Bus Testing Program As Required GVWR Is Impractical, Noting That the by 49 U.S.C

13580 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules

DEPARTMENT OF TRANSPORTATION testing protocols to carry out the bus fact in the test report (which had been testing program authorized at 49 U.S.C. the policy up to that time), or (3) Federal Transit Administration 5318 and implemented by 49 CFR part declining to test a bus that exceeds its 665. On October 5, 2009, FTA published GAWR or GVWR when loaded to full 49 CFR Part 665 a Final Rule in the Federal Register (74 capacity. FR 51083) that incorporated brake FTA determined that declining to test [Docket No. FTA–2011–0015] performance and emissions tests into a vehicle whose GVW exceeds its RIN 2132–AB01 FTA’s bus testing program as required GVWR is impractical, noting that the by 49 U.S.C. 5318, as well as several entire purpose of the bus testing Bus Testing; Calculation of Average other non-statutory changes that will program is to carry out the statutory Passenger Weight and Test Vehicle improve the program, including the mandate of verifying that the bus can Weight establishment of protocols to determine withstand the rigors of regular transit the appropriate loading of vehicles service, and testing a bus up to its AGENCY: Federal Transit Administration during test procedures and addressing GVWR but no higher, despite the (FTA), DOT. buses that exceeded weight limits when inability to embark the equivalent of a ACTION: Notice of proposed rulemaking. fully loaded. full complement of passengers, is During the comment period leading to unrealistic and may not accurately SUMMARY: The Federal Transit the Final Rule, FTA received two reflect rush-hour operating conditions Administration (FTA) is proposing to comments outside the scope of the when every available seat is filled and amend its bus testing regulation to more notice recommending that FTA increase drivers commonly allow ‘‘crush loads’’ accurately reflect average passenger the simulated ballast weight from the of standees in the aisle. weights and actual transit vehicle loads. proposed 150 lbs per passenger Under FTA’s revised testing protocol, Specifically, FTA is proposing to change provided in the definitions of ‘‘gross buses are now ballasted with a fully the average passenger weight from 150 vehicle weight’’ and ‘‘seated load loaded passenger complement of seated lbs to 175 lbs. In addition, FTA is weight’’ (the value that had been in use and standee passengers during the gross proposing to change the floor space since the beginning of the program) to vehicle weight portion and with all occupied per standing passenger from an amount that more accurately reflects seats filled during the seated load 1.5 to 1.75 square feet, and updating the the changes to the average weight of weight portion of the testing because Structural Strength and Distortion test Americans over the last several decades. FTA believes data on how a bus procedures. FTA acknowledged that the suggestion performs under fully loaded conditions DATES: Comments must be received no was well taken, but noted that the is essential to the purchaser in later than May 13, 2011. Late-filed establishment of a more accurate supporting acquisition decisions, comments will be considered to the average passenger weight was of developing preventive maintenance extent practicable. Department-wide interest, and schedules, and budgeting for ADDRESSES: You may submit comments committed itself to initiate a new unscheduled maintenance. In addition, (identified by the agency name and DOT rulemaking to amend Part 665 only after purchasing a vehicle appropriate for Docket ID Number FTA–2011–0015) by consultations within the Department. actual operating conditions will lessen any of the following methods: FTA has consulted within the premature structural fatigue and assist • Federal eRulemaking Portal: Go to Department, and as a result of those in avoiding catastrophic failures caused http://www.regulations.gov and follow consultations, is issuing this NPRM. by overstressed and overworked the online instructions for submitting In its previous rulemaking action, structural and operational components, ensuring the availability of such comments. FTA made note of the fact that a number of buses tested at the Bus Testing Center vehicles for passenger service. • Mail: Docket Management Facility: had not been tested in their fully loaded This NPRM is based on modern U.S. Department of Transportation, 1200 condition (i.e., with all seats and scientific data. FTA’s earlier selection of New Jersey Avenue, SE., West