Federal Register / Vol. 63, No. 138 / Monday, July 20, 1998 / Proposed Rules 38791

the comment closing date will be filed

in the docket and will be considered to

the extent practicable, but the FHWA

may issue an NPRM at any time after the

close of the comment period. In

addition to late comments, the FHWA

will also continue to file, in the docket,

relevant information that becomes

available after the comment closing

date, and interested persons should

continue to examine the docket for new

material.

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this

document does not contain a significant

regulatory action under Executive Order

12866. The FHWA does not know what

direction this rulemaking will take,

however, it does not expect that this

rulemaking will be inconsistent with

any other agency actions or materially

alter the budgetary impact of any

entitlements, grants, user fees, or loan

programs. The FHWA anticipates that

the costs of any rulemaking action that

might be implemented in response to

comments received would be no greater

than the motor carrier’s current costs of

complying with the regulatory

requirements. At this preliminary stage,

we do not anticipate that any regulatory

action taken in response to comments

introduced here would be of sufficient

economic magnitude to warrant a full

regulatory evaluation.

Regulatory Flexibility Act

Although this document does not

include any specific proposal at this

time, the FHWA believes this action

will not lead to a proposed rule that

would have a significant economic

impact on a substantial number of small

motor carriers.

To meet the requirements of the

Regulatory Flexibility Act (5 U.S.C.

601–612), however, the FHWA would

evaluate the effects on small entities of

any rule promulgated in subsequent

phases of this proceeding. Therefore, the

agency is particularly interested in

comments from small entities on

whether there are impacts from this

action and how those impacts may be

minimized.

Unfunded Mandates Reform Act of

1995

The FHWA will analyze any proposed

rule to determine whether it would

result in the expenditure by State, local,

and tribal governments, in the aggregate,

or by the private sector, of $100 million

or more in any one year, as required by

the Unfunded Mandates Reform Act of

1995 (2 U.S.C. 1532).

Executive Order 12612 (Federalism

Assessment)

The FHWA will analyze any proposed

rule using the principles and criteria

contained in Executive Order 12612 to

determine whether the proposal would

have sufficient federalism implications

to warrant the preparation of a

federalism assessment. The FHWA does

not expect that any action developed in

response to comments introduced here

would infringe upon the State’s ability

to discharge traditional State

governmental functions because

interstate commerce, which is the

subject of these regulations regarding

interstate operations, has traditionally

been governed by Federal laws.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number 20.217,

Motor Carrier Safety. The regulations

implementing Executive Order 12372

regarding intergovernmental

consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

The FHWA does not anticipate that

any rulemaking action implemented in

subsequent phases of this proceeding

would result in changes in the

collection of information requirements

that are currently approved. The FHWA

does not foresee the likelihood of

increased paperwork burdens because

what is being considered in this action

is an evaluative process to determine, in

part, how regulated motor carriers are

complying with existing regulations.

Should revisions to the safety

assessment and rating system be

proposed in this proceeding, however,

the agency will evaluate carefully the

information collection implications of

such revisions under the Paperwork

Reduction Act of 1995, 44 U.S.C. 3501–

3520.

National Environmental Policy Act

The agency will analyze any action

implemented in subsequent phases of

this proceeding for the purposes of the

National Environmental Policy Act of

1969 (42 U.S.C. 4321–4347) to

determine whether the action would

affect the quality of the environment.

Regulation Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document can be

used to cross reference this action with

the Unified Agenda.

List of Subjects in 49 CFR Part 385

Highway safety, Highways and roads,

Motor carriers, Motor vehicle safety, and

Safety fitness procedures.

Issued on: July 10, 1998.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 98–19294 Filed 7–17–98; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 395 and 396

[FHWA Docket No. FHWA–98–3414]

RIN 2125–AE35

Out-of-Service Criteria

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Advance notice of proposed

rulemaking (ANPRM); request for

comments.

SUMMARY: The FHWA seeks public

comment concerning use of the ‘‘North

American Uniform Out-of-Service

Criteria’’ (OOS Criteria). During

roadside inspections, Federal, State and

local safety inspectors use the OOS

Criteria as a guide in determining

whether to place commercial motor

vehicles (CMVs) or drivers of CMVs outof-service. The OOS Criteria is a list of

those violations which are so unsafe

that they must be corrected before

operations can resume. Correction of

other less severe violations can be

deferred to a more convenient time and

place. The FHWA is seeking public

comment on the future scope and effect

of the OOS Criteria, which are not part

of the Federal Motor Carrier Safety

Regulations (FMCSRs). The agency is

also seeking comment on the need to

formalize these guidelines.

