to
remove any reference to the transitional provisions: Secs. 42.31(c)
42.52(a), 42.54, 42.55(a) and 42.74(b).
Miscellaneous Provisions
Several other sections of 22 CFR have been amended to reflect
changes in the law. Sec. 40.1(h) is amended to accord immigrant visa
status under INA 203(b), the Diversity Program. It is also edited for
clarity. As the Immigration Act of 1990 (Pub. L. 101-649) imposed
different effective dates for various subtitles of the Act, both
Sec. 40.1(m) and Sec. 40.51(a) and (c) were written to conform with
those variances in effective dates. They are now edited to remove any
reference to such dates. Lastly, Sec. 41.41(b)(1) has been amended to
remove the reference to the obsolete Form I-551.
Typographical Corrections
Previous issues of the Federal Register contained typographical
errors which are being corrected in this rule. On page 21211 in the
issue of May 7, 1991, in the third column under paragraph (b) of the
regulation at Sec. 40.63(b), ``hereunder'' should have read
``thereunder.'' In the same publication on page 21212 in the second
column under paragraph (a)(5) of the regulation at Sec. 40.101,
``therefore'' should have read ``therefor.'' In the July 2, 1991 issue,
on page 30428 in the first column under Sec. 41.1, the reference to
``INA 212(a)(i)(I)'' in the introductory paragraph should have read
``INA 212(a)(7)(B)(i)(I), (i)(II),''and under Sec. 41.1(a) there should
have been a comma following the words ``permanent residence.'' Finally
in the first column of the July 17, 1991 issue, on page 32507 under
Sec. 45.5(e), the word ``position'' in the fourth line should have read
``petition.''
The 1995 edition of 22 CFR contains the following typographical
errors: in Sec. 41.3(d) the word ``consulat'' should be ``consular'';
in Sec. 42.63(a)(2) the word ``custory'' should read ``custody''; in
Sec. 42.72(e) the parentheses around the ``(Pub. L. 101-649)'' should
be removed; and in Sec. 42.82(g)(1) the ``e'' should be removed from
the word ``therefore''. On page 42611 in the November 5, 1987 issue in
the third column under Sec. 41.113, the citation ``INA 101(a)(3)''
should read ``INA 101(a)(30).'' This rule
[[Page 1835]]
also makes the corrections to these typographical errors.
Final Rule
Because this rule contains no substantive changes to 22 CFR, it has
been determined that notice and public comment are unnecessary. This
rule, therefore, meets the good cause exception under 5(b)(B) and is
being published as a final rule.
This rule is not considered to have a significant impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. This rule imposes no reporting or record
keeping requirements on the public requiring the approval of the Office
of Management and Budget under the Paperwork Reduction Act.
This rule has been reviewed as required by E.O. 12778 and certified
to be in compliance therewith. It is exempt from E.O. 12866 but has
been reviewed and found to be consistent therewith.
List of Subjects in 22 CFR Parts 40, 41, 42, 43, 44, and 47
Aliens, Nonimmigrants, Immigrants, Visas and passports.
Final Regulations
In view of the foregoing, under the authority at 8 U.S.C. 1104,
title 22 of the Code of Federal Regulations subchapter E--parts 40, 41,
and 42 are amended to read as follows and, under the authority of
sections 132, 133, and 134 of Pub. L. 101-649, 104 Stats. 5000 and
5001, parts 43, 44, and 47 are removed and reserved.
PART 40--[AMENDED]
1. The authority citation for part 40 continues to read:
Authority: 8 U.S.C. 1104.
Sec. 40.9 [Removed and reserved]
2. Part 40 is amended by removing and reserving section 40.9 of
subpart A--General Provisions of subchapter E--VISAS.
3. In Sec. 40.1 paragraphs (h)(2) and (3), and (m) are revised and
paragraph (h)(4) is added to read as follows:
Sec. 40.1 Definitions.