Building, standee positions occupied) because the 150 pound passenger weight Ground Floor, Room W12–140, doing so would have caused their actual assumption was based on the number Washington, DC 20590–0001. weight to exceed either their gross established by FTA’s sister DOT mode, • Hand Delivery or Courier: West vehicle weight ratings (GVWR) or a front the National Highway Traffic Safety Building Ground Floor, Room W12–140, or rear gross axle weight rating (GAWR). Administration (NHTSA), in its 1200 New Jersey Avenue, SE., between Instead, buses were loaded to the calculation of the Gross Vehicle Weight 9 a.m. and 5 p.m. ET, Monday through maximum weight rating and a notation Rating at 49 CFR 567.4(g)(3). Although Friday, except Federal holidays. • was made in the vehicle’s final test NHTSA did not provide an explanation Fax: 202–493–2251. report. for this figure in its 1971 rulemaking FOR FURTHER INFORMATION CONTACT: For In its earlier NPRM, FTA noted that documents, NHTSA staff believes their technical information, Gregory Rymarz, the test data might not reflect the actual average was based on data derived from Bus Testing Program Manager, Office of performance of these buses in real-life the National Health Examination Survey Research, Demonstration, and service, particularly during rush hour for 1960–1962. That survey has been Innovation (TRI), (202) 366–6410, when operators frequently allow all continued by the Centers for Disease [email protected]. For legal seats and aisles to be filled without Control and Prevention (CDC) through information, Richard Wong, Office of regard to the GVWR or GAWR to avoid the National Health and Nutrition the Chief Counsel (TCC), (202) 366– leaving passengers behind at a stop. Examination Survey (NHANES). In its 0675, [email protected]. FTA sought comment on three possible October 22, 2008, National Health SUPPLEMENTARY INFORMATION: approaches for addressing this situation: Statistics Report (http://www.cdc.gov/ (1) Performing tests on the test track nchs/data/nhsr/nhsr010.pdf), the CDC’s Background (which is not a public roadway) with all National Center for Health Statistics The Federal Transit Administration seats and standee positions ballasted, (2) calculated a mean average weight of (FTA) is issuing a Notice of Proposed deleting ballast until the vehicle does 194.7 pounds for male adults 20 years Rulemaking (NPRM) to update its bus not exceed its GVWR and noting such of age and older, and a median weight

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of 188.8 pounds. For women 20 years of to the Bus Testing Center to undergo substantial direct compliance costs on age and older, the CDC calculated a additional testing using the new fully Indian tribal governments; and will not mean weight of 164.7 pounds, and a loaded weight procedures. Buses preempt tribal laws. Therefore, a tribal median weight of 155.8 pounds. required to undergo full or partial impact statement is not required. Based on the suggestions from the testing after the effective date would be D. Regulatory Flexibility Act and commenters and confirmation using the subjected to the new procedures. statistical NHANES data from the CDC, Executive Order 13272: Proper FTA believes that 175 pounds is an Implementation Period Consideration of Small Entities in appropriate average weight to assume FTA is proposing to delay the Agency Rulemaking for testing buses. This is also within the effective date of the final rule for one Under the Regulatory Flexibility Act range of average passenger weights used year after publication. FTA believes this of 1980 (5 U.S.C. 601 et seq.) and by other transportation modes with will give bus manufacturers adequate Executive Order 13272, FTA must regulatory authority such as the Federal time to review the advertised passenger consider whether a proposed rule would Aviation Administration’s 190 lb. capacities of their product lines, to have a significant economic impact on summer weight and 195 lb. winter identify chassis suitable for the a substantial number of small entities. weight passenger weight averages (See, advertised passenger loads, and if ‘‘Small entities’’ include small Advisory Circular 120–27E, ‘‘Aircraft necessary to redesign their vehicles to businesses, not-for-profit organizations Weight and Balance Control,’’ June 10, reduce passenger capacity and/or that are independently owned and 2005) and the United States Coast accommodate a heavier-duty chassis. operated and are not dominant in their Guard’s 185 lb Assumed Average FTA seeks comment regarding the fields, and governmental