[Federal Register Volume 74, Number 191 (Monday, October 5, 2009)]
[Rules and Regulations]
[Pages 51083-51092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23818]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 665

[Docket No. FTA-2007-0011]
RIN 2132-AA95


Bus Testing; Phase-In of Brake Performance and Emissions Testing, 
and Program Updates

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends the Federal Transit Administration's 
(FTA's) bus testing regulation to incorporate brake performance and 
emissions tests into FTA's bus testing program to comply with statutory 
changes. To improve the program, this final rule also republishes the 
existing regulation to incorporate several updates that will enhance 
the program's value and respond to changes in the bus manufacturing 
industry and to bring it into conformity with statutory language.

DATES: This rule is effective January 1, 2010.

[[Page 51084]]


FOR FURTHER INFORMATION CONTACT: For technical information, Marcel 
Belanger, Bus Testing Program Manager, Office of Research, 
Demonstration, and Innovation (TRI), (202) 366-0725, 
<a href="/cdn-cgi/l/email-protection#533e322130363f7d31363f323d34362113373c277d343c25"><span class="__cf_email__" data-cfemail="c9a4a8bbaaaca5e7abaca5a8a7aeacbb89ada6bde7aea6bf">[email protected]</span></a>. For legal information, Richard Wong, Office of 
the Chief Counsel (TCC), (202) 366-0675, <a href="/cdn-cgi/l/email-protection#f2809b919a938096dc859d9c95b2969d86dc959d84"><span class="__cf_email__" data-cfemail="70021913181102145e071f1e1730141f045e171f06">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    On September 30, 2008, the Federal Transit Administration (FTA) 
published a notice of proposed rulemaking (NPRM) in the Federal 
Register (73 FR 56781) that discussed proposals to incorporate brake 
performance and emissions tests into FTA's bus testing program as 
required by 49 U.S.C. Section 5318, as amended by the Safe, 
Accountable, Flexible, Equitable Transportation Efficiency Act: a 
Legacy for Users (SAFETEA-LU) (Pub. L. 109-59). These changes required 
by statute included a brake performance test procedure and an emissions 
test procedure.
    The NPRM also sought comments on a number of other proposed ways to 
update the regulation to improve the functioning of the program, 
enhance its value, and clarify possible ambiguities in the existing 
regulation. These proposed changes, which were not required by statute, 
but were intended to improve the program, addressed issues related to: 
(1) The determination of service life category; (2) testing of buses 
that exceed weight limits when fully loaded; (3) clarification of FTA's 
``Family of Vehicles'' policy; (4) separate reporting of third-party 
chassis test results; and, (5) the inclusion of an FTA evaluation or 
recommendation of bus models in bus testing reports.

Comments Received

    FTA received a total of five comments--one from a major industry 
trade association consisting of more than 1,500 public and private 
members, one from a large public transit agency, a third from a 
manufacturer trade association representing almost 700 companies making 
motor vehicle components, the fourth from a manufacturer of large 
heavy-duty transit buses, and the fifth from an engineering consulting 
firm that provides consulting and test equipment for heavy-duty 
vehicles and brake systems.

Section-by-Section Analysis of Specific Comments

1. Brake Performance Test Procedure

    FTA proposed that a test bus would be subjected to a series of 
brake stops from 20, 30, 40, and 45 mph on a high-friction surface; 
from 20 mph on a low-friction surface; and up to 45 mph on a split-
coefficient surface. The parking brake would be evaluated facing uphill 
and downhill on a ramp with a 20 percent grade. FTA also sought 
comments on whether, and, if so, how, the maintainability and noise 
tests should be modified to capture useful data related to the brake 
system and whether any such changes should be done within the 
regulation itself or through non-regulatory testing protocols and 
procedures.
    FTA proposed to incorporate the brake performance test within the 
existing performance test category, as specified by SAFETEA-LU. The 
proposed test procedure specified that all brake performance tests 
would be performed with the bus loaded to gross vehicle weight, for 
which a definition would be provided in the revised 49 CFR Section 
665.5.
A. Comments Received
    FTA received comments on the proposed braking performance test from 
all respondents. Most of the comments received pertained to details of 
the sub-regulatory test procedures that would be used to conduct the 
braking performance test; for example, recommending that FTA measure 
brake system temperatures by the installation of thermocouples in the 
brake linings rather than the proposed use of a non-contacting digital 
thermometer.
    A few comments referred to differences between the draft FTA test 
procedures and the procedures specified in Federal Motor Vehicle Safety 
Standard (FMVSS) 121. For example, FTA's proposed test procedure 
assumes that the brakes would be adequately burnished following 
completion of the gross-vehicle-weight portion of the structural 
durability test, while FMVSS 121 specifies a detailed brake burnishing 
procedure. Another comment noted that some buses may not be able to 
climb the 20 percent slope parking brake testing hill or may not be 
able to clear the hill's transition ramps, and questioned what the 
testing options would be in such situations. This commenter also asked 
who would be responsible if a bus is damaged on the brake testing 
slope.
B. FTA Response
    Since the regulation is only intended to outline the tests that 
would be performed in general terms, specific details of the sub-
regulatory test procedures are not appropriate to address in the 
regulation itself. Instead, FTA will consider each of the comments 
received as we work with the facility operator to finalize the brake 
testing procedures.
    With regard to consistency between FMVSS 121 certification and the 
bus testing program, FTA reiterates that its bus testing program is not 
a certification test. Rather, its purpose is to provide data that can 
facilitate grantees' comparisons of various transit bus models and 
provide indications of whether the contemplated bus model is suitable 
for a grantee's intended application. Therefore, it is not necessary 
for the bus testing program to replicate the test procedures in FMVSS 
121. FTA believes that the operation on the test track and occasional 
operation on roadways between the Altoona Bus Testing Center and the 
Test Track Facility in State College should be adequate to produce a 
realistic real-world level of brake burnishing prior to conducting the 
brake performance tests. However, because this aspect of the test 
procedure will not be established by regulation, FTA will work with the 
bus testing facility operator to verify that its proposed burnishing 
procedure is adequate, or add additional steps to the procedure if that 
is determined to be necessary.
    With regard to the concerns that buses may have difficulty 
navigating the test slope, the slope was designed to replicate 
conditions that could be encountered in a transit bus environment, so 
most if not all buses should be able to negotiate it without 
difficulty. In rare cases where clearance is inadequate, the operator 
can likely devise a workaround, perhaps such as filling in the concave 
transition at the bottom of the slope with temporary ramps or gravel. 
In the unlikely event that a bus has inadequate torque at the driving 
wheels to climb the 20 percent slope, then potential customers will 
likely want to know that limitation. If a bus is unable to navigate the 
ascent in order to complete the brake test, a bus could be assisted 
into position using a tow truck.
    The operator has existing procedures in place to address damages 
that may occur to buses at the testing facility. These procedures will 
apply to any damages that may occur on the brake testing slope.