DATES: Comments should be received on

or before September 18, 1998.

ADDRESSES: Signed, written comments

should refer to the docket number

appearing at the top of this document

and must be submitted to the Docket

Clerk, U.S. DOT Dockets, Room PL–401,

400 Seventh Street, SW., Washington,

DC 20590–0001. All comments received

will be available for examination at the

above address between 10 a.m. and 5

p.m., e.t., Monday through Friday,

except Federal holidays. Those desiring

notification of receipt of comments must

include a self-addressed, stamped

envelope or postcard.
38792 Federal Register / Vol. 63, No. 138 / Monday, July 20, 1998 / Proposed Rules

1See 49 CFR 395.13(a), and 396.9(c).

FOR FURTHER INFORMATION CONTACT: Mr.

Robert F. Schultz, Jr., Office of Motor

Carrier Research and Standards (HCS–

10), (202) 366–4009, or Mr. Charles

Medalen (HCC–20), Office of the Chief

Counsel, (202) 366–1354, Federal

Highway Administration, Department of

Transportation, 400 Seventh Street,

SW., Washington, DC 20590. Office

hours are from 7:45 a.m. to 4:15 p.m.,

e.t., Monday through Friday, except

Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users can access all

comments received by the U.S. DOT

Dockets, Room PL–401, by using the

universal resource locator (URL):http://

dms.dot.gov. It is available 24 hours

each day, 365 days each year. Please

follow the instructions online for more

information and help.

An electronic copy of this document

may be downloaded using a modem and

suitable communications software from

the Government Printing Office’s

Electronic Bulletin Board Service at

(202) 512–1661. Internet users may

reach the Federal Register’s home page

at: http://www.nara.gov/fedreg and the

Government Printing Office’s database

at: http://www.access.gpo.gov/suldocs.

What is the ‘‘North American Uniform

Out-of-Service Criteria’’?

The OOS Criteria is a reference guide

developed and maintained by the

Commercial Vehicle Safety Alliance

(CVSA) to assist enforcement personnel

in deciding whether to allow a CMV or

driver, found in violation of law, to

continue in commerce. The CVSA is an

association of State, local, provincial

and Federal officials responsible for the

administration and enforcement of

motor carrier safety laws and

regulations in the United States,

Canada, and Mexico. The CVSA

provides a mechanism for the

development of consensus upon issues

of common concern. The OOS Criteria

is a detailed list of conditions which the

CVSA membership has agreed are

sufficiently hazardous to justify

restricting further operation by a driver

or a CMV. Each year the CVSA reviews

the OOS Criteria, and makes necessary

changes.

How are the OOS Criteria Used?

The majority of the safety violations

found during inspections at the roadside

relate to the condition of the CMV.

Some of these violations can be

corrected at the roadside; for example,

a driver can repair a turn signal which

is not functioning. Others must be

corrected at a repair facility. If a

particular safety violation presents no

immediate or undue threat to public

safety, it would be an unnecessary

interruption in the flow of commerce

and perhaps even cause a traffic safety

problem to require the motor carrier to

undertake corrective action on site. In

such cases, the assessment of a warning,

fine, or other penalty is sufficient; the

repairs necessary to prevent further

deterioration or ultimately correct the

condition may safely be deferred to

another time and place.

In this sense, the OOS Criteria are

usually less stringent than the FMCSRs.

For example, a CMV with a single

headlamp incapable of producing a low

beam during night-time driving does not

comply with the FMCSRs (49 CFR

393.9). The OOS Criteria, however, are

not operable until both headlamps are

incapable of producing a low beam. In

this example, the inspector would cite

the motor carrier for the violation of the

FMCSRs, but permit the CMV to

proceed so that repairs to the headlamp

can be made at a more convenient time

and place. In cases such as this, the

OOS Criteria serve as enforcement

tolerances because the violation of the

FMCSRs is allowed to continue. In other

instances, provisions of the OOS

Criteria correspond precisely with the

FMCSRs. For example, a CMV with only

one rear turn signal working properly

does not comply with the FMCSRs (49

CFR 393.11). The OOS Criteria also

provides that the CMV should not be

moved until both signals are in working

order.

