[Federal Register Volume 85, Number 249 (Tuesday, December 29, 2020)]
[Proposed Rules]
[Pages 85571-85578]
[FR Doc No: 2020-27502]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 393 and 399

[Docket No. FMCSA-2019-0211]
RIN 2126-AC31

Parts and Accessories Necessary for Safe Operation; Rear Impact
Guards and Rear Impact Protection

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: FMCSA proposes to amend the Federal Motor Carrier Safety
Regulations (FMCSRs) to include rear impact guards on the list of items
that must be examined as part of the required annual inspection for
each commercial motor vehicle (CMV). In addition, FMCSA proposes to
amend the labeling requirements for rear impact guards, and to exclude
road construction controlled (RCC) horizontal discharge trailers from
the rear impact guard requirements, consistent with changes made by the
National Highway Traffic Safety Administration (NHTSA) to the
corresponding Federal Motor Vehicle Safety Standards (FMVSS). This
notice of proposed rulemaking (NPRM) responds to rulemaking petitions,
as well as a recommendation from the Government Accountability Office
(GAO).

DATES: Comments on this notice must be received on or before March 1,
2021.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2019-0211 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket?D=FMCSA-2019-0211. Follow the online
instructions for submitting comments.
     Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call<PHONE_NUMBER> or (202) 366-
9826 before visiting Dockets Operations.
     Fax:<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments.

FOR FURTHER INFORMATION CONTACT: Mr. Luke Loy, Vehicle and Roadside
Operations, Office of Carrier, Driver, and Vehicle Safety, MC-PSV,
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001,<PHONE_NUMBER><EMAIL_ADDRESS>If you
have questions on viewing or submitting material to the docket, contact
Dockets Operations,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this
NPRM (FMCSA-2019-0211), indicate the specific section of this document
to which comment applies, and provide a reason for each suggestion or
recommendation. You may submit your comments and material online or by
fax, mail, or hand delivery, but please use only one of these means.
FMCSA recommends that you include your name and a mailing address, an
email address, or a telephone number in the body of your document so
that FMCSA can contact you if there are questions regarding your
submission.
    To submit your comment online, go to https://www.regulations.gov/docket?D=FMCSA-2019-0211, click on the ``Comment Now!'' button, and
type your comment into the text box on the following screen. Choose
whether you are submitting your comment as an individual or on behalf
of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them
in an unbound format, on paper no larger than 8\1/2\ by 11 inches,
suitable for copying and electronic filing. If you submit comments by
mail and would like to know that they reached the facility, please
enclose a stamped, self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the
comment period and may make changes based on your comments. FMCSA may
issue a final rule at any time after the close of the comment period.

Confidential Business Information (CBI)

    CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure.
If your comments responsive to the interim rule contain commercial or
financial information that is customarily treated as private, that you
actually treat as private, and that is relevant or responsive to the
interim rule, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission that
constitutes CBI as ``PROPIN'' to indicate it contains proprietary
information. FMCSA will treat such marked submissions as confidential
under the Freedom of Information Act, and they will not be placed in
the public docket of the interim rule. Submissions containing CBI
should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis
Division, Office of Policy, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington DC 20590-0001.
Any comments FMCSA receives not specifically designated as CBI will be
placed in the public docket for this rulemaking.

B. Viewing Comments and Documents

    Supporting documents and any comments we receive on this docket may
be viewed at https://www.regulations.gov/docket?D=FMCSA-2019-0211. If
you do not have access to the internet, you may view the docket online
by visiting the Dockets Operations in Room W12-140 on the ground floor
of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC
20590-0001, between 9 a.m. and 5 p.m., e.t., Monday through Friday,
except Federal holidays. To be sure someone is there to help you,
please call<PHONE_NUMBER> or<PHONE_NUMBER> before visiting Dockets
Operations.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

D. Advance Notice of Proposed Rulemaking

    Under the Fixing America's Surface Transportation Act, Public Law
114-94 (FAST Act), FMCSA is required to publish an advance notice of
proposed rulemaking (ANPRM) or conduct a negotiated rulemaking ``if a
proposed rule is likely to lead to the promulgation of a major rule.''
49 U.S.C. 31136(g)(1). As this proposed rule is not likely to lead to
the promulgation of a major rule, the Agency is not required to issue
an

ANPRM or to proceed with a negotiated rulemaking.

II. Executive Summary

A. Purpose and Summary of Major Provisions

    Section 393.86 of the FMCSRs, ``Rear impact guards and rear end
protection,'' requires rear impact guards to be installed on most CMVs
to reduce the incidence of passenger compartment intrusion during
underride crashes in which a passenger vehicle strikes the rear of the
CMV. Regulations requiring rear impact guards have been in the FMCSRs
since 1952. The FMCSRs require that all CMVs be systematically
inspected, repaired, and maintained to ensure that all required parts
and accessories--including rear impact guards--are in safe and proper
operating condition at all times (section 396.3(a)(1)). Operation of a
CMV with a missing or noncompliant rear impact guard would be a
violation of the FMCSRs, precluding the issuance of a Commercial
Vehicle Safety Alliance (CVSA) inspection decal if the vehicle were to
be inspected.
    Among other things, the regulations require every CMV to be
inspected at least once every 12 months. A motor carrier may not use a
CMV unless each component identified in Appendix G of Subchapter B of
Chapter III of title 49, Code of Federal Regulations, ``Minimum
Periodic Inspection Standards,'' has passed the required annual
inspection. While the FMCSRs have required rear impact guards for more
than 65 years, they are not included on the list of components in
Appendix G that must be inspected during the annual CMV inspection.
This means that a vehicle can pass an annual inspection with a missing
or damaged rear impact guard.
    In response to petitions from the CVSA and Jerry and Marianne Karth
(``the Karths'' \1\); a recommendation included in GAO Report GAO-19-
264, ``Truck Underride Guards: Improved Data Collection, Inspections,
and Research Needed;'' \2\ and Congressional correspondence,\3\ this
rulemaking proposes to amend the FMCSRs to include rear impact guards
on the list of items that must be examined as part of the required
annual inspection for each CMV.
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    \1\ Copies of the petitions from CVSA and the Karths are
available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets Operations.
    \2\ A copy of the GAO Report is available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets
Operations.
    \3\ A copy of the letter is available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets
Operations.
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    In addition, NHTSA published two final rules on November 19, 2004,
relating to rear impact guards. First, NHTSA amended the labeling
requirement in FMVSS No. 223, ``Rear impact guards,'' to permit the
rear impact guard certification label to be mounted on either the
forward- or rearward-facing surface of the horizontal member of the
guard, provided the label does not interfere with the retroreflective
sheeting required by the FMVSS (69 FR 67660).\4\ Prior to the
amendment, the certification label was required to be mounted on the
forward-facing surface of the horizontal member, 12 inches inboard of
the right end of the guard. Second, NHTSA amended the applicability
section of FMVSS No. 224, ``Rear impact protection,'' to exclude RCC
horizontal discharge semitrailers from the requirements of the standard
(69 FR 67663).\5\ NHTSA concluded that installation of rear impact
guards on RCC horizontal discharge trailers would interfere with the
intended function of the trailers and was therefore impracticable due
to the unique design and purpose of those vehicles. However, neither of
NHTSA's November 2004 amendments to the FMVSS has been incorporated
into the corresponding rear impact requirements in section 393.86 of
the FMCSRs. FMCSA is proposing to amend the FMCSRs to adopt the changes
above to maintain consistency with FMVSS Nos. 223 and 224.
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    \4\ You may view the NHTSA rule online at https://www.federalregister.gov/documents/2004/11/19/04-25704/federal-motor-vehicle-safety-standards-rear-impact-guard-labels.
    \5\ You may view the NHTSA rule online at https://www.federalregister.gov/documents/2004/11/19/04-25703/federal-motor-vehicle-safety-standards-rear-impact-guards-final-rule.
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B. Costs and Benefits of Proposal

