[Federal Register Volume 85, Number 238 (Thursday, December 10, 2020)]
[Proposed Rules]
[Pages 79456-79460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27001]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2020-0109]
RIN 2127-AM04


Federal Motor Vehicle Safety Standards: Test Procedures

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

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: NHTSA is issuing this ANPRM to seek public comment on whether 
any test procedures for any Federal Motor Vehicle Safety Standards 
(FMVSS) may be a candidate for replacement, repeal, or modification, 
for reasons other than for considerations relevant only to automated 
driving systems (ADS). This document is a continuation of the Agency's 
efforts to improve the FMVSS and minimize burdens. The Agency takes 
this action in response to its review of the FMVSS and to public 
comments solicited by DOT in a 2017 notice on its regulatory reform 
efforts. The commenters requested that NHTSA amend test procedures for 
air brakes and occupant crash protection. NHTSA has also identified 
some possible additional test procedure issues and discusses them in 
this Notice. In addition, this ANPRM also seeks comments and supporting 
information relating to any other test procedures which may be a 
candidate for replacement, repeal or modification, not just those 
specifically discussed in this Notice.

DATES: Comments must be received no later than February 8, 2021. See 
the Public Participation heading of the Supplementary Information 
section of this document for more information about written comments.

ADDRESSES: You may submit comments to the docket number identified in 
the heading of this document by any of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001
    <bullet> Hand Delivery or Courier: 1200 New Jersey Avenue SE, West 
Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
    <bullet> Fax: 202-493-2251.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to http://www.regulations.gov, including any personal information 
provided. Please see the ``Privacy Act'' heading below.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any docket by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review

[[Page 79457]]

DOT's complete Privacy Act Statement in the Federal Register published 
on April 11, 2000 (65 FR 19477-78).
    Confidential Information: If you wish to submit any information 
under a claim of confidentiality, you should submit three copies of 
your complete submission, including the information you claim to be 
confidential business information, to the Chief Counsel of NHTSA, at 
the address given under FOR FURTHER INFORMATION CONTACT. In addition, 
you should submit two copies, from which you have deleted the claimed 
confidential business information, to Docket Management at the address 
given above under ADDRESSES. When you send a comment containing 
information claimed to be confidential business information, you should 
include a cover letter setting forth the information specified in the 
confidential business information regulation. (49 CFR part 512.)
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or the street 
address listed above. Follow the online instructions for accessing the 
dockets.

FOR FURTHER INFORMATION CONTACT: Ms. Mary Versailles, Office of 
Rulemaking, National Highway Traffic Safety Administration, 1200 New 
Jersey Avenue SE, Washington, DC 20590. Telephone: (202) 366-2057.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Example Test Procedures
    A. FMVSS No. 103
    B. FMVSS No. 104
    C. FMVSS Nos. 105/135
    D. FMVSS No. 121
    E. FMVSS No. 126
III. Questions Requesting Further Information From the Public
IV. Public Participation
V. Rulemaking Notices and Analyses

I. Background

    On October 2, 2017, the Department of Transportation (DOT) 
published a Notice in the Federal Register inviting ``the public to 
provide input on existing rules and other agency actions that are good 
candidates for repeal, replacement, suspension, or modification.'' \1\ 
DOT received almost 3,000 comments in response to this Notice, of which 
approximately twenty-three addressed rules and agency actions under the 
scope of the National Highway Traffic Safety Administration (NHTSA). In 
response to these public comments, and on the Agency's own initiative, 
the agency is planning to issue a series of advance notices of proposed 
rulemaking (ANPRMs) on various regulatory reform topics.
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    \1\ 82 FR 45750.
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    This ANPRM specifically discusses test procedures \2\ that may be 
candidates for replacement, repeal, or modification. This Notice does 
not address the performance requirements within the standards, but only 
the test procedures specified in the standards for NHTSA to use to 
verify compliance. Additionally, this Notice does not address issues 
related to test procedures relevant only to technologies for automated 
driving systems (ADS), commonly referred to as automated or self-
driving vehicles. Comments on test procedures that may be candidates 
for repeal, replacement, or modification to permit the introduction and 
certification of ADS would be more appropriate for the ANPRM for RIN 
2127-AM00 \3\ or one of the topic-specific ANPRMs. NHTSA also notes 
that the specific test procedures discussed in the remainder of this 
Notice are not meant to be an exclusive listing of the test procedures 
that may be suitable candidates for replacement, repeal, or 
modification. Rather, these tests procedures are intended to serve as 
examples for why a test procedure might be a candidate.
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    \2\ As used in this notice, ``test procedures'' includes test 
conditions, test procedures, and test devices (e.g., dummies and 
crash barriers).
    \3\ 84 FR 24433, May 29, 2019.
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II. Example Test Procedures