State inspectors with general police

powers have authority under State law

to stop and seize summarily. All States

participating in the Motor Carrier Safety

Assistance Program (MCSAP) have

agreed that their inspectors will use the

OOS Criteria when exercising this

power. If an inspector, during an

inspection activity, observes inherently

dangerous conditions which are

identified in the OOS Criteria, the

inspector may issue an out-of-service

order. Motor carriers and their drivers

are able to anticipate reasonably

uniform treatment of violations in all

jurisdictions throughout this country

because of the general acceptance of the

OOS Criteria.

The majority of drivers who are

placed out-of-service are so treated

because they are driving in violation of

the maximum hours-of-service rules

under 49 CFR part 395. Such violations

are usually corrected by the driver being

off-duty at least eight consecutive hours.

An FHWA inspector at roadside may

order a motor carrier’s driver or CMV to

cease operation.1 When conducting

roadside vehicle and driver inspections,

the FHWA uses the OOS Criteria in

deciding whether to allow particular

motor carriers, CMVs, or drivers to

proceed in violation of the FMCSRs.

How has the OOS Criteria Evolved?

Out-of-service criteria for drivers and

CMVs have been in existence over forty

years. Prior to its absorption into the

United States Department of

Transportation in 1967, the Bureau of

Motor Carrier Safety (BMCS), a part of

the former Interstate Commerce

Commission, developed the first out-ofservice criteria in carrying out its

inspection function. Those criteria

continued in use by the FHWA safety

investigators thereafter.

In 1980, the FHWA conducted a pilot

program to assess the potential of States

to enforce CMV safety rules at the same

time they enforce the restrictions on the

size and weight of CMVs. Four States

participated and generated results

which were a factor in the enactment of

legislation in 1982 authorizing the

Motor Carrier Safety Assistance

Program. That program, which provides

funding to the States in their efforts to

enforce motor carrier safety regulations,

has been quite successful.

The States were brought together on

another front by their search for a

solution to the problems created by the

patchwork of diverse State laws and

regulations governing motor carrier

safety. The States came to realize that a

larger number of motor carriers could

comply with safety laws and regulations

if greater uniformity in enforcement

were achieved. Several western States

and Canadian Provinces formed the

CVSA to reach agreement on issues such

as inspections and out-of-service

criteria. With the subsequent

encouragement and support of the

FHWA through the MCSAP, the CVSA

expanded dramatically. Soon all 50

States and the District of Columbia

became partners with the FHWA by

adopting and enforcing, with minor

variances, the FMCSRs and the

Hazardous Materials Regulations

(HMRs) of the Research and Special

Programs Administration, and by using

uniform inspection criteria.

In 1988, the FHWA published a

comparison of the OOS Criteria and the

FHWA’s inspection criteria in 49 CFR

Ch. III, subchapter B, appendix G. The

fact that this comparison is so outdated

and of little use today demonstrates one

of the issues discussed below in the

options for further regulatory action.
Federal Register / Vol. 63, No. 138 / Monday, July 20, 1998 / Proposed Rules 38793

2The out-of-service history is drawn from the

nearly 2 million vehicle inspections which are

performed each year by the States participating in

the MCSAP. If a motor carrier experiences a ratio

of out-of-service inspections to ‘‘clean’’ inspections

of 34 percent or greater (minimum of 3 inspections),

the initial rating for the Vehicle Factor is

Conditional. The FHWA believes setting the ratio,

commonly called the ‘‘out-of-service rate,’’ at 34

percent is appropriate because the national average

is 33 percent.

For a more detailed explanation of the Safety

Fitness Rating Methodology, please consult FHWA

Docket No. 94–22; FHWA–97–2252 (59 FR 47203),

and see two notices: (1) Notice of Proposed

Rulemaking, Safety Fitness Procedures; Safety

Ratings, May 28, 1997 (62 FR 28826), and (2) Final

Rule, Safety Fitness Procedures, November 6, 1997

(62 FR 60035).

The Motor Carrier Act of 1991 (the

Act) prescribed certain penalties for

motor carriers or drivers found to have

violated out-of-service orders (49 U.S.C.

31310(g)(2)). The Act made the adoption

of such penalties by the States, and a

program of random reinspection of

vehicles placed out-of-service, a

condition for receipt of Federal safety

funding under the MCSAP. The

Congress also made a State’s adoption of

the penalties for violation of out-ofservice orders a condition of continued

receipt of the State’s full allocation of

highway construction funds (49 U.S.C.

31311). The FHWA published

implementing regulations on May 18,

1994 (59 FR 26022) (codified in part at

49 CFR 383.5 and 390.5, definitions of

‘‘out-of-service criteria’’).