    The Agency does not expect this rulemaking to result in incremental
costs or benefits. Although rear impact guards are not currently among
the items that must be examined during annual inspections, 49 CFR
393.86 requires that certain CMVs operated in interstate commerce be
equipped with the devices and that they remain installed and in safe
and proper operating conditions at all times. Therefore, for the
purposes of assessing the potential economic impact of this rulemaking
on motor carriers, the Agency assumes compliance as part of the
baseline established by the existing FMCSRs in section 393.86. Neither
the labeling requirements that would result from this proposed rule nor
the exclusion of RCC horizontal discharge semitrailers from these
requirements would result in incremental costs or benefits.

III. Legal Basis for the Rulemaking

    This rulemaking is based on the authority of the Motor Carrier Act
of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 (1984 Act).
    The 1935 Act, as amended, provides that ``[t]he Secretary of
Transportation may prescribe requirements for--(1) qualifications and
maximum hours of service of employees of, and safety of operation and
equipment of, a motor carrier; and (2) qualifications and maximum hours
of service of employees of, and standards of equipment of, a private
motor carrier, when needed to promote safety of operation'' (49 U.S.C.
31502(b)).
    This NPRM would amend the FMCSRs to respond to petitions for
rulemaking. The adoption and enforcement of such rules is specifically
authorized by the 1935 Act. This proposed rulemaking rests squarely on
that authority.
    The 1984 Act provides concurrent authority to regulate drivers,
motor carriers, and vehicle equipment. It requires the Secretary to
``prescribe regulations on commercial motor vehicle safety.'' The
regulations shall prescribe minimum safety standards for CMVs. At a
minimum, the regulations shall ensure that: (1) CMVs are maintained,
equipped, loaded, and operated safely; (2) the responsibilities imposed
on operators of CMVs do not impair their ability to operate the
vehicles safely; (3) the physical condition of operators of CMVs is
adequate to enable them to operate vehicles safely; (4) the operation
of CMVs does not have a deleterious effect on the physical condition of
the operators; and (5) drivers are not coerced by motor carriers,
shippers, receivers, or transportation intermediaries to operate a
vehicle in violation of a regulation promulgated under 49 U.S.C. 31136
(which is the basis for much of the FMCSRs) or 49 U.S.C. chapters 51 or
313 (49 U.S.C. 31136(a)).
    This proposed rule concerns parts and accessories necessary for the
safe operation of CMVs, and the inspection, repair, and maintenance of
CMVs. It is based on section 31136(a)(1) because it deals with CMV
maintenance of rear impact guards. The NPRM does not address the
driver-centered requirements of sections 31136(a)(2)-(4). As the
amendments proposed by this rule are primarily technical changes that
clarify existing requirements and improve enforcement consistency,

FMCSA believes there will be stakeholder support for this initiative
and that coercion to violate the proposed amendments, which is already
prohibited by section 31136(a)(5), will not be an issue.
    Before prescribing any such regulations, FMCSA must consider the
``costs and benefits'' of any proposal (49 U.S.C. 31136(c)(2)(A) and
31502(d)). As discussed in greater detail in the ``Regulatory
Analyses'' section, FMCSA has determined that this proposed rule is not
a significant regulatory action.

IV. Background

A. History of Rear Impact Guard Requirements

    The first Federal requirements concerning heavy vehicle rear
underride protection were issued in 1952 by the Bureau of Motor
Carriers of the Interstate Commerce Commission (ICC). The regulation
required all heavy trucks, trailers, and semitrailers manufactured
after December 31, 1952, to be equipped with a rear-end protection
device designed to help prevent underride. The rule required that the
ground clearance of the underride guard be no more than 30 inches when
the vehicle is empty. The rule also required that the underride guard
be located no more than 24 inches forward of the rear of the vehicle,
and that it extend laterally to within 18 inches of each side. The
underride device was required to be ``substantially constructed and
firmly attached'' (17 FR 4445, May 15, 1952). The ICC's authority over
motor carrier safety was transferred to DOT by Section 6(e)(6)(C) of
the Department of Transportation Act (Pub. L. 89-670, 80 Stat. 931,
939-940, Oct. 15, 1966). The authority was delegated by the Secretary
to the Federal Highway Administration (FHWA).
    On January 24, 1996, NHTSA published a final rule creating FMVSS
Nos. 223 and 224 (61 FR 2004). The requirements apply to most trailers
and semitrailers with a gross vehicle weight rating of 10,000 pounds or
more, manufactured on or after January 26, 1998.
    FMVSS No. 223 specifies performance requirements that rear impact
guards must meet before they can be installed on new trailers or
semitrailers. It specifies strength and energy absorption requirements,
as well as test procedures that manufacturers and NHTSA will use to
determine compliance with the standard. The standard also requires the
guard manufacturer to permanently label the impact guard to certify
that it meets the requirements and to provide instructions on the
proper installation of the guard.
    FMVSS No. 224 requires that most new trailers and semitrailers with
a GVWR of 10,000 pounds or more be equipped with a rear impact guard
meeting the requirements of FMVSS No. 223. The guards must extend
laterally to within 4 inches of the sides of the trailer, have a ground
clearance of no more than 22 inches, and be placed as close as possible
to, but not more than 12 inches from, the rear of the vehicle. To
ensure that the guard will perform properly, the standard also requires
it to be mounted on the trailer or semitrailer in accordance with the
installation instructions provided by the guard manufacturer.
    On September 1, 1999, FHWA published a final rule amending the
FMCSRs to require trailers and semitrailers manufactured on or after
January 26, 1998, with a GVWR of 10,000 pounds or more, be equipped
with rear impact guards that meet the requirements of FMVSS No. 223.
The rear impact guards must be installed to ensure that the trailer or
semitrailer meets the rear end protection requirements of FMVSS No.
224. This rule was intended to ensure that the rear impact protection
requirements of the FMCSRs are consistent with the FMVSS (64 FR 47703).
    As stated previously, NHTSA published two final rules on November
19, 2004, relating to rear impact guards. NHTSA amended the labeling
requirement in FMVSS No. 223 to permit the rear impact guard
certification label to be mounted on either the forward- or rearward-
facing surface of the horizontal member of the guard (69 FR 67660), and
amended the applicability section of FMVSS No. 224 to exclude RCC
horizontal discharge semitrailers from the requirements of the standard
(69 FR 67663). However, neither of NHTSA's November 2004 amendments to
the FMVSS has been incorporated into the corresponding rear impact
requirements in section 393.86 of the FMCSRs.