    As discussed in this section, NHTSA, partially in response to 
comments, has identified possible examples of test procedures that 
might be candidates for replacement, repeal, or modification. These are 
discussed below to illustrate the kinds of test procedures for which 
the Agency would like to seek comment for this Notice. DOT received a 
few comments from trade associations that addressed test procedure 
changes. The Truck and Engine Manufacturers Association (``EMA''; DOT-
OST-2017-0069-2786) commented on the test procedures of FMVSS No. 121, 
but, as discussed below, NHTSA would like more information on the 
request to understand better EMA's suggestion. The Alliance of 
Automobile Manufacturers (``Alliance''; DOT-OST-2017-0069-2700), raised 
issues relating to FMVSS Nos. 208 and 209. The Association of Global 
Automakers (``Global''; DOT-OST-2017-0069-2772) raised the same issue 
as the Alliance relating to FMVSS No. 208, but did not address FMVSS 
No. 209. Both the Alliance and Global suggested changes to FMVSS Nos. 
208 and 209 that appear to go beyond test procedure changes. Because 
these comments require consideration of both performance requirements 
and test procedures, the comments are discussed in the ANPRM for RIN 
2127-AM05, which deals with regulatory barriers in the performance 
requirements for non-ADS vehicles.

A. FMVSS No. 103

    Compliance with the performance requirements of FMVSS No. 103, 
Windshield defrosting and defogging systems (49 CFR 571.103), is 
determined by the Agency using a test procedure incorporated from SAE 
Recommended Practice J902 (August 1964 or March 1967), which is 
predicated on a vehicle's having a conventional internal combustion 
engine (ICE). The Agency is considering whether these procedures should 
be revised or modified for vehicles with other types of propulsion and 
requests comment on this issue.

B. FMVSS 104

    Determination of compliance with the performance requirements of 
FMVSS 104, Windshield wiping and washing systems (49 CFR 571.104), has 
the same test procedure issue as FMVSS 103 since it is also predicated 
on the vehicle's having an ICE. In addition, should the test procedure 
be updated for newer systems with rain sensor technology?

C. FMVSS 105/135

    FMVSS 105, Hydraulic and electric brake systems (49 CFR 571.105), 
is applicable to multi-purpose passenger vehicles (MPVs), trucks, and 
buses with a gross vehicle weight rating (GVWR) of 3,500 kilograms (kg; 
7,716 pounds (lbs)) or more equipped with hydraulically or electrically 
actuated brakes. The standard has not been updated since 1976. NHTSA 
has a similar brake standard, FMVSS No. 135, Light vehicle brake 
systems (49 CFR 571.135), which went into effect in 1995 and applies to 
hydraulically braked vehicles, but with a GVWR less than 3,500 kg. 
Should the Agency revise the test procedures in either of these brake 
standards to improve clarity or efficiency for compliance?
    For example, the FMVSS Nos. 105/135 braking tests could be revised 
consistent with FMVSS No. 122, Motorcycle brake systems (49 CFR 
571.122), as it relates to the number of stopping attempts for each 
specified test condition. FMVSS Nos. 105/135 specifies, in most test 
conditions, the completion of no fewer than six stops regardless of 
which of the stops, or how many of them, meet the stopping distance 
performance requirement. FMVSS No. 122, on the other hand,

[[Page 79458]]

permits the skipping of the remaining stops (if any) for that test and 
allowing the next test to be performed once a passing stop is obtained, 
even if that occurs before the specified number of stops are made. 
Should FMVSS Nos. 105/135 be updated and would this change reduce 
testing time and cost without compromising the safety evaluation of the 
braking system?

D. FMVSS No. 121

    EMA commented that, despite a number of revisions in the past, 
FMVSS No. 121, Air brake systems (49 CFR 571.121), has not kept pace 
with advances in heavy-duty air brake components and systems. While 
indicating that a number of modifications would be appropriate to 
address this issue, EMA did not elaborate on them. The Agency requests 
more information about the modifications that would update the standard 
to keep pace with advances in heavy-duty air brake components and 
systems, and why, specifically, they are needed.