jurisdictions Weight Per Person (See, ‘‘Passenger adequacy of the phase-in period. with populations under 50,000. FTA does not expect this action will have a Weight and Inspected Vessel Stability Regulatory Analyses and Notices Requirements: Final Rule, 75 FR 78064, significant economic impact on a December 14, 2010). A. Statutory/Legal Authority for This substantial number of small entities. Because of the increase in passenger Rulemaking E. Executive Orders and DOT weight, FTA is also commensurately This rulemaking is issued under the Regulatory Policies and Procedures proposing to increase the assumed authority of 49 U.S.C. 5318 and 49 FTA has determined that this action dimensions for a standing passenger U.S.C. 1.51. from 1.5 square feet of free floor space is not considered a significant to 1.75 square feet of free floor space to B. Executive Order 13132: Federalism regulatory action under Executive Order acknowledge the expanding girth of the Executive Order 13132 requires 12866 and the Regulatory Policies and average passenger. FTA also seeks agencies to assure meaningful and Procedures of the Department of comments on this figure. timely input by State and local officials Transportation (44 FR 11032). Executive FTA wishes to emphasize that it is not in the development of regulatory Order 12866 requires agencies to proposing the increase to 175 pounds in policies that may have a substantial, regulate in the ‘‘most cost-effective order to ‘‘toughen’’ the testing protocol. direct effect on the States, on the manner,’’ to make a ‘‘reasoned Rather, this action is being proposed in relationship between the national determination that the benefits of the order to ensure that the Bus Testing government and the States, or on the intended regulation justify its costs,’’ protocols better reflect the actual loads distribution of power and and to develop regulations that ‘‘impose that buses are already carrying in responsibilities among the various the least burden on society.’’ Consistent service today. levels of government. This action has with Executive Order 13563 (76 FR To avoid conflicts with NHTSA’s been analyzed in accordance with the 3821, January 21, 2011), FTA has regulatory definition of gross vehicle principles and criteria contained in assessed the benefits of the NPRM weight in 49 CFR part 567 and Executive Order 13132, and FTA has against potential costs, has attempted to elsewhere, FTA is proposing to remove determined that this action will not minimize any potential economic the definition of ‘‘gross weight’’ or ‘‘gross have sufficient federalism implications burdens, has based its determination on vehicle weight’’ from the definitions in to warrant additional consultation. FTA modern scientific data, and provides section 665.5 and inserting a new has also determined that this action will flexibility and freedom of choice for the definition, ‘‘fully loaded weight,’’ which not preempt any State law or State affected entities. incorporates the heavier and wider regulation or affect the States’ ability to The bus testing program itself is dimensions of an average bus rider. FTA discharge traditional governmental statutorily mandated and cannot be is also proposing to amend Appendix A, functions. eliminated as a means of minimizing an Section 5, replacing ‘‘gross weight’’ and economic burden. Under 49 U.S.C. C. Executive Order 13175: Consultation ‘‘gross vehicle weight’’ with ‘‘full load 5318, FTA funds may not be used to and Coordination With Indian Tribal weight’’ when conducting the structural acquire a new bus until a bus of that Governments integrity portions of the test. model has completed testing at a Executive Order 13175 requires statutorily prescribed facility, with Grandfathering agencies to assure meaningful and approximately 15 to 20 new bus models Similar to the approach taken by FTA timely input from Indian tribal completing testing every year. These in the October 2009 Final Rule, FTA is government representatives in the buses are tested in 4-, 5-, 7-, 10-, or 12- proposing that the date on which a bus development of rules that ‘‘significantly year service life categories as set forth in testing contract was signed will or uniquely affect’’ Indian communities 49 CFR 665.11(e). In preparing this determine the applicability of the new and that impose ‘‘substantial and direct NPRM, FTA reviewed the data from ten testing procedures. New bus models for compliance costs’’ on such recent test reports and found that one of which testing contracts were signed communities. FTA has analyzed this the buses exceeded their GVWR at their before the effective date of the final rule action under Executive Order 13175 and seated load weight using either the 150 and that continue to be produced believes that this will not have pound figure or the 175 pound figure. without major changes in any structure substantial, direct effects on one or more When tested at the gross vehicle load, or systems will not be required to return Indian tribes; will not impose i.e., carrying a full complement of