B. History of Appendix G Requirements

    Section 210 of the 1984 Act required the Secretary of
Transportation to establish standards for the annual or more frequent
(i.e., periodic) inspection of all CMVs engaged in interstate or
foreign commerce (49 U.S.C. 31142(b)). In response, FHWA adopted new
section 396.17 on December 7, 1988, which requires all CMVs to be
inspected at least once every 12 months (53 FR 49380, as amended on
Dec. 8, 1989 (54 FR 50722)). The rule was based largely on (1) the CVSA
vehicle out-of-service criteria, and (2) the vehicle portion of the
FHWA National Uniform Driver-Vehicle Inspection Procedure (NUD-VIP).
The latter was used as the standard for successful completion of the
annual inspection, and the details of the required inspection were
spelled out in Appendix G to the FMCSRs, also promulgated by the final
rule. FHWA noted that utilization of the FHWA NUD-VIP would (1) provide
the necessary inspection-related pass/fail criteria for the periodic
inspection at a more stringent level than the vehicle out-of-service
criteria, and (2) provide the proper level of Federal oversight in
establishing and revising the criteria.

V. Discussion of Proposed Rulemaking

A. Rear Impact Guards in Appendix G

    Rear impact guards are not included on the list of items in
Appendix G that must be examined during the annual inspection required
by section 396.17. This means that a vehicle could pass the annual
inspection with a missing or damaged rear impact guard. However, the
operation of the vehicle with a missing or damaged rear impact guard
would be a violation of the FMCSRs, and according to CVSA policy, a
CVSA inspection decal would not be issued if the vehicle were
inspected.
    In its petition, CVSA requested that the Agency amend Appendix G to
include specific language regarding the inspection of rear impact
guards during annual inspections. The petition stated:

    A vehicle's rear impact guard/rear end protection is inspected
roadside as part of the North American Standard Inspection Program.
However, the majority of commercial motor vehicles do not come into
contact with an inspector on an annual basis . . .
    According to data available through FMCSA's Analysis and
Information Online web page, in fiscal year 2017 inspectors
document[ed] more than 2,300 violations related to rear impact
guards and rear end protection, more than half of which are for
components that are missing, damaged or improperly constructed.
Including rear impact guards and rear end protection in the periodic
inspection requirements in Appendix G will call additional attention
to this critical safety component and help ensure that each vehicle
is checked at least once a year, improving compliance and helping to
prevent fatalities and injuries when rear-end collisions occur.
Furthermore, including rear impact guards and rear end protection in
the periodic annual inspection standards will harmonize U.S.
regulations with those in Canada and Mexico, which include rear
impact guards and rear end protection as part of their annual
inspection programs.

    The Karths' petition requested that FMCSA ``Add underride guards to

Appendix G and 396.17 (Periodic Inspection),'' but did not provide any
supporting information.\6\
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    \6\ The Karths' petition also requested that FMCSA change the
definition of Out of Service Criteria to read as follows: ``A
vehicle(s) is placed out-of-service only when by reason of its
mechanical condition or loading it is determined to be so imminently
hazardous as to likely cause an accident or breakdown, or when such
condition(s) would likely contribute to loss of control of the
vehicle(s) by the driver, or to allow death and/or injuries from
truck underride (passenger compartment intrusion) upon collision.''
[Emphasis in original.] FMCSA notes that the North American Standard
Out-of-Service Criteria are developed and maintained by CVSA, and
are not part of the FMCSR. As such, any amendments to the Out-of-
Service criteria are outside the scope of this rulemaking.
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    In addition, several Senators asked GAO to review data on truck
underride crashes and information on underride guards. Between January
2018 and March 2019, GAO conducted a performance audit that included a
literature review and interviews with stakeholders familiar with
underride crashes and guards.
    GAO Report GAO-19-264, published in March 2019, examines (1) the
data that DOT reports on underride crashes, and (2) the development and
use of underride guard technologies in the United States. GAO analyzed
DOT's underride crash data for 2008 through 2017; reviewed NHTSA's
proposed regulations and research on new guard technologies (80 FR
78418, Dec. 16, 2015); and interviewed stakeholders including DOT
officials, industry and safety groups, and State officials.
    With respect to FMCSA, the GAO concluded that the lack of an annual
inspection requirement for rear impact guards potentially affects the
safety of the traveling public and FMCSA's ability to achieve its
safety mission. GAO stated that ``without explicitly including the
inspection of the rear guard in Appendix G, there is no assurance that
rear guards in operation will be inspected at least annually to ensure
they perform as designed to prevent or mitigate an underride crash.''
In its ``Recommendations for Executive Action,'' GAO stated:

    The Administrator of the Federal Motor Carrier Safety
Administration should revise Appendix G of the agency's regulations
to require that rear guards are inspected during commercial vehicle
annual inspections. (Recommendation 3)

    While the GAO review was being conducted, FMCSA received
Congressional correspondence urging the Agency to ``add `underride
guards' to the list of annual inspection items required [for] trucks
and trailers under current periodic inspection regulations.'' The
Senators stated:

    Requiring an annual inspection of rear underride guards, in
addition to the current list of items already checked during annual
inspections, would ensure trucks and trailers are complying with
regulations already on the books. Therefore, we ask that FMCSA
consider initiating a rulemaking to amend federal Minimum Periodic
Inspection Standards to include a subsection on ``underride
guards.'' Should you decide to move forward with this rulemaking, we
respectfully request that an inserted subsection be identical to the
already mandated minimum standards of rear impact guards and rear
end protection.