* * * * *
(h) * * *
(2) Has satisfied the consular officer as to entitlement to special
immigrant status under INA 101(a)(27) (A) or (B);
(3) Has been selected by the annual selection system to apply under
INA 203(c); or
(4) Is an alien described in Sec. 40.51(c).
* * * * *
(m) Not subject to numerical limitation means that the alien is
entitled to immigrant status as an immediate relative within the
meaning of INA 201(b)(2)(i), or as a special immigrant within the
meaning of INA 101(a)(27) (A) and (B), unless specifically subject to a
limitation other than under INA 201(a), (b), or (c).
4. Section 40.51 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 40.51 Labor certification.
(a) INA 212(a)(5) applicable only to certain immigrant aliens. INA
212(a)(5)(A) applies only to immigrant aliens described in INA
203(b)(2) or (3) who are seeking to enter the United States for the
purpose of engaging in gainful employment.
* * * * *
(c) Labor certification not required in certain cases. A spouse or
child accompanying or following to join an alien spouse or parent who
is a beneficiary of a petition approved pursuant to INA 203(b)(2) or
(3) is not considered to be within the purview of INA 212(a)(5).
5. Section 40.52 is revised to read as follows:
Sec. 40.52 Unqualified physicians.
INA 212(a)(5)(B) applies only to immigrant aliens described in INA
203(a) (2) or (3).
6. Section 40.63 is amended by revising paragraph (b) to read as
follows:
Sec. 40.63 Misrepresentation
* * * * *
(b) Misrepresentation in application under Displaced Persons Act or
Refugee Relief Act. Subject to the conditions stated in INA
212(a)(6)(c)(i), an alien who is found by the consular officer to have
made a willful misrepresentation within the meaning of section 10 of
the Displaced Persons Act of 1948, as amended, for the purpose of
gaining admission into the United States as an eligible displaced
person, or to have made a material misrepresentation within the meaning
of section 11(e) of the Refugee Relief Act of 1953, as amended, for the
purpose of gaining admission into the United States as an alien
eligible thereunder , shall be considered ineligible under the
provisions of INA 212(a)(6)(C).
* * * * *
7. Section 40.101 is amended by revising paragraph (a)(5) to read
as follows:
Sec. 40.101 Failure of application to comply with INA.
(a) Refusal under INA 221(g). The consular officer shall refuse an
alien's visa application under INA 221(g)(2) as failing to comply with
the provisions of INA or the implementing regulations if:
(1) * * *
(5) The necessary fee is not paid for the issuance of the visa or,
in the case of an immigrant visa, for the application therefor;
(6) * * *
PART 41--[AMENDED]
8. The authority citation for part 41 continues to read:
Authority: 8 U.S.C. 1104.
9. Section 41.1 is amended by revising the introductory text and
paragraph (a) to read as follows:
Sec. 41.1 Exemption by law or treaty from passport and visa
requirements.
Nonimmigrants in the following categories are exempt from the
passport and visa requirements of INA 212(a)(7)(B)(i)(I), (i)(II):
(a) Alien members of the U.S. Armed Forces. An alien member of the
U.S. Armed Forces in uniform or bearing proper military identification,
who has not been lawfully admitted for permanent residence, coming to
the United States under official orders or permit of such Armed Forces
(Sec. 284, 86 Stat. 232; 8 U.S.C. 1354).
* * * * *
10. Section 41.3 is amended by revising paragraph (d) to read as
follows:
Sec. 41.3 Waiver by joint action of consular and immigration officers
of passport and/or visa requirements.
* * * * *
(d) Emergent circumstances; visa waiver. An alien well and
favorably known at the consular office, who was previously issued a
nonimmigrant visa which has expired, and who is proceeding directly to
the United States under emergent circumstances which preclude the
timely issuance of a visa.
* * * * *
11. Section 41.11(a) and (b)(1) are revised to read as follows:
Sec. 41.11 Entitlement to nonimmigrant status.