2. Emissions Test Procedure

    FTA proposed a draft emissions test procedure based on 40 CFR part 
86--``Emissions Regulations for New Otto-Cycle and Diesel Heavy-Duty 
Engines; Gaseous and Particulate Exhaust Test Procedures'' and 40 CFR 
part 1065--``Engine Testing Procedures,'' as well as the Society of 
Automotive Engineers

[[Page 51085]]

(SAE) Recommended Practice, SAE J2711.
    FTA proposed using an emissions testing laboratory equipped with a 
chassis dynamometer capable of both absorbing and applying power. FTA 
proposed measuring the emissions of exhaust constituents regulated by 
the United States Environmental Protection Agency (EPA) for transit 
buses, plus carbon dioxide (CO<INF>2</INF>) and methane 
(CH<INF>4</INF>), as the bus is operated over industry-standard driving 
cycles specified in the test procedure. FTA proposed that mileage 
accumulated by a bus while operating on the dynamometer during 
emissions testing would be counted toward the ``other'' miles that must 
be accumulated during durability testing. Under the proposed test 
procedure, the dynamometer would be set to simulate curb weight plus 
one-half of the fully seated load for the particular bus being tested. 
This approach would be consistent with the above-cited industry 
standard emissions measurement protocols and will facilitate direct 
comparisons with emissions measurements collected outside the bus 
testing program. FTA also sought comments on the merits of performing 
the emissions tests with the chassis dynamometer set to simulate gross 
vehicle weight, which would generally be expected to represent the 
``worst case'' for emissions, seated load weight, which may result in 
emissions measurements closer to a typical case (and which would be 
consistent with the Performance and Fuel Economy tests, which are 
currently performed at seated load weight), or a different weight. FTA 
also sought comments on whether, and if so, how, the maintainability 
test should be modified to capture useful data related to the emissions 
control system and whether any such changes should be made within the 
regulation itself or in non-regulatory testing policies and procedures 
administered by the testing facility. FTA proposed to add the emissions 
test as a separate, eighth, test category.
A. Comments Received
    The transit operator and the transit industry association both 
suggested that FTA test emissions at gross vehicle weight in order to 
shed light on the ``worst case'' emissions that might be produced by a 
bus model. These commenters also recommended that FTA measure emissions 
at a bus's tailpipe rather than at its engine. The bus manufacturer 
suggested that FTA's emissions testing procedure should be consistent 
with other accepted methodologies in order to facilitate comparisons 
with other sources of emissions data.
B. FTA Response
    FTA considered testing emissions at gross vehicle weight, but 
decided to test buses at curb weight plus one-half of the seated load 
weight in order to achieve greater consistency with industry-standard 
methods for emissions testing. FTA initially proposed to, and still 
intends to, measure bus emissions at the tailpipe exit rather than at 
the engine exhaust ports. Any confusion regarding the measurement site 
probably arose from the NPRM's proposed new definition of ``Engine-Out 
Emissions,'' which will not be used in the final rule, and, therefore, 
has been removed.

3. Applicability and Phase-In

    FTA proposed that the date on which a bus testing contract was 
signed would determine the applicability of the brake performance and 
emissions tests. Models whose testing contracts were signed before the 
effective date of this regulation and that continue to be produced 
without major changes in any structure or systems would not be required 
to return to the Bus Testing Center to undergo brake performance and 
emissions testing. Buses for which full or partial testing contracts 
are signed on or after the effective date of this regulation would be 
subject to brake performance and emissions testing (in addition to the 
other testing requirements).
    FTA also sought comments on whether the emissions test should apply 
to all vehicles subject to FTA's bus testing regulation or whether any 
classes of buses should be exempted. In addition, we asked for comments 
on whether the emissions testing program should begin on the effective 
date of this rule for all bus types subject to testing or whether the 
emissions test requirement should be gradually phased-in for various 
classes of bus (e.g., small or large buses), similar to the phase-in 
process used in the initial start-up of FTA's bus testing program.
A. Comments Received
    The large transit operator agreed with FTA's proposal that 
emissions testing should begin on the effective date of the final rule, 
and any new buses should be required to meet the regulations in effect 
at the time of manufacture. The bus manufacturer stated that a single-
stage bus manufacturer certifying to FMVSS 121 should not be required 
to undergo additional testing, and adding additional performance tests 
not consistent with FMVSS 121 could raise suspicions of non-compliance 
without adding to safety or reliability. The bus manufacturer also 
expressed concerns that partial testing evaluations could subject a bus 
model to an undue number of additional tests, particularly when it may 
impact bus delivery schedules.
B. FTA Response
    Because none of the commenters directly responded to FTA's 
inquiries whether a categorical exemption for certain classes of 
vehicles and whether a gradual phase-in period was necessary, FTA will 
proceed with the plan outlined in the NPRM: Every bus model for which a 
full or partial bus testing contract is signed after the effective date 
of this final rule will be subject to brake performance and emissions 
testing, without a phase-in period or exemptions for specific 
categories of vehicles.
    With regard to the suggestion that certification with FMVSS 121 
exempt a vehicle from additional brake testing, FTA believes that a 
simple certification of compliance with FMVSS 121 does not exempt a 
vehicle from the braking test. Although aware that every vehicle 
operating on public roads must certify compliance with FMVSS, Congress 
nevertheless mandated that FTA establish the bus testing program, 
specifically adding a braking performance test, while giving FTA no 
statutory authority to exempt vehicles that certified compliance with 
FMVSS 121 or any other FMVSS requirement. Moreover, FTA's bus testing 
program consists of actual tests, while FMVSS compliance is met by the 
signing of a certificate of compliance.
    FTA does not believe that the addition of braking performance and 
emissions testing will unduly delay delivery schedules. Under the 
existing regulation a bus subject to testing as a new model bus or as a 
modified model bus must be physically delivered to Altoona and must 
spend a predictable number of days at the testing facility. The 
addition of braking and emissions testing would add a maximum of 24 
working hours to the time presently required at the test facility. When 
contrasted to the 60 or more days a heavy-duty model bus would spend at 
the test facility for a full test, an additional three business days 
would not significantly delay delivery schedules and perhaps could even 
be accounted for in a manufacturer's proposed delivery schedule.