What is the FHWA’s Role in the

Development of the OOS Criteria?

The FHWA is a non-voting member of

the CVSA, as are representatives of

numerous trade organizations, such as

the American Trucking Associations

(ATA), the National Private Truck

Council (NPTC), the Owner-Operator

Independent Drivers Association, Inc.

(OOIDA), and the National Tank Truck

Carriers, Inc. (NTTC). Committees of the

CVSA consider and recommend

modifications to the OOS Criteria,

which are then accepted or rejected by

a vote of CVSA member jurisdictions.

The revised OOS Criteria are then

submitted to the FHWA for its use.

The FHWA’s interest in the OOS

Criteria is three-fold. First, as part of the

MCSAP program, each State develops a

Commercial Vehicle Safety Plan (CVSP)

which the FHWA must approve before

authorizing funds. At the present time,

the CVSPs of all the States provide for

use of the OOS Criteria in conducting

driver, vehicle, and hazardous materials

inspections at the roadside.

Second, the FHWA’s own safety

investigators use the CVSA OOS criteria

in the limited number of roadside

inspections they perform each year. By

following the CVSA OOS criteria in

determining whether to place a driver or

vehicle out-of-service, the FHWA is

promoting consistency with these Statedeveloped criteria and further

uniformity in treatment of carriers

nationwide.

Third, the FHWA also uses the OOS

Criteria indirectly in determining the

safety fitness of motor carriers (49 CFR

385.5). The FHWA’s safety ratings for

motor carriers include three categories:

Satisfactory, Conditional, or

Unsatisfactory (49 CFR 385.7). The

ratings are based on a number of factors,

including compliance with the FMCSRs.

The FHWA has recently placed

greater emphasis on the safety

performance of motor carriers in the

rating process, and this action has led to

additional emphasis on the OOS

Criteria. The FHWA considers the

vehicle out-of-service experience of

motor carriers when calculating the

vehicle factor, one of the six

components of a motor carrier’s safety

rating. Rather than taking all roadside

violations into account, the FHWA

considers only out-of-service violations

on the presumption that, because they

are more serious, they are more likely to

reflect on the inspection, repair, and

maintenance programs of motor

carriers.2

Why is the FHWA Undertaking This

Action?

The agency believes that the OOS

Criteria serve as guides for enforcement

personnel in the exercise of discretion.

The inspector determines if there is a

violation of the underlying substantive

safety regulation, whether it be the

FMCSRs, a State law or regulation

compatible with the FMCSRs, or the

HMRs. When this determination has

been made, the inspector faces a second

question: may this particular driver or

vehicle resume operations immediately

in the face of this violation? The

inspector exercises his or her discretion

in answering this question. The OOS

Criteria serve as guidelines to help the

inspector determine whether the

condition that he or she is observing is

sufficiently hazardous to warrant

placing the driver or CMV out-ofservice, or conversely, whether the

condition is not serious enough to

prevent the driver and CMV from

proceeding in violation of the

regulation, deferring the repairs until a

more convenient time and location.

Thus, the OOS Criteria take on the

character of enforcement tolerances.

The FHWA is responding today,

however, to a growing perception

within the industry that the CVSA OOS

Criteria play a significant role in the

enforcement of the FMCSRs, and that

publication of the criteria as a part of

the FMCSRs is therefore warranted. The

FHWA believes that the time has come

for a full discussion of the OOS Criteria:

what are they; what is their purpose;

how are they used; who is responsible

for implementing them; and whether

they are regulatory or merely guides for

the use of necessary discretion in the

enforcement of motor carrier safety.

The FHWA is undertaking this action

because there has been criticism of the

manner in which the CVSA OOS

Criteria are currently utilized. On May

1, 1989, the Maine State Police

petitioned the FHWA to incorporate the

CVSA OOS Criteria by reference within

the FMCSRs. On October 29, 1993, the

CVSA, petitioned the FHWA to define

‘‘out-of-service criteria,’’ and

incorporate the CVSA OOS Criteria into

the FMCSRs by reference. On June 13,

1994, the OOIDA filed a motion with

the FHWA to stay the imposition of

certain final FHWA rules pertaining to

penalties for violation of out-of-service

orders, and cited in support of its

motion the failure of the FHWA to

formally incorporate these standards

within the FMCSRs (FHWA Docket No.

MC–92–13; FHWA–97–2279 at 59 FR

26022).