    FMCSA agrees that the failure of a motor carrier to properly
maintain an important safety feature such as a rear impact guard should
result in the vehicle failing the required annual inspection. Given
that rear impact guards have been included in part 393 for more than 65
years, and that part 396 requires all parts and accessories specified
in part 393--to include rear impact guards--to be in safe and proper
operating condition at all times, FMCSA assumes that the majority of
motor carriers currently inspect rear impact guards annually despite
the absence of an explicit requirement to do so in Appendix G.
According to FMCSA's Motor Carrier Management Information System
(MCMIS), out of approximately 5.8 million regulatory violations
identified during inspections in 2017, only approximately 2,400--or
about 0.041 percent--were rear impact guard violations.
    For these reasons, and as discussed in the Regulatory Analyses
section, the Agency believes that amending Appendix G to include a
review of rear impact guards and maintain consistency with part 393,
would result in only a de minimis economic impact. FMCSA proposes to
amend Appendix G to require rear impact guards to be inspected as part
of the annual inspection required under Sec.  396.17.

B. Rear Impact Guard Labeling

    NHTSA amended the labeling requirement in FMVSS No. 223 on November
19, 2004, to permit the rear impact guard certification label to be
mounted on either the forward- or rearward-facing surface of the
horizontal member of the guard, if the label does not interfere with
the retroreflective sheeting required by the FMVSS. Prior to the
amendment, the certification label was required to be mounted on the
forward-facing surface of the horizontal member, 12 inches inboard of
the right end of the guard. NHTSA decided to allow rear impact guard
manufacturers flexibility in determining where to place the label on
the horizontal member of the guard so that they can minimize exposure
to operational and environmental damage, while at the same time
ensuring that it is readily accessible for visual inspection. FMCSA
proposes to amend the labeling requirements in section 393.86(a)(6) to
be consistent with the changes made by NHTSA in 2004.

C. Applicability--RCC Horizontal Discharge Trailers

    Also on November 19, 2004, NHTSA amended the applicability section
of FMVSS No. 224 to exclude RCC horizontal discharge trailers from its
requirements. RCC horizontal discharge trailers are used to deliver
asphalt to road construction sites and gradually to discharge asphalt
mix into paving machines. Typically, the paving machine attaches to the
rear axle of the RCC horizontal discharge trailer via hydraulic arms,
and the edge of the trailer's conveyor belt extends over the paving
machine opening. A rear impact guard required by the FMVSS would
prevent the RCC horizontal discharge trailer from effectively
connecting with a paving machine. NHTSA concluded that installation of
rear impact guards on RCC horizontal discharge trailers would interfere
with the intended function of the trailers and therefore exempted them
from the standard.
    FMCSA proposes to amend (1) Sec.  393.5 to add a definition of road
construction controlled horizontal discharge trailer consistent with
the NHTSA definition in FMVSS No. 224, and (2) Sec.  393.86(a)(1) and
Sec.  393.86(b)(1) to make it clear that RCC horizontal discharge
trailers are not required to have a rear impact guard installed,
consistent with the amendments made by NHTSA in 2004.
    Although neither of NHTSA's November 2004 amendments was
incorporated into the rear impact requirements in Sec.  393.86, FMCSA
is not aware of any enforcement or compliance issues that have arisen
with respect to these items in the ensuing 15 years. As such, FMCSA
does not expect the proposed amendments to have any impact on motor
carriers.

VI. International Impacts

    The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, U.S. territories). Motor carriers
and drivers are subject to the laws and regulations of the countries in
which they operate, unless an international agreement states otherwise.
Drivers and carriers should be aware of the regulatory differences
among nations.

VII. Section-by-Section Analysis

A. Part 393--Parts and Accessories Necessary for Safe Operation

    Section 393.86(a)(1) (General requirements for trailers and
semitrailers manufactured on or after January 26, 1998).
    FMCSA proposes to amend this section by adding RCC horizontal
discharge trailers to the list of vehicles that are not required to
have a rear impact guard.
    Section 393.86(a)(6) (Certification and labeling requirements for
rear impact protection guards).
    FMCSA proposes to amend this section to clarify that the label may
be on the forward- or rear-facing surface of the horizontal member of
the guard, provided it does not interfere with the retroreflective
sheeting required by the FMVSS.
    Section 393.86(b)(1) (Requirements for motor vehicles manufactured
after December 31, 1952 (except trailers or semitrailers manufactured
on or after January 26, 1998)).
    FMCSA proposes to amend this section by adding RCC horizontal
discharge trailers to the list of vehicles that are not required to
have a rear impact guard.

B. Appendix G to Subchapter B of Chapter III (Minimum Periodic
Inspection Standards)

    FMCSA proposes to amend Appendix G by adding rear impact guards to
the list of items required to be inspected pursuant to section 396.17.