4. Partial Testing

    Under the current rule, partial testing is permitted when a 
previously-tested bus model undergoes changes in configuration or 
components that are

[[Page 51086]]

expected to produce significantly different data from that previously 
obtained at the Bus Testing Facility. These partial testing 
determinations are made on a case-by-case basis, using criteria set 
forth in the June 28, 1992, final rule that established partial testing 
(57 FR 33394). FTA sought comment on changes that could trigger partial 
testing for the brake performance and emissions tests.
A. Comments Received
    The only commenter, a large bus manufacturer, did not address FTA's 
request for substantive comments. This commenter only stated that FTA 
needed to implement a policy that would provide faster responses to 
partial testing determinations.
B. FTA Response
    Without substantive input from commenters, FTA will continue to 
make requests for partial testing determinations on a case-by-case 
basis. To provide additional guidance to purchasers, manufacturers, and 
vendors, FTA has posted its partial testing guidelines on its bus 
testing Web site. Manufacturers seeking formal letters of determination 
must wait for FTA to conduct its case-by-case analysis.

5. Reporting Procedures

    FTA sought comment on how to better present data collected from the 
brake performance and emissions tests in the bus testing reports as 
well as in the bus testing database. FTA also welcomed comments on how 
to present more effectively the data from any of the eight test 
categories.
A. Comments Received
    None of the commenters provided comment on this request.
B. FTA Response
    FTA will continue using the standard test report procedure, adding 
braking performance and emissions as additional categories to the test 
reports. FTA may make changes to the test report format and/or emphasis 
in the future in order to present bus testing data more clearly and 
effectively.

Other Changes

6. Service Life Category

    FTA sought comments on whether it should maintain its current 
requirement of allowing manufacturers to determine the useful life 
category in which their buses would be tested. In addition, FTA asked 
for comment on whether it should continue to expect grantees to 
evaluate the bus testing reports carefully to assess whether the bus 
will in fact adequately meet its service life requirements.
    FTA also sought comments on alternative policies for determining 
the service life category in which a particular bus model would be 
tested, such as (1) redefining the characteristics of buses in each 
service life category, and if that approach is taken, what those 
characteristics should be; (2) requiring manufacturers to request an 
official determination from FTA of a vehicle's service life category; 
or (3) providing guidance on the standard useful life based on type of 
construction but allowing manufacturers to test and sell in higher 
service life categories if they post a ``durability assurance'' bond or 
similar instrument.
A. Comments Received
    All three commenters on this subject supported the retention of the 
current FTA requirement. The manufacturer of large buses stated that it 
is the purchaser's responsibility to review the test report and 
determine whether the vehicle is adequate to meet their needs. The 
trade association and transit operator also supported this approach and 
added that manufacturers should provide proof to the operator that the 
bus will meet the standards of the higher service life category. The 
transit operator proposed additional language that would provide the 
customer a ``durability assurance bond'' or similar instrument that 
would cover the vehicle's advertised useful standard life.
B. FTA Response
    Based on the response from commenters, FTA does not believe that 
altering the current procedures is warranted. Although manufacturers 
may continue to select the appropriate service life category for 
testing, FTA believes that well-informed purchasers are the best 
safeguard--to that point, bus purchasers are advised to seek adequate 
assurances from the vendor in the form of extended warranties or 
contractual assurances that the vehicle will meet its advertised 
service life.

7. Buses That Exceed Weight Limits When Fully Loaded

    In the NPRM, FTA made note of the fact that a number of buses 
tested at the Bus Testing Center have not been tested in their fully 
loaded condition (i.e., with all seats and standee positions occupied), 
since doing so would have caused their actual weight to exceed either 
their gross vehicle weight ratings (GVWR) or a front or rear gross axle 
weight rating (GAWR).
    FTA noted that the test data might not reflect the actual 
performance of these buses in real-life service, where operators 
frequently allow all seats and aisles to be filled without regard to 
the GVWR or GAWR to avoid leaving passengers behind at a stop. FTA 
sought comments on the following three approaches for addressing these 
situations:
    1. Require that any tests specified in the test procedures be 
performed at gross vehicle weight (GVW) on the test track (which is not 
a public roadway) with all seats and standee positions ballasted, and 
require any tests specified in the test procedures be performed at 
seated load weight (SLW) on the test track with all seats ballasted. 
Although the bus would be overloaded, the test data may be more 
representative of the conditions the bus will face in actual service. 
This approach would help to ``flag'' buses that are not adequately able 
to withstand the rigors of transit service.
    2. Continue the current practice of deleting ballast until the bus 
is within its GVWR/GAWR, but place a more prominent notice in the bus 
testing report stating that the bus will exceed its maximum GVWR/GAWR 
with all passenger positions occupied, and alert readers that the test 
data may not be representative of the vehicle's actual in-service 
durability.
    3. Decline to test a bus that exceeds its GAWR or GVWR when loaded 
to full capacity.
A. Comments Received
    Three commenters--the large industry trade association, the large 
transit agency, and the large bus manufacturer--supported continuing 
with the current practice outlined under Option 2, noting its 
practicability. The transit operator suggested testing a vehicle at its 
GVW on the test track, regardless of the vehicle's GVWR. The 
manufacturers' association supported Option 3, proposing that FTA 
decline to test any vehicle that exceeded its GVWR.
    FTA also received unsolicited suggestions from two commenters, 
recommending that FTA increase the simulated ballast weight from the 
currently-used 150 pounds per passenger cited in the new definitions of 
``gross vehicle weight'' and ``seated load weight'' proposed in the 
NPRM, to 170 pounds per passenger to reflect the increasing average 
weight of Americans over the last several decades.
B. FTA Response
    FTA finds that declining to test a vehicle whose GVW exceeds its 
GVWR is impractical, noting that the entire purposes of the bus testing 
program is to carry out the legislative mission of