(a) Presumption of immigrant status and burden of proof. An
applicant for a nonimmigrant visa, other than an alien applying for a
visa under INA 101(a)(15) (H)(i) or (L), shall be presumed to be an
immigrant until the consular officer is satisfied that the alien is
entitled to a nonimmigrant status described in INA 101(a)(15) or
otherwise established by law or treaty. The burden of proof is upon the
applicant to establish entitlement for nonimmigrant status and the type
of nonimmigrant visa for which application is made.
[[Page 1836]]
(b) Aliens unable to establish nonimmigrant status. (1) A
nonimmigrant visa shall not be issued to an alien who has failed to
overcome the presumption of immigrant status established by INA 214(b).
* * * * *
12. In section 41.12 the table removing the entries for ``S-1 and
S-2'' and adding new entries for ``S-7 and S-8'' to read as follows:
Sec. 41.12 Classification symbols.
* * * * *
------------------------------------------------------------------------
Symbol class Section of law
------------------------------------------------------------------------
* * * * *
S-7 Certain Aliens Supplying 101(a)(15)(S)(i).
Critical Information Relating to a
Criminal Organization or Enterprise.
S-8 Certain Aliens Supplying 101(a)(15)(S)(ii).
Critical Information Relating to
Terrorism.
------------------------------------------------------------------------
* * * * *
13. Section 41.42 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 41.42 Crew-list visas.
* * * * *
(b) Application. (1) A list of all alien crewmen serving on a
vessel or aircraft proceeding to the United States and not in
possession of a valid individual D visa or INS Form I-151, Alien
Registration Receipt Card, shall be submitted in duplicate to a
consular officer on INS Form I-418, Passenger List--Crew List, or other
prescribed forms. The duplicate copy of Form I-418 must show in column
(4) the date, city, and country of birth of each person listed and in
column (5) the place of issuance and the issuing authority of the
passport held by that person. For aircraft crewmen, the manifest issued
by the International Civil Aviation Organization (ICAO) or Customs Form
7507, General Declaration, may be used in lieu of Form I-418 if there
is adequate space for the list of names.
* * * * *
14. Section 41.113 is amended by revising paragraph (k)(2)
introductory text to read as follows:
Sec. 41.113 Procedures in issuing visas.
* * * * *
(k) * * *
(2) Is the holder of an official identity card which has been
issued for participation in such Games under the Olympic Rules Bylaws,
which includes the signature of a competent authority of the
participating government and the assurance of that government's
recognition of the card for re-entry by the bearer for an additional
period of six months beyond the expiration date of the card, and which
otherwise meets the requirements of sections 101(a)(30) and
212(a)(7)(B)(i)(I) of the Immigration and Nationality Act, a stamp
consisting of:
* * * * *
PART 42--[AMENDED]
15. The authority citation for Part 42 continues to read:
Authority: 8 U.S.C. 1104.
Sec. 42.31 Family-sponsored immigrants.
16. Section 42.31 is amended by removing paragraph (c).
17. Section 42.52 is amended by revising paragraph (a) to read as
follows:
Sec. 42.52 Post records of visa applications.
(a) Waiting list. Records of individual visa applicants entitled to
an immigrant classification and their priority dates shall be
maintained at posts at which immigrant visas are issued. These records
shall indicate the chronological and preferential order in which
consideration may be given to immigrant visa applications within the
several immigrant classifications subject to the numerical limitations
specified in INA 201, 202, and 203. Similar records shall be kept for
the classes specified in INA 201(b)(2) and 101(a)(27) (A) and (B) which
are not subject to numerical limitations. The records which pertain to
applicants subject to numerical limitations constitute ``waiting
lists'' within the meaning of INA 203(e)(3) as redesignated by the
Immigration Act of 1990.
* * * * *
Sec. 42.54 Order of consideration.