VIII. Regulatory Analyses

A. Executive Order 12866 (Regulatory Planning and Review as
Supplemented by Executive Order 13563 and DOT Regulations)

    The Office of Information and Regulatory Affairs determined that
this proposed rule is not a significant regulatory action under section
3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and
Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011),
Improving Regulation and Regulatory Review, and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. This rule is also not significant within the meaning of DOT
regulations (49 CFR 5.13(a)). Accordingly, the Office of Management and
Budget has not reviewed it under these Orders.
    In response to rulemaking petitions and a recommendation from the
GAO, FMCSA proposes to amend Appendix G to Subchapter B of Chapter III
in title 49 CFR. This amendment would add rear impact guards to the
list of items that must be examined as part of the required annual
inspection for each CMV.
    Section 393.86(a) currently requires most trailers and semitrailers
manufactured on or after January 26, 1998, to be equipped with rear
impact guards. This proposed rule would not require installation or
maintenance of rear impact guards beyond the current requirements in
Sec.  393.86.
    The Agency does not expect this proposed rule to result in
incremental costs or benefits beyond the baseline established in the
FMCSRs. As required by 49 CFR 396.17, motor carriers currently complete
annual inspections of all items identified in Appendix G. FMCSA assumes
that motor carriers review rear impact guards in their annual
inspection programs to remain in compliance with the current
requirements in 49 CFR 396.3(a)(1), which states that rear impact
guards must be installed and in safe and proper operating conditions at
all times. Additionally, CMVs are subject to inspections conducted in
accordance with the CVSA's North American Standard Inspection Program
that may occur throughout the year, which include the examination of
rear impact guards. According to MCMIS, most motor carriers comply with
49 CFR 396.3(a)(1). Specifically, out of approximately 5.8 million
regulatory violations identified during inspections in 2017, only
approximately 2,400--or about 0.041 percent--were rear impact guard
violations.
    FMCSA also proposes two minor changes to maintain consistency
between the FMCSRs and NHTSA's FMVSS Nos. 223 and 224. As described
above, these changes would provide consistent labeling requirements and
would exclude RCC horizontal discharge semitrailers from the
requirements of this standard. FMCSA does not expect these
administrative changes to result in incremental impacts.

B. Executive Order 13771 Reducing Regulation and Controlling Regulatory
Costs

    This proposed rule is expected to be neither an Executive Order
13771 regulatory action nor an Executive Order 13771 deregulatory
action because there would be no cost impacts resulting from the
rule.\7\
---------------------------------------------------------------------------

    \7\ Executive Office of the President, Executive Order 13771 of
January 30, 2017, Reducing Regulation and Controlling Regulatory
Costs, 82 FR 9339-9341, February 3, 2017.
---------------------------------------------------------------------------

C. Regulatory Flexibility Act (Small Entities)

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.)
requires Federal agencies to consider the effects of their regulatory
actions on small businesses and other small entities and to minimize
any significant economic impact. The term ``small entities''
encompasses small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields
and governmental jurisdictions with populations of less than 50,000.\8\
Accordingly, DOT policy requires an analysis of the impact of all
regulations on small entities and mandates that agencies strive to
lessen any adverse effects on these businesses. Section 605 of the RFA
allows an agency to certify a rule, in lieu of preparing an analysis,
if the rulemaking is not expected to have a significant economic impact
on a substantial number of small entities.
---------------------------------------------------------------------------

    \8\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.), see
National Archives at http://www.archives.gov/federal-register/laws/regulaotry-flexibility/601.html.
---------------------------------------------------------------------------

    ``Small entity'' is defined in 5 U.S.C. 601(3) as having the same
meaning as ``small business concern'' under Section 3 of the Small
Business Act (SBA). This includes any small business concern that is
independently owned and operated, and is not dominant in its field of
operation. Section 601(4), likewise, includes within the definition of
``small entities'' not-for-profit enterprises that are independently
owned and operated, and are not dominant in their fields of operation.
In addition, Section 601(5) defines ``small entities'' as governments
of cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000. The Small Business
Administration develops the size standards used to classify entities as
small, and establishes separate standards for each industry, as defined
by the North American Industry Classification System (NAICS). The motor
carriers that would be affected by this rule fall into many different
industry codes with differing size standards. Because this rule would
impact all motor carriers, including those considered to be small
entities, FMCSA anticipates that this rule would impact a substantial
number of small entities.
    However, FMCSA has determined that this rule would not have a
significant impact on the affected entities. This rule would require
motor carriers to include rear impact guards on the list of items that
must be examined as part of the required annual CMV

inspection completed. FMCSA believes that motor carriers have been
inspecting the rear impact guards on their CMVs to remain in compliance
with requirements that have been in the FMCSRs since 1952. As such,
FMCSA does not expect this proposed rule to have incremental impacts on
the affected entities. The Agency also does not expect the two minor
changes proposed to maintain consistency between the FMCSRs and NHTSA's
FMVSS Nos. 223 and 224 to result in incremental impacts. The Agency
expects the impacts of this proposed rule would be de minimis, and
therefore, does not expect the proposed rule to have a significant
economic impact on a substantial number of small entities.
    Consequently, I certify that the proposed action will not have a
significant economic impact on a substantial number of small entities.
FMCSA invites comment from members of the public who believe there will
be a significant impact either on small businesses or on governmental
jurisdictions with a population of less than 50,000.

D. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this proposed rule so that they can better evaluate
its effects on themselves and participate in the rulemaking initiative.
If the proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult the person listed
under FOR FURTHER INFORMATION CONTACT.
    Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $165 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2018 levels) or more in any one year. Though this proposed rule would
not result in such an expenditure, the Agency does discuss the effects
of this rule elsewhere in this preamble.

F. Paperwork Reduction Act

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

G. Executive Order 13132 (Federalism)

    A rule has implications for federalism under Section 1(a) of
Executive Order 13132 if it has ``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.'' FMCSA determined that this proposal
would not have substantial direct costs on or for States, nor would it
limit the policymaking discretion of States. Nothing in this document
preempts any State law or regulation. Therefore, this rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.

H. Executive Order 12988 (Civil Justice Reform)

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

I. Executive Order 13045 (Protection of Children)

    Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires
agencies issuing ``economically significant'' rules, if the regulation
also concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. The Agency determined this proposed rule is not
economically significant. Therefore, no analysis of the impacts on
children is required. In any event, the Agency does not anticipate that
this regulatory action could in any respect present an environmental or
safety risk that could disproportionately affect children.

J. Executive Order 12630 (Taking of Private Property)

    FMCSA reviewed this proposed rule in accordance with Executive
Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, and has determined it will
not result in the effect a taking of private property or otherwise have
taking implications.

K. Privacy

    Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to
conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. The Agency completed a Privacy
Threshold Assessment (PTA) to assist in analyzing the new rulemaking to
determine if it creates privacy risk for individuals that could require
other entities to collect, use, store or share personally identifiable
information (PII), or deploy technologies as a result of this
rulemaking implementation. The PTA is also used to identify programs
and systems that are privacy sensitive and help determine whether
additional privacy compliance, such a PIA or System of Records Notice
(SORN), is required for a particular rulemaking or system. Based on the
preliminary adjudication of the PTA by the FMCSA Privacy Officer, this
rule does not require the collection of PII and the Agency is not
required to conduct a PIA. The PTA has been submitted to FMCSA's
Privacy Officer for review and preliminary adjudication and to DOT's
Privacy Officer for review and final adjudication. The DOT Privacy
Office has determined that this rulemaking does not create privacy
risk.

L. Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.

M. Executive Order 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,

Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under Executive Order
13211. The Administrator of the Office of Information and Regulatory
Affairs has not designated it as a significant energy action.
Therefore, it does not require a Statement of Energy Effects under
Executive Order 13211.

N. Executive Order 13175 (Indian Tribal Governments)

    This rule does not have Tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.

O. National Technology Transfer and Advancement Act (Technical
Standards)

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards that are developed or
adopted by voluntary consensus standards bodies. This rule does not use
technical standards. Therefore, FMCSA did not consider the use of
voluntary consensus standards.

P. National Environmental Policy Act of 1969

    FMCSA analyzed this NPRM for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004),
Appendix 2, paragraph (aa). The Categorical Exclusion (CE) in paragraph
(aa) covers regulations requiring motor carriers, their officers,
drivers, agents, representatives, and employees directly in control of
CMVs to inspect, repair, and provide maintenance for every CMV used on
a public road. The proposed requirements in this rule are covered by
this CE and the NPRM does not have any effect on the quality of the
environment. The CE determination is available for inspection or
copying in the regulations.gov website listed under ADDRESSES.

Q. Executive Order 13783 (Promoting Energy Independence and Economic
Growth)

    Executive Order 13783 directs executive departments and agencies to
review existing regulations that potentially burden the development or
use of domestically produced energy resources, and to appropriately
suspend, revise, or rescind those that unduly burden the development of
domestic energy resources. In accordance with Executive Order 13783,
DOT prepared and submitted a report to the Director of OMB that
provides specific recommendations that, to the extent permitted by law,
could alleviate or eliminate aspects of agency action that burden
domestic energy production. This proposed rule has not been identified
by DOT under Executive Order 13783 as potentially alleviating
unnecessary burdens on domestic energy production.

List of Subjects

49 CFR Part 393

    Highway safety, Motor carriers, Motor vehicle safety, Reporting and
recordkeeping requirements.

49 CFR Part 399

    Motor carriers, Motor vehicle safety, Occupational safety and
health.

    In consideration of the foregoing, FMCSA proposes to amend 49 CFR
parts 393 and 399 as follows:

PART 393--PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION

0
1. The authority citation for part 393 continues to read as follows:

    Authority: 49 U.S.C. 31136, 31151, and 31502; sec. 1041(b) of
Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); sec. 5301 and 5524 of
Pub. L. 114-94, 129 Stat. 1312, 1543, 1560; and 49 CFR 1.87.

0
2. Amend Sec.  393.5 by adding a definition for Road construction
controlled horizontal discharge trailer in alphabetical order to read
as follows:

Sec.  393.5  Definitions.

* * * * *
    Road construction controlled horizontal discharge trailer means a
trailer or semitrailer that is equipped with a mechanical drive and a
conveyor to deliver asphalt and other road building materials, in a
controlled horizontal manner, into a lay down machine or paving
equipment for road construction and paving operations.
* * * * *
0
3. In Sec.  393.86 revise paragraphs (a)(1), (6) and (b)(1) to read as
follows:

Sec.  393.86  Rear impact guards and rear end protection.

    (a)(1) General requirements for trailers and semitrailers
manufactured on or after January 26, 1998. Each trailer and semitrailer
with a gross vehicle weight rating of 4,536 kg (10,000 pounds) or more,
and manufactured on or after January 26, 1998, must be equipped with a
rear impact guard that meets the requirements of Federal Motor Vehicle
Safety Standard No. 223 (49 CFR 571.223) in effect at the time the
vehicle was manufactured. When the rear impact guard is installed on
the trailer or semitrailer, the vehicle must, at a minimum, meet the
requirements of FMVSS No. 224 (49 CFR 571.224) in effect at the time
the vehicle was manufactured. The requirements of paragraph (a) of this
section do not apply to pole trailers (as defined in Sec.  390.5 of
this chapter); pulpwood trailers, low chassis vehicles, special purpose
vehicles, wheels back vehicles (as defined in Sec.  393.5), road
construction controlled horizontal discharge trailers; and trailers
towed in driveaway-towaway operations (as defined in Sec.  390.5).
* * * * *
    (6) Certification and labeling requirements for rear impact
protection guards. Each rear impact guard used to satisfy the
requirements of paragraph (a)(1) of this section must be permanently
marked or labeled as required by FMVSS No. 223 (49 CFR 571.223, S5.3).
The label shall be placed on the forward or rearward facing surface of
the horizontal member of the guard, provided that the label does not
interfere with the retroreflective sheeting required by S<IP_ADDRESS>.1(c)
of FMVSS No. 108 (49 CFR 571.108), and is readily accessible for visual
inspection. The certification label must contain the following
information:
* * * * *
    (b)(1) Requirements for motor vehicles manufactured after December
31, 1952 (except trailers or semitrailers manufactured on or after
January 26, 1998). Each motor vehicle manufactured after December 31,
1952, (except truck

tractors, pole trailers, pulpwood trailers, road construction
controlled horizontal discharge trailers, or vehicles in driveaway-
towaway operations) in which the vertical distance between the rear
bottom edge of the body (or the chassis assembly if the chassis is the
rearmost part of the vehicle) and the ground is greater than 76.2 cm
(30 inches) when the motor vehicle is empty, shall be equipped with a
rear impact guard(s). The rear impact guard(s) must be installed and
maintained in such a manner that:
* * * * *

PART 399--EMPLOYEE SAFETY AND HEALTH STANDARDS

0
4. The authority citation for part 399 continues to read as follows:

    Authority: 49 U.S.C. 31502 and 49 CFR 1.87.

0
5. Amend Appendix G to Subchapter B of Chapter III by adding Section 15
as follows:

Appendix G to Subchapter B of Chapter III--Minimum Periodic Inspection
Standards

* * * * *

15. Rear Impact Guard

    a. Trailers and semitrailers with a GVWR of 4,536 kg (10,000
lbs) or more, manufactured on or after January 26, 1998 (see
exceptions in Sec.  393.86(a)(1)).
    1. Missing guard.
    2. Guard is not securely attached to trailer.
    3. Guard does not extend to within 100 mm (4 inches) of each
side extremity of the vehicle, and not beyond.
    4. Guard is more than 560 mm (22 inches) above the ground.
    5. Guard is more than 305 mm (12 inches) forward of the rear
extremity of the vehicle.
    6. Guard does not have a cross sectional vertical height of at
least 100 mm (4 inches) across its entire width.
    b. Commercial motor vehicles manufactured after December 31,
1952 (except trailers and semitrailers manufactured on or after
January 26, 1998) (see exceptions in Sec.  393.86(b)(1) and Sec.
393.86(b)(3)).
    1. Missing guard.
    2. Guard is not securely attached to trailer by bolts, welding,
or other comparable means.
    3. Guard is more than 762 mm (30 inches) above the ground.
    4. Guard does not extend to within 457 mm (18 inches) of each
side extremity of the vehicle.
    5. Guard is more than 610 mm (24 inches) forward of the rear
extremity of the vehicle.