[[Page 51087]]

verifying that the bus can withstand the rigors of regular transit 
service. Similarly, testing a bus up to its GVWR but no higher, despite 
the inability to embark the equivalent of a full complement of 
passengers, is unrealistic and contrary to the intent of Congress in 
establishing the program. Buses frequently fill every available seat 
during rush-hour, and commonly allow ``crush loads'' of standees in the 
aisle.
    Therefore, the final rule will require buses to be ballasted with a 
fully loaded passenger complement of seated and standee passengers 
during the gross vehicle weight portion and with all seats filled 
during the seated load weight portion of the testing. If the vehicle 
exceeds its GVWR, the bus will be tested in that condition only on the 
operator's non-public testing facilities unless and until the operator 
receives an exemption to operate the vehicle on public roads. Data on 
how a bus performs under full load conditions is essential to the 
purchaser, to support acquisition decisions, development of preventive 
maintenance schedules, and budgeting for unscheduled maintenance.
    The suggestion to increase the average passenger weight is well 
taken, and currently, the U.S. Department of Transportation is 
considering this subject in the context of all modes of transportation: 
air, surface, and water. It is quite possible the Department will seek 
to establish higher value for average passenger weight. If so, FTA 
would initiate a new rulemaking to amend Part 665 accordingly. FTA will 
consult with the Department on this subject in the very near future.

8. Family of Vehicles

    FTA sought comments on whether it would be appropriate to expand 
its existing ``Family of Vehicles'' policy to the 7-year or higher 
service life categories. The existing Family of Vehicles policy is 
limited to buses in the 4-year and 5-year service life categories only, 
and allows manufacturers that have tested a complete bus built on one 
third-party chassis to offer closely-related variants (such as 
different lengths) of that bus body on the same or different (but 
similar) mass-produced chassis that has been tested at the Bus Testing 
Center on any similar bus by any bus manufacturer. FTA sought comments 
on the desirability and ramifications of extending the Family of 
Vehicles policy to all buses built on third-party chassis
A. Comments Received
    The large industry trade association opposed the proposal, stating 
that the 4- and 5-year buses are used differently than the larger 
vehicles, and that such a proposal would increase prices without 
increasing the quality of the vehicles. The large transit agency also 
recommended that FTA keep its current requirement, noting that the 4- 
and 5-year buses are not used in standard transit service.
B. FTA Response
    Given the lack of support among commenters for the proposed 
expansion of the concept, FTA is retaining its Family of Vehicles 
policy for 4- and 5-year buses and will not expand it to include buses 
used in higher service life categories.

9. Separate Reporting of Third-Part Chassis Test Results

    Although Section 5318 directs that buses are to be tested as an 
integrated system, FTA's Family of Vehicles policy described in the 
previous paragraphs would be easier to implement and understand if the 
Bus Testing Center were able to produce separate testing reports for 
third-party chassis. These reports could be prepared by identifying, 
separating out, and summarizing only the chassis-related data during 
tests of buses built on third-party chassis. The Bus Testing Center 
operator expressed concern that in past experience, a significant 
number of buses are tested on modified third-party chassis, and these 
modifications, even if performed in strict compliance with the 
manufacturer's guidelines, would frustrate comparisons of data on 
third-party chassis. Therefore, FTA sought comments on the feasibility 
of preparing separate test reports for third-party chassis that are 
tested in the course of testing complete buses built on those chassis. 
FTA also sought comments on any practical considerations that may need 
to be addressed or difficulties that may be presented, as well as the 
best ways to separate and report data on third-party chassis. Finally, 
FTA sought comments on how the costs of this additional reporting would 
be borne.
A. Comments Received
    FTA received two comments on this proposal--one from the large 
trade association, another from the large transit agency. The transit 
agency recommended preparation of separate third-party test reports, 
with costs to be negotiated between the chassis maker and purchasers. 
The trade association similarly commented that the costs should be 
negotiated, but did not address whether separate chassis reports are 
desirable.
B. FTA Response
    Because the design, engineering, and manufacturing, and quality 
control of third-party chassis are the same regardless of the final 
customer, there may be little differentiation in test data when a 
particular third-party chassis is used on similar buses built by 
multiple bus manufacturers. FTA believes that some of the test data 
obtained from testing a vehicle using a third-party chassis already can 
be extrapolated to similar buses built on the same chassis through the 
partial testing process.
    The regulation's existing partial testing provisions permit partial 
testing of previously tested bus models that are subsequently produced 
with changes in configuration or components, requiring additional 
testing only where significant changes in data are expected, including 
changes in chassis components, such as engines, axles, suspensions, and 
powertrains. Under these partial testing procedures, if a manufacturer 
of a fully-tested vehicle wants to offer that same vehicle using a 
different but already-tested third-party chassis, FTA will require only 
those tests where significant changes in data are expected--expecting 
that data intrinsic to the chassis can be extrapolated from the 
previous bus testing report using that chassis. The current process 
reduces the costs and testing requirements; however, to increase 
convenience and clarity for bus purchasers, FTA will continue to 
explore the feasibility of issuing separate test reports for third-
party chassis.