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seated and standing passengers, five bus thereby enhance the availability and any new information collection models would have exceeded their reliability of transit vehicles for the burdens. GVWR using the 150 pound figure, with riding public. I. Regulation Identifier Number (RIN) two more exceeding the GVWR using Although the result of this proposed the 175 pound figure. rule may have the effect of encouraging The U.S. DOT assigns a regulation Testing buses using the 175 pound transit agencies to modify their identifier number (RIN) to each figure will not result in any mandatory specifications on future procurements to regulatory action listed in the Unified additional costs on transit vehicle reflect projected passenger loads or Agenda of Federal Regulations. The manufactures or the public transit transit vehicle manufacturers to upgrade Regulatory Information Service Center operators that purchase such vehicles. vehicle components to more accurately publishes the Unified Agenda in April Rather, FTA is attempting to modify its reflect advertised service loads, this and October of each year. The RIN testing procedures to more accurately proposed new testing procedure rule number contained in the heading of this reflect a bus model’s expected usage will affect only data collected for those document may be used to cross- based on demonstrable scientific data, vehicles procured with FTA financial reference this action with the Unified namely, the 2008 CDC Report and the assistance and will not directly affect Agenda. most recent bus testing reports. vehicles acquired using private funds or J. Privacy Act In addition to providing more funds from Federal agencies other than accurate test data to assist buyers of FTA, although non-FTA purchasers are Anyone is able to search the public transit vehicles, the NPRM likely to be indirect beneficiaries electronic form for all comments attempts to maximize flexibility and through reviewing the publicly- received into any of our dockets by the freedom of choice for transit operators available bus testing reports prior to name of the individual submitting the who may refuse to carry standees to purchasing their vehicles and if vehicle comments (or signing the comment, if avoid exceeding a vehicle’s GVWR now manufacturers decide to use the FTA submitted on behalf of an association, that the vehicle’s carrying capacity has bus testing results as a basis to upgrade business, labor union, etc.). You may been identified in a test report, buyers components across their full product view the U.S. DOT Privacy Act may order vehicles with more durable line. Statement by visiting http:// components, or purchase a lighter-duty This action is not expected to docketsinfo.dot.gov/ or at 65 FR 19477 vehicle if they do not expect to carry (April 11, 2000). capacity passenger loads. Transit adversely affect any sector of the vehicle manufactures similarly have the economy. In addition, these changes List of Subjects in 49 CFR Part 665 flexibility and freedom of choice to will not interfere with any action taken or planned by another agency and will Buses, Grant programs— continue using the same components to transportation, Motor vehicle safety, meet buyers’ needs, or they may choose not materially alter the budgetary impact of any entitlements, grants, user Public transportation, Reporting and to upgrade individual components, such recordkeeping requirements. as chassis, wheels, tires, brakes, or fees, or loan programs. Accordingly, for the reasons stated in suspensions. F. Unfunded Mandates Reform Act of the preamble, 49 CFR part 665 is For those manufacturers that choose 1995 to upgrade their buses to a more robust proposed to be amended as follows: This action will not impose unfunded configuration, FTA estimates the cost of PART 665—BUS TESTING upgrading a vehicle’s components could mandates as defined by the Unfunded be as low as $2,500 per vehicle in the Mandates Reform Act of 1995 (Pub. L. 1. The authority citation for part 665 4- to 5-year paratransit-type vehicle 104–4, 109 Stat. 48). This action rule continues to read