18. Section 42.54 is amended by removing paragraph (b).
19. Section 42.55 is amended by revising paragraph (a) to read as
follows:
Sec. 42.55 Reports on numbers and priority dates of applications on
record.
(a) Consular officers shall report periodically, as the Department
may direct, the number and priority dates of all applicants subject to
the numerical limitations prescribed in INA 201, 202, and 203 whose
immigrant visa applications have been recorded in accordance with
Sec. 42.52(c)
* * * * *
20. Section 42.63 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 42.63 Application forms and other documentation.
(a) * * *
(2) Application of alien under 14 or physically incapable. The
application on Form OF-230 for an alien under 14 years of age or one
physically incapable of completing an application may be executed by
the alien's parent or guardian, or, if the alien has no parent or
guardian, by any person having legal custody of, or a legitimate
interest in, the alien.
* * * * *
21. Section 42.72 is amended by revising paragraph (e) introductory
text to read as follows:
Sec. 42.72 Validity of visas.
* * * * *
(e) Aliens entitled to the benefits of section 154(a) and (b) of
Pub. L. 101-649.
* * * * *
22. Section 42.74 is amended by revising paragraph (b) to read as
follows:
Sec. 42.74 Issuance of new or replacement visas.
* * * * *
(b) Replacement immigrant visa for an alien subject to numerical
limitation. An immigrant documented under INA 203(a), (b), or (c) or
under section 124 of the Immigration Act of 1990, who was or will be
unable to use the visa during the period of its validity because of
reasons beyond the alien's control and for which the alien is not
responsible, may be issued a replacement immigrant visa under the
original number during the same fiscal year in which the original visa
was issued (provided the number has not been returned to the
Department), if the consular officer then finds the alien qualified.
The alien must pay anew the statutory application and issuance fees.
Prior to issuing a replacement immigrant visa at a consular office
other than the one that issued the original visa, the consular officer
must also ascertain whether the original issuing office knows of any
reason why a replacement visa should not be issued. In issuing a visa
under this paragraph, the consular officer shall insert the word
``REPLACE'' on Form OF-155A, Immigrant Visa and Alien Registration,
before the word ``IMMIGRANT'' in the title of the visa.
* * * * *
23. Part 43, 44 and 47 are removed and reserved.
[[Page 1837]]
PART 43--[REMOVED AND RESERVED]
PART 44--[REMOVED AND RESERVED]
PART 47--[REMOVED AND RESERVED]
PART 45--[AMENDED]
24. The authority citation for part 45 continues to read as
follows:
Authority: 8 U.S.C. 1104; 8 U.S.C. 1153.
25. Section 45.5 is amended by revising paragraph (e) to read as
follows:
PART 45 VISAS: DOCUMENTATION OF IMMIGRANTS UNDER SECTION 124 OF
PUBLIC LAW 101-649.
Sec. 45.5 Redetermination of admissibility if visa validity extended.
* * * * *
(e) For the purposes of this section, ``qualifying position'' shall
include both the position occupied by the alien at the time the
petition in the alien's behalf was approved and any other position
within the petitioning entity's organization, regardless of
geographical location, which would otherwise meet the requirements for
approval of such a petition in the alien's behalf. For the purposes of
this section, qualifying employment shall mean any position in the
United States of the kind required for approval of such a petition.
Dated: December 15, 1995.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 96-1012 Filed 1-23-96; 8:45 am]
BILLING CODE 4710-06-P
Complete official Federal Register PDF
FR Doc. 96-1011 Visas: Regulations Pertaining to Nonimmigrants and Immigrants Under the Immigration and Nationality Act, as Amended
[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1832-1834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1011]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
Bureau of Consular Affairs
22 CFR Parts 40 and 41
[Public Notice 2312]
Visas: Regulations Pertaining to Nonimmigrants and Immigrants
Under the Immigration and Nationality Act, as Amended
AGENCY: Bureau of Consular Affairs, DOS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On March 4, 1995, the President, as part of the
Administration's regulatory reinvention initiative, directed all heads
of departments and agencies, inter alia, to conduct a page-by-page
review of all regulations and to ``eliminate or revise those that are
outdated or otherwise in need of reform.'' (Memorandum for Heads of
Departments and Agencies, Regulatory Reinvention Initiative, March 4,
1995.) In response, the Visa Office of the Department of State has
undertaken a review of its visa regulations to determine whether they
may be eliminated, shortened, or rewritten in a more understandable
fashion.