10. FTA Evaluation/Recommendation of Bus Models

    In response to a number of informal suggestions received in the 
past that FTA issue ``pass/fail'' determinations for buses in the bus 
testing reports, FTA sought comments in the NPRM on whether the bus 
testing reports should include a ``pass/fail'' criterion or a 
``recommended/not-recommended'' determination, and if so, how 
thresholds for such determinations should be established. 
Alternatively, FTA sought comments on improved ways to enhance the 
presentation of data in the reports (e.g., by presenting data 
graphically) so that information for decision-making is more readily 
apparent and better informs local decision-making.
A. Comments Received
    FTA received two comments on this subject--one from a bus 
manufacturer, and one from an equipment manufacturers association. The 
bus

[[Page 51088]]

manufacturer stated that FTA should not make pass/fail determinations, 
noting that it should be the customer's prerogative and responsibility. 
The equipment manufacturer association stated that FTA should establish 
pass/fail criteria, at least for braking criteria.
B. FTA Response
    FTA found the dearth of comments regarding the establishment of 
pass/fail criteria disappointing, based on pre-rulemaking comments from 
the presumed beneficiaries of pass/fail criteria, namely, the transit 
agencies that purchase the vehicles. FTA sought substantive comments on 
possible criteria and thresholds. In the absence of comments supporting 
such an approach, FTA will not proceed with establishing pass/fail 
criteria at this time. FMVSS 121 already includes pass/fail criteria 
for braking performance, so a separate criterion in the bus testing 
reports is not necessary and could be confusing.

11. Scope

    Paragraph 665.3 is being amended to bring it into statutory 
conformity. Section 317 of the Surface Transportation and Uniform 
Relocation Assistance Act of 1987 initially limited applicability of 
the bus testing program to recipients of FTA funding under the former 
sections 3, 9, 16(b)(2), and 18 programs. Paragraph 3023(c) of the 
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users amended 49 USC 5318, paragraph (e), to extend the bus 
testing requirement to all new bus models acquired with funds under 49 
USC Chapter 53. The statutory change is not significant, as practically 
all buses subject to the testing requirements are acquired with funds 
authorized under one of those four programs.

Regulatory Analyses and Notices

    All comments received are available for examination in the docket 
at http://www.regulations.gov. All comments have been fully considered 
in this final rule.

A. Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under the authority of 49 U.S.C. 5318, as 
amended by section 3020 of SAFETEA-LU (Pub. L. 109-59).

B. Executive Order 13132: Federalism

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect 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. This final action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132, and FTA has determined that this final action will not 
have sufficient federalism implications to warrant additional 
consultation. FTA has also determined that this final action will not 
preempt any State law or State regulation or affect the States' ability 
to discharge traditional governmental functions.

C. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175 requires agencies to assure meaningful and 
timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. FTA has analyzed this final rule under Executive 
Order 13175 and believes that this final action will not have 
substantial, direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal laws. Therefore, a tribal 
impact statement is not required. FTA received no comments on the NPRM 
from Indian tribal governments.

D. Regulatory Flexibility Act and Executive Order 13272: Proper 
Consideration of Small Entities in Agency Rulemaking

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
and Executive Order 13272, FTA must consider whether a proposed rule 
would have a significant economic impact on a substantial number of 
small entities. ``Small entities'' include small businesses, not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with 
populations under 50,000. FTA certifies that this final rule will not 
have a significant economic impact on substantial number of small 
entities.

E. Executive Order 12866 and DOT Regulatory Policies and Procedures

    FTA has determined that this action is not considered a significant 
regulatory action under Executive Order 12866 and the Regulatory 
Policies and Procedures of the Department of Transportation (44 FR 
11032). Executive Order 12866 requires agencies to regulate in the 
``most cost-effective manner,'' to make a ``reasoned determination that 
the benefits of the intended regulation justify its costs,'' and to 
develop regulations that ``impose the least burden on society.'' 
Although some of the changes made by this rule are statutorily 
mandated, FTA anticipates that the direct economic impact of this 
rulemaking will be minimal and has actively sought to minimize the bus 
testing burden, including the continued availability of partial testing 
procedures.
    This final rule also clarifies existing regulatory requirements 
that will not adversely affect, in any material way, any sector of the 
economy. In addition, these changes will not interfere with any action 
taken or planned by another agency and will not materially alter the 
budgetary impact of any entitlements, grants, user fees, or loan 
programs.

F. Unfunded Mandates Reform Act of 1995

    This final rule will not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This final rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$128.1 million or more in any one year (2 U.S.C. 1532).

G. Executive Order 13211: Energy Effects

    FTA has analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use dated May 18, 2001, and determined that this is 
not a significant energy action under that order, because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects is not required.

H. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to a collection of information unless it displays a valid OMB 
control number. This final rule does not propose any new information 
collection burdens.

I. Regulation Identifier Number (RIN)

    The U.S. DOT 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. The RIN number contained in the 
heading of this

[[Page 51089]]

document may be used to cross-reference this action with the Unified 
Agenda.

J. Privacy Act

    Anyone is able to search the electronic form for all comments 
received into any of our dockets by the name of the individual 
submitting the comments (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may view the U.S. 
DOT Privacy Act Statement by visiting http://docketsinfo.dot.gov/ or at 
65 FR 19477 (April 11, 2000).

List of Subjects in 49 CFR Part 665

    Buses, Grant programs--transportation, Motor vehicle safety, Public 
transportation, Reporting and recordkeeping requirements.


0
For the reasons stated in the preamble, the Federal Transit 
Administration revises 49 CFR part 665 to read as follows:

PART 665--BUS TESTING

Subpart A--General
665.1 Purpose.
665.3 Scope.
665.5 Definitions.
665.7 Grantee certification of compliance.
Subpart B--Bus Testing Procedures
665.11 Testing requirements.
665.13 Test report and manufacturer certification.
Subpart C--Operations
665.21 Scheduling.
665.23 Fees.
665.25 Transportation of vehicle.
665.27 Procedures during testing.
Appendix A to Part 665--Tests To Be Performed at the Bus Testing 
Facility

    Authority: 49 U.S.C. 5318 and 49 CFR 1.51.

Subpart A--General


Sec.  665.1  Purpose.