E. FMVSS No. 126

    Section 6.3.4 of FMVSS No. 126, Electronic stability control 
systems (49 CFR 571.126), specifies the use of outriggers \4\ when 
testing MPVs, trucks, and buses, but not when testing passenger cars. 
Today's vehicle market includes crossover vehicles which are classified 
as MPVs but which are typically based on passenger car platforms, 
unlike traditional MPVs, which are based on light truck platforms. What 
evidence is there that crossover vehicles perform more like passenger 
cars than traditional MPVs, and how would updating the test procedure 
to remove the outriggers be justified? If the Agency was to specify the 
use of outriggers based on criteria other than just vehicle 
classification, what would commenters recommend for criteria? Would 
modifying the criteria improve efficiency and reduce the need for these 
devices in some testing, thereby reducing costs?
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    \4\ An outrigger is a stabilizing device attached to the vehicle 
to protect the vehicle and/or driver from rollover during test 
maneuvers.
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IV. Questions Requesting Further Information From the Public

    In order to inform the Agency as it works toward possible 
rulemaking proposals, NHTSA invites comments on any other test 
procedures that are potential candidates for replacement, repeal, or 
modification. NHTSA again emphasizes that the test procedures discussed 
in Sections II and III of this notice are just examples of test 
procedures that might be a candidate for replacement, repeal, or 
modification, and thus illustrate the types of reasons why such a 
change may be necessary. NHTSA requests comments on the specific test 
procedure issues discussed above, other issues related to the test 
procedures for the FMVSSs discussed above, and issues related to the 
test procedures for any other FMVSS. For example, a test procedure may 
specify testing that is no longer necessary, or may not be clear about 
how to test vehicles with newer technology, or may even have the effect 
of prohibiting the introduction of such vehicles. The Agency requests 
that commenters provide as much research, evidence, or data as possible 
to support their comments, as that information will be of great 
assistance to the Agency as it considers whether to develop a proposal 
to revise the procedure.
    In addition, commenters should consider the following general 
questions when considering potential test procedure improvements:
    1. Do any test procedures specify the use of equipment that is 
obsolete or no longer available at a reasonable cost? If so, what 
options are available as replacements?
    2. Do any test procedures specify the use of equipment in a manner 
that is more specific than necessary to ensure that the test procedure 
be repeatable and reproducible?
    3. Are there test procedures in regulations from standards 
organizations or other countries that evaluate compliance with the same 
requirement as one in an FMVSS? If so, what evidence is there that the 
test procedure provides an evaluation of compliance with the 
requirement in a manner and to an extent equivalent to the current test 
procedure in the FMVSS?
    4. What specific problems and challenges have testing laboratories, 
researchers, or other entities encountered when trying to follow 
existing test procedures in an FMVSS? For each problem or challenge, 
please explain how it is currently addressed and any suggested 
solutions for how it should be addressed in the future.
    5. Are there any test procedures that do not accurately reflect 
real-world scenarios? If so, what evidence is there to show that a test 
procedure needs to be updated to reflect real-world scenarios being 
tested more accurately? Similarly, how can test procedures be updated 
to represent a real-world scenario more accurately?
    6. Are there any loopholes in test procedures that could lead to a 
passing test result without meeting the intent of a standard or 
regulation? If so, how can such loopholes be closed by updating the 
test procedure?

V. Public Participation

a. How can I influence NHTSA's thinking on this subject?

    Your comments will help NHTSA improve its consideration of issues 
raised by this ANPRM. NHTSA invites you to provide different views on 
options NHTSA discusses, new approaches the agency has not considered, 
new data, descriptions of how this ANPRM may affect you, or other 
relevant information.
    NHTSA welcomes public review on all aspects of this ANPRM. NHTSA 
will consider the comments and information received in developing a 
potential proposal for updating test procedures for motor vehicles and 
motor vehicle equipment. Your comments will be most effective if you 
follow the suggestions below:
    <bullet> Explain your views and reasoning as clearly as possible.
    <bullet> Provide solid evidence and data to support your views.
    <bullet> If you estimate potential costs, explain how you arrived 
at that estimate.
    <bullet> Provide specific examples to illustrate your concerns.
    <bullet> Offer specific alternatives.
    <bullet> Refer your comments to the specific sections of (or 
questions listed in) the ANPRM.

b. How do I prepare and submit comments?