EFFECTIVE DATES: January 24, 1996.
FOR FURTHER INFORMATION CONTACT: Stephen K. Fischel, Chief, Legislation
and Regulations Division, Visa Office, (202) 663-1204.
SUPPLEMENTARY INFORMATION: The President has directed each agency to
undertake a review of its regulations for the purpose of reducing the
regulations or, when possible, rendering them more readable and
comprehensible. The Visa Office of the Department of State has engaged
in a thorough line-by-line review of all visa related regulations in
parts 40 through 45 and part 47 of Title 22 of the Code of Federal
Regulations. As a result, the Visa Office is proposing various
amendments to the regulations consistent with the President's
directive. The Visa Office is also using this opportunity to make other
necessary changes to the regulations. The Visa Office will be
publishing the proposed changes in a series of publications.
Editing
This rule makes editorial changes to two sections in 22 CFR Part 40
and to five sections in Part 41.
Part 40 Amendments
The amendment to Sec. 40.62 changes the section by incorporating
the statutory period of time one must
[[Page 1833]]
remain outside the U.S. following deportation by specific reference to
the statute rather than by repeating the statutory language which the
regulation currently does.
The amendment to Sec. 40.93 will ensure that it accurately reflects
INA 212(a)(9)(C) as amended by sec. 307 of the Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991 (Pub. L.
102-232) Dec. 12, 1991.
Part 41 Amendments
This rule amends Secs. 41.53, 41.54, 41.55, 41.56 and 41.57,
relating to H, L, O, P, and Q visas. As these business visa
classifications require the approval of a petition by the Immigration
and Naturalization Service, the Department's regulatory structure at 22
CFR part 41 is similar for each of these classifications. The
amendments shorten each regulation by making reference to official
evidence of approval of status by the INS rather than identifying
specific types of evidence, such as petitions, approval notices, etc.,
which reflect approval status.
Final Rule
Because the changes to 22 CFR made by this rule are editorial and
non substantive, it has, been determined that notice and public comment
are unnecessary. This rule, therefore, meets the good cause exception
under 5 U.S.C. 553(b)(B) and is being published as a final rule.
This rule is not considered to have a significant impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. This rule imposes no reporting or record
keeping requirements on the public requiring the approval of the Office
of Management and Budget under the Paperwork Reduction Act. This rule
has been reviewed as required by E.O. 12778 and certified to be in
compliance therewith. It is exempt from E.O. 12866 but has been
reviewed and found to be consistent therewith.
List of Subjects in 22 CFR Parts 40 and 41
Aliens, Nonimmigrants, Immigrants, Ineligibilities, Visas and
passports.
Proposed Regulations
In view of the foregoing, title 22 of the Code of Federal
Regulations subchapter E--parts 40, and 41 are amended to read as
follows.
PART 40--[AMENDED]
1. The authority citation for part 40 continues to read:
Authority: 8 U.S.C. 1104.
2. Part 40 is amended by revising Sec. 40.62 to read as follows:
Sec. 40.62 Certain aliens arrested and deported.
An alien who was arrested and deported from the United States under
INA 212(a)(6)(B) shall not be issued a visa unless the alien has
complied with the time limitations therein or has obtained permission
from the Immigration and Naturalization Service to reapply for
admission to the United States.
3. Section 40.93 is revised to read as follows:
Sec. 40.93 International child abduction.