    An applicant for Federal financial assistance under the Federal 
Transit Act for the purchase or lease of buses with funds obligated by 
the FTA shall certify to the FTA that any new bus model acquired with 
such assistance has been tested in accordance with this part. This part 
contains the information necessary for a recipient to ensure compliance 
with this provision.


Sec.  665.3  Scope.

    This part shall apply to an entity receiving Federal financial 
assistance under 49 U.S.C. Chapter 53.


Sec.  665.5  Definitions.

    As used in this part--
    Administrator means the Administrator of the Federal Transit 
Administration or the Administrator's designee.
    Automotive means that the bus is not continuously dependent on 
external power or guidance for normal operation. Intermittent use of 
external power or guidance shall not automatically relieve a bus of its 
automotive character or requirement for bus testing.
    Bus means a rubber-tired automotive vehicle used for the provision 
of public transportation service by or for a recipient.
    Bus model means a bus design or variation of a bus design usually 
designated by the manufacturer by a specific name and/or model number.
    Bus testing facility means the bus testing facility established by 
the Secretary of Transportation, and includes test track facilities 
operated in connection with the facility.
    Bus testing report, also full bus testing report, means a complete 
test report for a bus model, documenting the results of performing the 
complete set of bus tests on that bus model.
    Curb weight means the weight of the empty, ready-to-operate bus 
plus driver and fuel.
    Emissions means the components of the engine tailpipe exhaust that 
are regulated by the United States Environmental Protection Agency 
(EPA), plus carbon dioxide (CO<INF>2</INF>) and methane 
(CH<INF>4</INF>).
    Emissions control system means the components on a bus whose 
primary purpose is to minimize regulated emissions before they reach 
the tailpipe exit. This definition does not include components that 
contribute to low emissions as a side effect of the manner in which 
they perform their primary function (e.g., fuel injectors or combustion 
chambers).
    Final acceptance means that a recipient has released the FTA-
provided funds to a bus manufacturer or dealer in connection with bus 
procurement.
    Gross weight, also gross vehicle weight, means the curb weight of 
the bus plus passengers simulated by adding 150 pounds of ballast to 
each seating position and 150 pounds for each standing position 
(assumed to be each 1.5 square feet of free floor space).
    Hybrid means a propulsion system that combines two power sources, 
at least one of which is capable of capturing, storing, and re-using 
energy.
    Major change in chassis design means, for vehicles manufactured on 
a third-party chassis, a change in frame structure, material or 
configuration, or a change in chassis suspension type.
    Major change in components means:
    (1) For those vehicles that are not manufactured on a third-party 
chassis, a change in a vehicle's engine, axle, transmission, 
suspension, or steering components;
    (2) For those that are manufactured on a third-party chassis, a 
change in the vehicle's chassis from one major design to another.
    Major change in configuration means a change that is expected to 
have a significant impact on vehicle handling and stability or 
structural integrity.
    Modified third-party chassis or van means a vehicle that is 
manufactured from an incomplete, partially assembled third-party 
chassis or van as provided by an OEM to a small bus manufacturer. This 
includes vehicles whose chassis structure has been modified to include: 
a tandem or tag axle; a drop or lowered floor; changes to the GVWR from 
the OEM rating; or other modifications that are not made in strict 
conformance with the OEM's modifications guidelines.
    New bus model means a bus model that--
    (1) Has not been used in public transportation service in the 
United States before October 1, 1988; or
    (2) Has been used in such service but which after September 30, 
1988, is being produced with a major change in configuration or a major 
change in components.
    Operator means the operator of the bus testing facility.
    Original equipment manufacturer (OEM) means the original 
manufacturer of a chassis or van supplied as a complete or incomplete 
vehicle to a bus manufacturer.
    Parking brake means a system that prevents the bus from moving when 
parked by preventing the wheels from rotating.
    Partial testing means the performance of only that subset of the 
complete set of bus tests in which significantly different data would 
reasonably be expected compared to the data obtained in previous full 
testing of the baseline bus model at the bus testing facility.
    Partial testing report, also partial test report, means a report 
documenting, for a previously-tested bus model that is produced with 
major changes, the results of performing only that subset of the 
complete set of bus tests in which significantly different data would 
reasonably be expected as a result of the changes made to the bus from 
the configuration documented in the original full bus testing report. A 
partial testing report is not valid unless accompanied by the full bus 
testing report for the corresponding baseline bus configuration.
    Public transportation service means the operation of a vehicle that 
provides

[[Page 51090]]

general or special service to the public on a regular and continuing 
basis.
    Recipient means an entity that receives funds under 49 U.S.C. 
Chapter 53, either directly from FTA or through a State administering 
agency.
    Regenerative braking system means a system that decelerates a bus 
by recovering its kinetic energy for on-board storage and subsequent 
use.
    Retarder means a system other than the service brakes that slows a 
bus by dissipating kinetic energy.
    Seated load weight means the weight of the bus plus driver, fuel, 
and seated passengers simulated by adding 150 pounds of ballast to each 
seating position.
    Service brake(s) means the primary system used by the driver during 
normal operation to reduce the speed of a moving bus and to allow the 
driver to bring the bus to a controlled stop and hold it there. Service 
brakes may be supplemented by retarders or by regenerative braking 
systems.
    Small bus manufacturer means a secondary market assembler that 
acquires a chassis or van from an original equipment manufacturer for 
subsequent modification or assembly and sale as 5-year/150,000-mile or 
4-year/100,000-mile minimum service life vehicle.
    Tailpipe emissions means the exhaust constituents actually emitted 
to the atmosphere at the exit of the vehicle tailpipe or corresponding 
system.
    Third party chassis means a commercially available chassis whose 
design, manufacturing, and quality control are performed by an entity 
independent of the bus manufacturer.
    Unmodified mass-produced van means a van that is mass-produced, 
complete and fully assembled as provided by an OEM. This shall include 
vans with raised roofs, and/or wheelchair lifts, or ramps that are 
installed by the OEM, or by a party other than the OEM provided that 
the installation of these components is completed in strict conformance 
with the OEM modification guidelines.
    Unmodified third-party chassis means a third-party chassis that 
either has not been modified, or has been modified in strict 
conformance with the OEM's modification guidelines.