as follows: will not result in the expenditure by categories, between $5,000 and $7,000 Authority: 49 U.S.C. 5318 and 49 CFR 1.51. in the minibus categories, to as high as State, local, and tribal governments, in $25,000 per vehicle in the 10- to 12-year the aggregate, or by the private sector, of 2. Amend § 665.5 as follows: full-size bus categories. But as noted $128.1 million or more in any one year a. By removing the definition for above, any necessary upgrades are not (2 U.S.C. 1532). Gross weight, also gross vehicle weight; b. In the definition of ‘‘Seated load mandated by the NPRM, but rather, G. Executive Order 13211: Energy weight’’ by removing ‘‘150 pounds of would be negotiated between the buyer Effects and the manufacturer. FTA notes that ballast’’ and adding in its place ‘‘175 any cost increase due to a decision to FTA has analyzed this action under pounds of ballast’’; and upgrade components would be offset by Executive Order 13211, Actions c. By adding a definition for Fully FTA’s financial assistance program Concerning Regulations That loaded weight. which covers at least 80% of a vehicle’s Significantly Affect Energy Supply, The addition reads as follows: capital costs, minimizing any economic Distribution, or Use dated May 18, 2001, § 665.5 Definitions. impact of this rulemaking on public and determined that this is not a transit vehicles manufacturers and their significant energy action under that * * * * * customers. order, because it is not likely to have a Fully loaded weight means the curb This NPRM’s benefits outweigh significant adverse effect on the supply, weight of the bus plus passengers potential costs because the new testing distribution, or use of energy. Therefore, simulated by adding 175 pounds of protocol will allow transit agencies to a Statement of Energy Effects is not ballast to each seating position and 175 more accurately identify vehicles that required. pounds for each standing position are more likely to meet service life (assumed to be each 1.75 square foot of H. Paperwork Reduction Act expectations, advertised passenger free floor space). capacities, and actual loading Under the Paperwork Reduction Act * * * * * conditions. The acquisition of sturdier of 1995, no person is required to 3. Amend Appendix A to part 665 by vehicles will decrease maintenance and respond to a collection of information revising the introductory text and replacement costs, ensure that vehicles unless it displays a valid OMB control paragraphs a.(1) and (2) of section 5 to meet their anticipated service lives, and number. This action does not propose read as follows:

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Appendix A to Part 665—Tests To Be longline target catch requirements for Supporting documents, including the Performed at the Bus Testing Facility retaining BFT in the Northeast Distant draft Environmental Assessment, * * * * * Gear Restricted Area (NED); amend the Regulatory Impact Review, and Initial Atlantic tunas possession at sea and Regulatory Flexibility Analysis, are 5. Structural Integrity landing regulations to allow removal of available by sending your request to Two complementary structural integrity Atlantic tunas tail lobes; and clarify the Sarah McLaughlin at the mailing tests should be performed. Structural transfer at sea regulations for Atlantic address specified above. These strength and distortion tests should be tunas. This action is necessary to documents and others, such as the performed at the Bus Testing Center, and the implement recommendations of the Fishery Management Plans described structural durability test should be performed International Commission for the below, also may be downloaded from at the test track. Conservation of Atlantic Tunas (ICCAT), the HMS Web site at http:// a. Structural Strength and Distortion Tests as required by the Atlantic Tunas www.nmfs.noaa.gov/sfa/hms/. (1) A shakedown of the bus structure Convention Act (ATCA), and to achieve The public hearing locations are: should be conducted by loading and domestic management objectives under 1. Gloucester—NMFS, 55 Great unloading the bus with a distributed load the Magnuson-Stevens Fishery Republic Drive, Gloucester, MA 01930. equal to 2.5 times the fully loaded weight. Conservation and Management Act 2. Barnegat—Ocean County Library, The bus should then be unloaded and (Magnuson-Stevens Act). NMFS solicits 112 Burr Street, Barnegat, NJ 08005. inspected for any permanent deformation on written comments and will hold public 3. Manteo—Town Hall, 407 Budleigh the floor or coach structure. This test should hearings to receive oral comments on Street, Manteo, NC 27954. be repeated a second time, and should be these proposed actions. repeated up to one more time if the 4. Silver Spring—Crowne Plaza Hotel, permanent deflections vary significantly DATES: Written comments must be 8777 Georgia Avenue, Silver Spring, MD between the first and second tests. received on or before April 14, 2011. 