    Issued under authority delegated in 49 CFR 1.87.
James W. Deck,
Deputy Administrator.
[FR Doc. 2020-27502 Filed 12-28-20; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register: January 6, 2009 (Volume 74, Number 3)]
[Notices]
[Page 488]
[DOCID:fr06ja09-82]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59161; File No. SR-NYSEArca-2008-118]

Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving
Proposed Rule Change Amending Its Schedule of Fees and Charges for
Exchange Services

December 24, 2008.

I. Introduction

    On November 3, 2008, NYSE Arca, Inc. (``Exchange'' or ``NYSE
Arca'') filed with the Securities and Exchange Commission
(``Commission'') pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend its Schedule of Fees and Charges for
Exchange Services (``Schedule of Fees''). The proposed rule change was
published for comment in the Federal Register on November 24, 2008.\3\
The Commission received no comment letters on the proposed rule change.
This order approves the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 58945 (November 13,
2008), 73 FR 71072.
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II. Description of the Proposed Rule Change

    The Exchange has proposed to amend its Schedule of Fees to charge
the same amount for Principal Orders (``P Orders'') and Principal
Acting As Agent Orders (``P/A Orders'') (collectively, ``Linkage
Orders'') in foreign currency options (``FCO'') as they currently
charge for Linkage orders in issues included in the Penny Pilot. The
Exchange recently amended its rules to enable the Exchange to list and
trade FCOs.\4\ These rules permit FCOs to be quoted and traded in one
cent increments. Presently, the Exchange charges $0.45 for all
electronically executed Linkage Orders in Penny Pilot issues.\5\ The
Exchange is proposing to similarly charge $0.45 for all electronically
executed Linkage Orders in FCOs.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 58800 (October 16,
2008), 73 FR 63539 (October 24, 2008) (SR-NYSEArca-2008-109).
    \5\ The Exchange may trade option contracts in one cent
increments in certain approved issues as part of the Penny Pilot,
through March 27, 2009. See Securities Exchange Act Release No.
56568 (September 27, 2007), 72 FR 56422 (October 3, 2007).
---------------------------------------------------------------------------

III. Discussion and Commission's Findings

    After careful review, the Commission finds that NYSE Arca's
proposal to amend its Schedule of Fees and Charges for Exchange
Services is consistent with the Act and the rules and regulations
thereunder applicable to a national securities exchange.\6\ In
particular, the Commission finds that the proposal is consistent with
Section 6(b)(4) of the Act,\7\ which requires that an exchange have
rules that provide for the equitable allocation of reasonable dues,
fees, and other charges among its members and other persons using its
facilities.
---------------------------------------------------------------------------

    \6\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \7\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    Under the current Schedule of Fees, NYSE Arca charges
electronically executed FCO orders the fee rate of $.50 for Linkage
Orders submitted through the Options Linkage. The Exchange proposed to
lower the charge to $.45 for all electronically executed Linkage Orders
in FCOs.
    The Commission notes that the $.45 fee rate for electronically
executed FCOs orders that take liquidity has been in place in the non-
Linkage context since October 2008.\8\ In addition, the Commission
notes that the Options Linkage fees are assessed pursuant to a pilot
scheduled to end on July 31, 2009 and that the Commission is continuing
to evaluate whether such fees are appropriate.
---------------------------------------------------------------------------

    \8\ See Securities Exchange Act Release No. 58875 (October 29,
2008), 73 FR 65916 (November 5, 2008) (SR-NYSEArca-2008-117).
---------------------------------------------------------------------------

    For the foregoing reasons, the Commission believes that the
proposal to amend the fees the Exchange charges for Linkage Orders in
FCOs is consistent with the Act.
    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\9\ that the proposed rule change (SR-NYSEArca-2008-118) be, and it
hereby is, approved.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
---------------------------------------------------------------------------

    \10\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-31346 Filed 1-5-09; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: April 26, 2011 (Volume 76, Number 80)]
[Proposed Rules]
[Page 23255-23256]
[DOCID:fr26ap11-24]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2007-28322]

Federal Motor Vehicle Safety Standards; Lamps, Reflective
Devices, and Associated Equipment

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Denying, in part, petitions for reconsideration.

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SUMMARY: This document denies, in part, the petitions for
reconsideration of the December 4, 2007, final rule reorganizing
Federal Motor Vehicle Safety Standard (FMVSS) No. 108 (49 CFR 571.108).
The petitions are denied only as they relate to subpart S6.6.3 (License
Plate Holder) of the final rule.

FOR FURTHER INFORMATION CONTACT: For technical issues: Markus Price,
Office of Crash Avoidance Standards (NVS-121), NHTSA, 1200 New Jersey
Avenue, SE., West Building, Washington, DC 20590 (Telephone: (202) 366-
0098) (Fax:<PHONE_NUMBER>).
    For legal issues: Jesse Chang, Office of the Chief Counsel (NCC-
112), NHTSA, 1200 New Jersey Avenue, SE., West Building, Washington, DC
20590 (Telephone:<PHONE_NUMBER>) (Fax:<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Background

    On December 30, 2005, the agency published in the Federal Register
a notice of proposed rulemaking concerning 49 CFR 571.108 (Federal
Motor Vehicle Safety Standard No. 108).\1\ The agency stated that the
goal of the proposal was to ``amend the standard by reorganizing the
regulatory text so that it provides a more straight-forward and logical
presentation of the applicable regulatory requirements.'' After the
publication of a final rule on December 4, 2007,\2\ adopting the
proposal with revisions, the agency received petitions for
reconsideration from Harley-Davidson Motor Company (January 18, 2008)
and Ford Motor Company (January 18, 2008) asking the agency to
reconsider the license plate holder requirements in subpart S6.6.3. A
submission by the Motorcycle Industry Council (MIC) on March 19, 2009
also requested a similar change to S6.6.3. However, the MIC submission
was not timely for the purposes of reconsidering this final rule and
has been considered as a petition for rulemaking per 49 CFR 553.35.
---------------------------------------------------------------------------