Sec.  665.7  Grantee certification of compliance.

    (a) In each application to FTA for the purchase or lease of any new 
bus model, or any bus model with a major change in configuration or 
components to be acquired or leased with funds obligated by the FTA, 
the recipient shall certify that the bus was tested at the bus testing 
facility. The recipient shall receive the appropriate full bus testing 
report and any applicable partial testing report(s) before final 
acceptance of the first vehicle by the recipient.
    (b) In dealing with a bus manufacturer or dealer, the recipient 
shall be responsible for determining whether a vehicle to be acquired 
requires full testing or partial testing or has already satisfied the 
requirements of this part.

Subpart B--Bus Testing Procedures


Sec.  665.11  Testing requirements.

    (a) A new bus model to be tested at the bus testing facility 
shall--
    (1) Be a single model;
    (2) Meet all applicable Federal Motor Vehicle Safety Standards, as 
defined by the National Highway Traffic Safety Administration in Part 
571 of this title; and
    (3) Be substantially fabricated and assembled using the techniques, 
tooling, and materials that will be used in production of subsequent 
buses of that model.
    (b) If the new bus model has not previously been tested at the bus 
testing facility, then the new bus model shall undergo the full tests 
requirements for Maintainability, Reliability, Safety, Performance 
including braking performance, Structural Integrity, Fuel Economy, 
Noise, and Emissions;
    (c) If the new bus model has not previously been tested at the bus 
testing facility and is being produced on a third-party chassis that 
has been previously tested on another bus model at the bus testing 
facility, then the new bus model may undergo partial testing 
requirements;
    (d) If the new bus model has previously been tested at the bus 
testing facility, but is subsequently manufactured with a major change 
in chassis or components, then the new bus model may undergo partial 
testing.
    (e) The following vehicle types shall be tested:
    (1) Large-size, heavy-duty transit buses (approximately 35'-40' in 
length, as well as articulated buses) with a minimum service life of 12 
years or 500,000 miles;
    (2) Medium-size, heavy-duty transit buses (approximately 30' in 
length) with a minimum service life of ten years or 350,000 miles;
    (3) Medium-size, medium duty transit buses (approximately 30' in 
length) with a minimum service life of seven years or 200,000 miles;
    (4) Medium-size, light duty transit buses (approximately 25'-35' in 
length) with a minimum service life of five years or 150,000 miles; and
    (5) Other light duty vehicles such as small buses and regular and 
specialized vans with a minimum service life of four years or 100,000 
miles.
    (f) Tests performed in a higher service life category (i.e., longer 
service life) need not be repeated when the same bus model is used in 
lesser service life applications.
    (g) The operator of the bus testing facility shall develop a test 
plan for the testing of vehicles at the facility. The test plan shall 
follow the guidelines set forth in the appendix to this part.


Sec.  665.13  Test report and manufacturer certification.

    (a) Upon completion of testing, the operator of the facility shall 
provide the resulting test report to the entity that submitted the bus 
for testing.
    (b)(1) A manufacturer or dealer of a new bus model or a bus 
produced with a major change in component or configuration shall 
provide a copy of the corresponding full bus testing report and any 
applicable partial testing report(s) to a recipient during the point in 
the procurement process specified by the recipient, but in all cases 
before final acceptance of the first bus by the recipient.
    (2) A manufacturer who releases a report under paragraph (b)(1) of 
this section also shall provide notice to the operator of the facility 
that the report is available to the public.
    (c) If a bus model subject to a bus testing report has a change 
that is not a major change under this Part, the manufacturer or dealer 
shall advise the recipient during the procurement process and shall 
include a description of the change and the manufacturer's basis for 
concluding that it is not a major change.
    (d) A bus testing report shall be available publicly once the bus 
manufacturer makes it available during a recipient's procurement 
process. The operator of the facility shall have copies of all the 
publicly available reports available for distribution.
    (e) The bus testing report is the only information or documentation 
that shall be made publicly available in connection with any bus model 
tested at the bus testing facility.

Subpart C--Operations


Sec.  665.21  Scheduling.

    (a) To schedule a bus for testing, a manufacturer shall contact the 
operator of FTA's bus testing program. Contact information and 
procedures are available on the operator's bus testing Web site, http://www.altoonabustest.com.

[[Page 51091]]

    (b) Upon contacting the operator, the operator shall provide the 
manufacturer with the following:
    (1) A draft contract for the testing;
    (2) A fee schedule; and
    (3) The draft test procedures that will be conducted on the 
vehicle.
    (c) The operator shall provide final test procedures to be 
conducted on the vehicle at the time of contract execution.
    (d) The operator shall process vehicles for testing in the order in 
which the contracts are signed.


Sec.  665.23  Fees.

    (a) The operator shall charge fees in accordance with a schedule 
approved by FTA, which shall include prorated fees for partial testing.
    (b) Fees shall be prorated for a vehicle withdrawn from the bus 
testing facility before the completion of testing.


Sec.  665.25  Transportation of vehicle.

    A manufacturer shall be responsible for transporting its vehicle to 
and from the bus testing facility at the beginning and completion of 
the testing at the manufacturer's own risk and expense.


Sec.  665.27  Procedures during testing.

    (a) The operator shall perform all maintenance and repairs on the 
test vehicle, consistent with the manufacturer's specifications, unless 
the operator determines that the nature of the maintenance or repair is 
best performed by the manufacturer under the operator's supervision.
    (b) The manufacturer shall be permitted to observe all tests. The 
manufacturer shall not provide maintenance or service unless requested 
to do so by the operator.

Appendix A to Part 665--Tests To Be Performed at the Bus Testing 
Facility

    The eight tests to be performed on each vehicle are required by 
SAFETEA-LU and are based in part on tests described in the FTA 
report ``First Article Transit Bus Test Plan,'' which is mentioned 
in the legislative history of section 317 of STURAA. When 
appropriate, Society of Automotive Engineers (SAE) test procedures 
and other procedures accepted by the transit industry will be used. 
The eight tests are described in general terms in the following 
paragraphs.