20910. (2) The bus should be loaded to its fully The public hearing dates and times FOR FURTHER INFORMATION CONTACT: loaded weight, with one wheel on top of a are: Sarah McLaughlin, 978–281–9260. curb and then in a pothole. This test should 1. March 21, 2011, 3 to 5 p.m., SUPPLEMENTARY INFORMATION: be repeated for all four wheels. The test Gloucester, MA. Atlantic verifies: 2. March 22, 2011, 6:30 to 8:30 p.m., bluefin tuna, bigeye tuna, albacore tuna, (i) Normal operation of the steering Barnegat, NJ. yellowfin tuna, and skipjack tuna mechanism; and 3. March 28, 2011, 7 to 9 p.m., (hereafter referred to as ‘‘Atlantic tunas’’) (ii) Operability of all passenger doors, Manteo, NC. are managed under the dual authority of passenger escape mechanisms, windows, and 4. April 5, 2011, 5:15 to 7:15 p.m., the Magnuson-Stevens Act and ATCA. service doors. A water leak test should be Silver Spring, MD. ATCA authorizes the Secretary of conducted in each suspension travel Commerce (Secretary) to promulgate condition. ADDRESSES: You may submit comments, identified by ‘‘0648–BA65’’, by any one regulations, as may be necessary and * * * * * of the following methods: appropriate, to implement ICCAT Issued on: March 8, 2011. • Electronic Submissions: Submit all recommendations. The authority to Peter M. Rogoff, electronic public comments via the issue regulations under the Magnuson- Administrator. Federal eRulemaking Portal http:// Stevens Act and ATCA has been [FR Doc. 2011–5831 Filed 3–11–11; 8:45 am] www.regulations.gov. delegated from the Secretary to the • Fax: 978–281–9340, Attn: Sarah Assistant Administrator for Fisheries, BILLING CODE 4910–57–P McLaughlin. NOAA (AA). • Mail: Sarah McLaughlin, Highly Background Migratory Species Management DEPARTMENT OF COMMERCE Division, Office of Sustainable Fisheries On May 28, 1999, NMFS published in (F/SF1), NMFS, 55 Great Republic the Federal Register (64 FR 29090) final National Oceanic and Atmospheric Drive, Gloucester, MA 01930. regulations, effective July 1, 1999, Administration • Instructions: All comments received implementing the Fishery Management are a part of the public record and will Plan for Atlantic Tunas, Swordfish, and 50 CFR Part 635 generally be posted to http:// Sharks (1999 FMP). The 1999 FMP [Docket No. 110210132–1133–01] www.regulations.gov without change. included framework provisions to All Personal Identifying Information (for promulgate annual specifications for the RIN 0648–BA65 example, name, address, etc.) BFT fishery, in accordance with ATCA Atlantic Highly Migratory Species; voluntarily submitted by the commenter and the Magnuson-Stevens Act, and to Atlantic Bluefin Tuna Quotas and may be publicly accessible. Do not implement the annual recommendations Atlantic Tuna Fisheries Management submit Confidential Business of ICCAT. Since 1982, ICCAT has Measures Information or otherwise sensitive or recommended a Total Allowable Catch protected information. NMFS will of BFT, and since 1991, ICCAT has AGENCY: National Marine Fisheries accept anonymous comments (enter recommended specific limits (quotas) Service (NMFS), National Oceanic and N/A in the required fields, if you wish for the United States and other BFT Atmospheric Administration (NOAA), to remain anonymous). You may submit Contracting Parties. Commerce. attachments to electronic comments in On October 2, 2006, NMFS published ACTION: Proposed rule; request for Microsoft Word, Excel, WordPerfect, or in the Federal Register (71 FR 58058) a comments; notice of public hearings. Adobe PDF file formats only. To be final rule, effective November 1, 2006, considered, electronic comments must implementing the 2006 Consolidated SUMMARY: NMFS proposes to modify be submitted via the Federal Atlantic Highly Migratory Species Atlantic bluefin tuna (BFT) base quotas eRulemaking Portal http:// Fishery Management Plan (Consolidated for all domestic fishing categories; www.regulations.gov. Do not submit HMS FMP), which consolidated establish BFT quota specifications for electronic comments to individual management of all Atlantic HMS (i.e., the 2011 fishing year; reinstate pelagic NMFS staff. sharks, swordfish, tunas, and billfish)

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