An alien who would otherwise be ineligible under INA
212(a)(9)(C)(i) shall not be ineligible under such paragraph if the
U.S. citizen child in question is physically located in a foreign state
which is party to the Hague Convention on the Civil Aspects of
International Child Abduction.
PART 41--[AMENDED]
4. The authority citation for part 41 continues to read:
Authority: 8 U.S.C. 1104.
5. Part 41 is revised by amending paragraph (a) of Sec. 41.53 to
read as follows:
Sec. 41.53 Temporary Workers and Trainees.
(a) Requirements for H classification. An alien shall be
classifiable under INA 101(a)(15)(H) if:
(1) The consular officer is satisfied that the alien qualifies
under that section; and either
(2) With respect to the principal alien, the consular officer has
received official evidence of the approval by INS of a petition to
accord such classification or of the extension by INS of the period of
authorized entry in such classification; or
(3) The consular officer is satisfied the alien is the spouse or
child of an alien so classified and is accompanying or following to
join the principal alien.
* * * * *
6. Section 41.54 is amended by revising paragraph (a) to read as
follows:
Sec. 41.54 Intracompany transferees (executives, managers, and
specialists).
(a) Requirements for L classification. An alien shall be
classifiable under the provisions of INA 101(a)(15)(L) if:
(1) The consular officer is satisfied that the alien qualifies
under that section; and either
(2) In the case of an individual petition, the consular officer has
received official evidence of the approval by INS of a petition to
accord such classification or of the extension by INS of the period of
authorized stay in such classification; or
(3) In the case of a blanket petition, the alien has presented to
the consular officer official evidence of the approval by INS of a
blanket petition
(i) listing only those intracompany relationships and positions
found to qualify under INA 101(a)(15)(L) or
(ii) to accord such classification to qualified aliens who are
being transferred to qualifying positions identified in such blanket
petition; or
(4) The consular officer is satisfied the alien is the spouse or
child of an alien so classified and is accompanying or following to
join the principal alien.
* * * * *
7. Section 41.55 is amended by revising paragraph (a) introductory
text, (a)(1) and (2) to read as follows:
Sec. 41.55 Aliens with extraordinary ability.
(a) Requirements for O classification. An alien shall be
classifiable under the provisions of INA 101(a)(15)(O) if:
(1) The consular officer is satisfied that the alien qualifies
under the provisions of that section; and either
(2) With respect to the principal alien, the consular officer has
received official evidence of the approval by INS of a petition to
accord such classification or of the extension by INS of the period of
authorized stay in such classification; or
* * * * *
8. Section 41.56 is amended by revising paragraph (a) introductory
text, (a) (1) and (2) to read as follows:
Sec. 41.56 Athletes, artists, and entertainers.
(a) Requirements for P classification. An alien shall be
classifiable under the provisions of INA 101(a)(15)(P) if:
(1) The consular officer is satisfied that the alien qualifies
under the provisions of that section; and either
(2) With respect to the principal alien, the consular officer has
received official evidence of the approval by INS of a petition to
accord such classification or of the extension by INS of the period of
authorized stay in such classification; or
* * * * *
9. Section 41.57 is amended by revising paragraph (a)(2) and
paragraph (c) to read as follows, and by deleting paragraph (a)(3).
Sec. 41.57 International cultural exchange visitors.
(a) * * *
(2) The consular officer has received official evidence of the
approval by INS of a petition or the extension by INS of
[[Page 1834]]
the period of authorized stay in such classification.
* * * * *
(b) * * *
(c) Validity of Visa. The period of validity of a visa issued on
the basis of paragraph (a) of this section must not exceed the period
indicated in the petition, notification, or confirmation required in
paragraph (a)(2) of this section.
Dated: December 14, 1995.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 96-1011 Filed 1-23-96; 8:45 am]
BILLING CODE 4710-06-P
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