    Your primary comments should be written in English. To ensure that 
your comments are filed in the correct docket, please include the 
docket number of this document in your comments.
    Your primary comments should not be more than 15 pages long (49 CFR 
553.21), however, you may attach additional documents, such as 
supporting data or research, to your primary comments. There is no 
limit on the length of the attachments.
    Please submit one copy (two copies if submitting by mail or hand 
delivery) of your comments, including the attachments, to the docket 
following the instructions given in the ADDRESSES section at the 
beginning of this document. Please note, if you are submitting comments 
electronically as a PDF (Adobe) file, we ask that the documents 
submitted be scanned using the Optical Character Recognition (OCR) 
process, thus allowing NHTSA to search and copy certain portions of 
your submission.

[[Page 79459]]

    Please note that pursuant to the Data Quality Act, in order for 
substantive data to be relied upon and used by the agency, it must meet 
the information quality standards set forth in the OMB and DOT Data 
Quality Act guidelines. Accordingly, we encourage you to consult the 
guidelines in preparing your comments. DOT's guidelines may be accessed 
at www.transportation.gov/regulations/dot-information-dissemination-quality-guidelines.

c. How can I be sure that my comments were received?

    If you submit comments by hard copy and wish Docket Management to 
notify you upon its receipt of your comments, enclose a self-addressed, 
stamped postcard in the envelope containing your comments. Upon 
receiving your comments, Docket Management will return the postcard by 
mail. If you submit comments electronically, your comments should 
appear automatically in the docket on www.regulations.gov. If they do 
not appear within two weeks of posting, NHTSA suggests that you call 
the Docket Management Facility at 202-366-9826.

d. How do I submit confidential business information?

    If you wish to submit any information under a claim of 
confidentiality, you must submit three copies of your complete 
submission, including the information that you claim to be confidential 
business information, to the Office of the Chief Counsel, NHTSA, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 
20590.
    In addition, you should submit a copy (two copies if submitting by 
mail or hand delivery) from which you have deleted the claimed 
confidential business information to the docket by one of the methods 
given above under ADDRESSES. When you submit a comment containing 
information claimed to be confidential business information, you should 
include a cover letter setting forth the information specified in 
NHTSA's confidential business information regulation (49 CFR part 512).

e. Will the Agency consider late comments?

    NHTSA will consider all comments that the docket receives before 
the close of business on the comment closing date indicated in the 
DATES section. To the extent possible, NHTSA will also consider 
comments that the docket receives after that date.

f. How can I read the comments submitted by other people?

    You may read the comments received by the docket at the address 
given in the ADDRESSES section. The hours of the docket are indicated 
above in the same location. You may also read the comments on the 
internet, identified by the docket number at the heading of this 
notice, at www.regulations.gov. Please note that, even after the 
comment closing date, NHTSA will continue to file relevant information 
in the docket as it becomes available. Further, some people may submit 
late comments. Accordingly, NHTSA recommends that you periodically 
check the docket for new material.

VI. Rulemaking Notices and Analyses

a. Executive Orders 12866, 13563, and DOT Regulatory Policies and 
Procedures

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to OMB 
review and to the requirements of the Executive Order. The Order 
defines a ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Executive Order 13563, ``Improving Regulation and Regulatory 
Review'' (76 FR 3821, January 21, 2011), supplements and reaffirms the 
principles established by Executive Order 12866 by encouraging 
harmonization of regulations across agencies and requiring agencies to 
consider regulatory approaches that reduce burdens and maintain 
flexibility and freedom of choice. Additionally, Executive Orders 12866 
and 13563 require agencies to provide a meaningful opportunity for 
public participation. Accordingly, we have asked commenters to answer a 
variety of questions to elicit practical information about alternative 
approaches and relevant technical data on whether and how best to 
update test procedures throughout 49 CFR part 571. These comments will 
help the Department evaluate whether a proposed rulemaking is needed 
and appropriate.
    NHTSA has considered the impact of this ANPRM under Executive Order 
12866, Executive Order 13563, and the DOT's regulatory policies and 
procedures. As discussed in this notice, the Agency lacks the necessary 
information to develop a proposal at this time due to a number of 
unanswered questions and unresolved considerations. However, NHTSA 
anticipates that any proposal that was to result from this Notice could 
have minor economic impact by clarifying how newer technology is 
tested, or could result in cost-savings by eliminating unnecessary 
aspects of test procedures. Therefore, this rulemaking has been 
determined to be not ``significant'' under the Department of 
Transportation's regulatory policies and procedures and the policies of 
the Office of Management and Budget.

b. Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs)

    This action is not subject to the requirements of E.O. 13771 (82 FR 
9339, February 3, 2017) because it is an advance notice of proposed 
rulemaking.

c. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
no analysis is required for an ANPRM. However, small entities, 
including small vehicle manufacturers and equipment manufacturers, are 
encouraged to comment if they identify any aspects of a potential 
rulemaking that may apply to them.

d. Executive Order 13132 (Federalism)

    NHTSA does not believe that there would be sufficient federalism 
implications to warrant the preparation of a federalism assessment. The 
purpose of this rulemaking is not to adopt new safety performance 
requirements which would preempt non-identical State requirements, but 
merely to revise test procedures for existing safety performance 
requirements that would not affect their stringency.

e. Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation, 
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996) requires that

[[Page 79460]]

Executive agencies make every reasonable effort to ensure that the 
regulation: (1) Clearly specifies the preemptive effect; (2) clearly 
specifies the effect on existing Federal law or regulation; (3) 
provides a clear legal standard for affected conduct, while promoting 
simplification and burden reduction; (4) clearly specifies the 
retroactive effect, if any; (5) adequately defines key terms; and (6) 
addresses other important issues affecting clarity and general 
draftsmanship under any guidelines issued by the Attorney General. This 
document is consistent with that requirement.

f. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), a person is not 
required to respond to a collection of information by a Federal agency 
unless the collection displays a valid OMB control number. There are no 
information collection requirements associated with this ANPRM. Any 
information collection requirements and the associated burdens will be 
discussed in detail once a proposal has been issued.

g. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) requires NHTSA to evaluate and use existing voluntary 
consensus standards in its regulatory activities unless doing so would 
be inconsistent with applicable law (e.g., the statutory provisions 
regarding NHTSA's vehicle safety authority) or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies, such as the Society of Automotive Engineers. The 
NTTAA directs us to provide Congress (through OMB) with explanations 
when we decide not to use available and applicable voluntary consensus 
standards. As NHTSA has not yet developed specific regulatory 
provisions, the NTTAA does not apply for purposes of this ANPRM.

h. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires agencies to 
prepare a written assessment of the costs, benefits, and other effects 
of proposed or final rules that include a Federal mandate likely to 
result in the expenditure of State, local, or Tribal governments, in 
the aggregate, or by the private sector, of more than $100 million 
annually (adjusted for inflation with base year of 1995). NHTSA has 
determined that this ANPRM would not result in expenditures by State, 
local, or Tribal governments, in the aggregate, or by the private 
sector, in excess of $100 million annually.

i. National Environmental Policy Act

    NHTSA has analyzed this rulemaking action for the purposes of the 
National Environmental Policy Act. The agency has preliminarily 
determined that implementation of this rulemaking action would not have 
any significant impact on the quality of the human environment.

j. Plain Language

    The Plain Language Writing Act of 2010 (Pub. L. 111-274) requires 
that Federal agencies write documents in a clear, concise, and well-
organized manner. While the Act does not cover regulations, Executive 
Orders 12866 and 13563 require each agency to write all notices in 
plain language that is simple and easy to understand. Application of 
the principles of plain language includes consideration of the 
following questions:
    <bullet> Have we organized the material to suit the public's needs?
    <bullet> Are the requirements in the notice clearly stated?
    <bullet> Does the notice contain technical language or jargon that 
is not clear?
    <bullet> Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
    <bullet> Would more (but shorter) sections be better?
    <bullet> Could we improve clarity by adding tables, lists, or 
diagrams?
    If you have any responses to these questions, please include them 
in your comments on this ANPRM.

k. Regulatory Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

    Issued in Washington, DC.

    Under authority delegated in 49 CFR part 1.95 and 501.5.
James C. Owens,
Deputy Administrator.
[FR Doc. 2020-27001 Filed 12-9-20; 8:45 am]
BILLING CODE 4910-59-P