1. Maintainability

    The maintainability test should include bus servicing, 
preventive maintenance, inspection, and repair. It also should 
include the removal and reinstallation of the engine and drive train 
components that would be expected to require replacement during the 
bus's normal life cycle. Much of the maintainability data should be 
obtained during the bus durability test at the test track. Up to 
twenty-five percent of the bus life should be simulated and 
servicing, preventive maintenance, and repair actions should be 
recorded and reported. These actions should be performed by test 
facility staff, although manufacturers should be allowed to maintain 
a representative on site during the testing. Test facility staff may 
require a manufacturer to provide vehicle servicing or repair, under 
the supervision of the facility staff. Because the operator will not 
become familiar with the detailed design of all new bus models that 
are tested, tests to determine the time and skill required to remove 
and reinstall an engine, a transmission, or other major propulsion 
system components may require advice from the bus manufacturer. All 
routine and corrective maintenance should be carried out by the test 
operator in accordance with the manufacturer's specifications.
    The maintainability test report should include the frequency, 
personnel hours, and replacement parts or supplies required for each 
action during the test. The accessibility of selected components and 
other observations that could be important to a bus user should be 
included in the report.

2. Reliability

    Reliability should not be a separate test, but should be 
addressed by recording all bus failures and breakdowns during 
testing. It is recognized that with one test bus it is not feasible 
to conduct statistical reliability tests. The detected bus failures, 
repair time, and the actions required to return the bus to operation 
should be recorded in the report.

3. Safety

    The safety test should consist of a handling and stability test. 
The handling and stability test should be an obstacle avoidance or 
double-lane change test performed at the test track. Bus speed 
should be held constant throughout a given test run. Individual test 
runs should be made at increasing speeds up to a specified maximum 
or until the bus can no longer be operated safely over the course, 
whichever speed is lower. Both left- and right-hand lane changes 
should be tested.

4. Performance

    The performance test should be performed on the test track and 
should measure acceleration, maximum speed attained, gradeability, 
and braking. The bus should be accelerated at full throttle from a 
full stop to maximum safe speed on the track. The gradeability 
capabilities should be measured when starting from a full stop on a 
steep grade, and supplemented by calculating gradeability based on 
the acceleration data. The functionality and performance of the 
service, regenerative (if applicable), and parking brake systems 
should be evaluated at the test track. The test bus should be 
subjected to a series of brake stops from specified speeds on high, 
low, and split-friction surfaces. The parking brake should be 
evaluated with the bus parked facing both up and down a steep grade.

5. Structural Integrity

    Two complementary structural integrity tests should be 
performed. Structural strength and distortion tests should be 
performed at the Bus Testing Center, and the structural durability 
test should be performed at the test track.

a. Structural Strength and Distortion Tests

    (1) A shakedown of the bus structure should be conducted by 
loading and unloading the bus with a distributed load equal to 2.5 
times the load applied for the gross weight portions of testing. The 
bus should then be unloaded and inspected for any permanent 
deformation on the floor or coach structure. This test should be 
repeated a second time, and should be repeated up to one more time 
if the permanent deflections vary significantly between the first 
and second tests.
    (2) The bus should be loaded to gross vehicle weight, with one 
wheel on top of a curb and then in a pothole. This test should be 
repeated for all four wheels. The test verifies: normal operation of 
the steering mechanism; and operability of all passenger doors, 
passenger escape mechanisms, windows, and service doors. A water 
leak test should be conducted in each suspension travel condition.
    (3) Using a load-equalizing towing sling, a static tension load 
equal to 1.2 times the curb weight should be applied to the bus 
towing fixtures (front and rear). The load should be removed and the 
two eyes and adjoining structure inspected for damages or permanent 
deformations.
    (4) The bus should be towed at curb weight with a heavy wrecker 
truck for several miles and then inspected for structural damage or 
permanent deformation.
    (5) With the bus at curb weight probable damages and clearance 
issues due to tire deflating and jacking should be assessed.
    (6) With the bus at curb weight possible damages or deformation 
associated with lifting the bus on a two post hoist system or 
supporting it on jack stands should be assessed.

b. Structural Durability

    The structural durability test should be performed on the 
durability course at the test track, simulating twenty-five percent 
of the vehicle's normal service life. The bus structure should be 
inspected regularly during the test, and the mileage and 
identification of any structural anomalies and failures should be 
reported in the reliability test.

6. Fuel Economy

    The fuel economy test should be conducted using duty cycles that 
simulate transit service. This test should measure the fuel economy 
of the bus in miles per gallon or other energy-equivalent units.
    The fuel economy test should be designed only to enable FTA 
recipients to compare the relative fuel economy of buses operating 
at a consistent loading condition on the same set of typical transit 
driving cycles. The results of this test are not directly comparable 
to fuel economy estimates by other agencies, such as the U.S. 
Environmental Protection Agency (EPA) or for other purposes.

7. Noise

    The noise test should measure interior noise and vibration while 
the bus is idling (or in a comparable operating mode) and driving,

[[Page 51092]]

and also should measure the transmission of exterior noise to the 
interior while the bus is not running. The exterior noise should be 
measured as the bus is operated past a stationary measurement 
instrument.

8. Emissions

    The emissions test should measure tailpipe emissions of those 
exhaust constituents regulated by the United States Environmental 
Protection Agency (EPA) for transit bus emissions, plus carbon 
dioxide (CO<INF>2</INF>) and methane (CH<INF>4</INF>), as the bus is 
operated over specified driving cycles. The emissions test should be 
conducted using an emissions testing laboratory equipped with a 
chassis dynamometer capable of both absorbing and applying power.
    The emissions test is not a certification test, and is designed 
only to enable FTA recipients to compare the relative emissions of 
buses operating on the same set of typical transit driving cycles. 
The results of this test are not directly comparable to emissions 
measurements obtained by other agencies, such as the EPA, which are 
used for other purposes.

Peter M. Rogoff,
Administrator.
[FR Doc. E9-23818 Filed 10-2-09; 8:45 am]
BILLING CODE 4910-57-P


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