    \1\ 70 FR 77454 (December 30, 2005).
    \2\ 72 FR 68234 (December 4, 2007).
---------------------------------------------------------------------------

    In subpart S6.6.3 of the December 4, 2007 final rule, the agency
included provisions expressly requiring that manufacturers of motor
vehicles design license plate holders so that the plane surface of a
license plate in the holder would be within  15[deg] of
perpendicular to the plane surface on which the vehicle stands.
    Paragraph S5.1.1 of the pre-reorganized version of FMVSS No. 108
required that passenger vehicles and motorcycles be equipped with the
``lamps, reflective devices, and associated equipment'' listed in Table
III of Standard 108. Table III listed lamps such turn signal lamps,
reflectors such as reflex reflectors, and associated equipment such as
turn signal operating units. Further, S5.1.1 required that the
equipment listed in Table III conform to the corresponding SAE
Standards listed in that table. One of the listed items of equipment
was ``license plate lamps.'' Table III required ``license plate lamps''
to be designed to conform to SAE Standard J587 (October 1981). Among
other requirements, SAE Standard J587 states in paragraph 6.1 that
``the angle between the plane of the license plate and the plane on
which the vehicle stands will be 90  15 deg.''
    Petitioners request that the agency reconsider subpart S6.6.3 on a
number of grounds. First, petitioners contend that license plate
holders are not lamps, reflective devices, or associated equipment
listed in Table III and thus were never regulated under S5.1.1 of the
pre-reorganized version of FMVSS No. 108. Therefore, petitioners
believe that as a result of including S6.6.3 in the reorganization of
FMVSS No. 108, the agency was imposing a new requirement and
contravening its statement in the December 4, 2007 final rule that the
``final rule does not impose any new substantive requirements on
manufacturers.'' In addition, petitioners assert that the license plate
mounting provisions of SAE Standard J587 are intended to serve the
purpose of ensuring an objective means of measuring photometric
performance, but not intended to be a requirement. Finally, petitioners
request that should the agency consider license plate holders to be
regulated, the agency

should harmonize the license plate holder requirements with the most
recent revision of SAE Standard J587 and the requirements in European
Union.\3\
---------------------------------------------------------------------------

    \3\ The 1997 revision of SAE Standard J587 permits license
plates mounted at less than 1.2 meters above the ground to be angled
upwards at 30 degrees and maintained the requirement for plates to
be angled downward at no more than 15 degrees.
---------------------------------------------------------------------------

    In 1995, the agency stated that FMVSS No. 108 ``incorporated SAE
J587 in its entirety, and there is no exclusion of paragraph 6.1.'' The
agency made this statement in an interpretation letter addressed to
Volkswagen of America, Inc.\4\
---------------------------------------------------------------------------

    \4\ Available at http://isearch.nhtsa.gov/files/0788.html.
---------------------------------------------------------------------------

    Notwithstanding that interpretation, NHTSA takes note that there
has been significant confusion among the relevant stakeholders as to
whether or not the mounting provisions of SAE Standard J587 were
incorporated into FMVSS No. 108 via Table III as referenced through
S5.1.1. On the one hand, the Motorcycle Industry Council (MIC)
petitioned this agency for rulemaking in March of 2005 (before the
December 30, 2005 NPRM in this rulemaking) requesting that the agency
update the incorporated SAE Standard J587 to allow for a 30 degree
upward angle mounting position for license plates. The March 2005
petition seems to indicate that MIC believed that the license plate
mounting provisions of SAE Standard J587 were incorporated into FMVSS
No. 108 via S5.1.1 and Table III. On the other hand, the Alliance of
Automobile Manufacturers commented on March 30, 2006 to the 2005 NPRM
and disputed the view that those provisions were ever incorporated into
FMVSS No. 108.

Conclusion

    Given the confusion over whether or not SAE Standard J587's
provisions on license plate holders were incorporated into the prior
version of FMVSS No. 108 and given the petition to initiate rulemaking
premised on their incorporation and requesting their relaxation, the
agency has decided to resolve this matter through rulemaking. Thus,
through this document, the agency denies the aforementioned petitions
for reconsideration as they relate to S6.6.3 (License Plate Holder) of
the December 4, 2007 final rule. However, the agency is granting the
petition from MIC requesting the agency to initiate rulemaking to
examine the issue of license plate holders and their mounting
requirements \5\ in a separate document published in today's Federal
Register. Further, due to the confusion and special circumstances
surrounding this rule, the agency announced in the aforementioned
document in today's Federal Register that it will not enforce the 15
degree license plate holder mounting requirement during the pendency of
rulemaking on the issue of that requirement.
---------------------------------------------------------------------------

    \5\ Motorcycle Industry Council Petition for Rulemaking, March
14, 2005 (Docket No. NHTSA-2005-20286-0009)
---------------------------------------------------------------------------

    The agency also notes that it is still considering the comments and
requests relating to other issues in the petitions for reconsideration
of the December 4, 2007 final rule and will respond to them in a
separate document.

    Issued on: April 21, 2011.
Christopher J. Bonanti,
Associate Administrator for Rulemaking.
[FR Doc. 2011-10030 Filed 4-25-11; 8:45 am]
BILLING CODE 4910-59-P


[Federal Register Volume 79, Number 72 (Tuesday, April 15, 2014)]
[Notices]
[Page 21228]
[FR Doc No: 2014-08442]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER14-1678-000]

Community Wind North 11 LLC; Supplemental Notice That Initial
Market-Based Rate Filing Includes Request for Blanket Section 204
Authorization

    This is a supplemental notice in the above-referenced proceeding of
Community Wind North 11 LLC's application for market-based rate
authority, with an accompanying rate tariff, noting that such
application includes a request for blanket authorization, under 18 CFR
Part 34, of future issuances of securities and assumptions of
liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR Part 34, of future issuances of securities and assumptions of
liability, is April 28, 2014.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
5 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First Street NE., Washington, DC 20426.
    The filings in the above-referenced proceeding are accessible in
the Commission's eLibrary system by clicking on the appropriate link in
the above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive email notification
when a document is added to a subscribed docket(s). For assistance with
any FERC Online service, please email<EMAIL_ADDRESS>or
call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

    Dated: April 8, 2014.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2014-08442 Filed 4-14-14; 8:45 am]
BILLING CODE 6717-01-P