On April 20, 1995, the National Tank

Truck Carriers, Inc. petitioned the

FHWA to propose a rulemaking to

establish the OOS Criteria as an

appendix to the FMCSRs. On June 10,

1997, the FHWA granted the NTTC’s

petition, stating as part of the order

entered that the FHWA would ‘‘publish

a rulemaking to discuss the entire issue

and propose a resolution.’’ This ANPRM

initiates that rulemaking.

Public comment on the issues raised

in this ANPRM will assist the FHWA in

determining whether any further

regulatory action is required.

What Should be the Future Scope and

Effect of the OOS Criteria?

1. Maintain the current FHWA policy.

As stated above, the FHWA uses the

current CVSA OOS Criteria in several

ways. The FHWA has treated these

criteria as enforcement tolerances, as

guidelines for its own staff, and as

acceptable alternatives for States to use

in their State Enforcement Plans

adopted under the Motor Carrier Safety

Assistance Program. Although these

criteria are mentioned in the Federal

Motor Carrier Safety Regulations (see,

e.g., 49 CFR sections 383.5 and 390.5,

definitions of ‘‘out-of-service orders’’),

the criteria themselves have not been

adopted by the FHWA pursuant to

notice and comment rulemaking. As
38794 Federal Register / Vol. 63, No. 138 / Monday, July 20, 1998 / Proposed Rules

noted above, some industry

representatives believe that the FHWA’s

use of these criteria has evolved to the

point where adoption of the criteria

pursuant to notice and comment

rulemaking is warranted and desirable.

As part of this rulemaking, the FHWA

will consider the scope and effect of the

OOS criteria and the use to which the

FHWA puts these criteria. One possible

alternative is to limit the use of the

criteria in ways that do not require

adoption of the criteria as regulations.

Under its current policy, the FHWA

considers the OOS criteria to be a tool

to determine whether violations of the

FMCSRs (or compatible State safety

regulations) are so serious as to warrant

ordering a motor carrier to cease using

the driver or vehicle in question. The

criteria themselves do not establish

separate standards of conduct for

regulated entities, nor is it intended that

use of the criteria excuses other less

serious violations of applicable safety

regulations.

Accordingly, comment is requested

on the fundamental question of how the

FHWA should use any OOS criteria.

Comment is also solicited on the

desirability of adopting the OOS criteria

after notice and opportunity for

comment, even if such opportunity for

further public participation is not

required.

2. Adoption of the OOS Criteria in the

FMCSRs.

Comment is requested on the

alternative of adopting the OOS criteria

as part of the Federal Motor Carrier

Safety Regulations, either because of the

use to which the criteria is or should be

put or because of the desirability of the

opportunity for public participation

inherent in the process of adopting

these criteria as Federal regulations. If

the FHWA should adopt out-of-service

criteria by regulation, can the FHWA

avoid undermining the general principle

that compliance with all applicable

safety regulations is required? Should

the FHWA specifically require the use

of such federally adopted out-of-service

criteria by States as a condition of

MCSAP, or could the adopted criteria be

one of several acceptable sets of criteria

States could use? How would, or

should, adoption of such criteria limit

the discretion or Federal and State

safety investigators to address

discovered driver and vehicle safety

violations at the roadside? Should

investigators be limited to issuing outof-service orders only to cases that

expressly meet the adopted criteria?

Should investigators be required to

issue out-of-service orders in all cases

where the criteria are met? How much

discretion should investigators retain to

address safety hazards discovered at the

roadside that may not be precisely

covered in the adopted criteria?

3. How should out-of-service criteria

be adopted?

In addition to the basic question of

whether the FHWA should adopt these

criteria as regulations, the FHWA is

requesting comment on the most

desirable way to accomplish any such

adoption. As explained above, the

existing criteria are developed by the

CVSA. Section 12 of Pub. L. 104–113

(see 5 U.S.C. 272 note) directs agencies

to use technical standards that are

developed or adopted by voluntary

consensus standards bodies. The FHWA

appreciates the work done by the CVSA

in maintaining the current criteria, and

recognizes the value of that effort. The

FHWA is also mindful of the role of the

States in the MCSAP program and the

desirability of using State-developed

criteria or standards in the MCSAP

program whenever possible. Therefore,

the FHWA is seeking specific comment

on how the FHWA should adopt any

out-of-service criteria. Should the

FHWA, for example, consider adopting

the CVSA criteria and incorporating

them in the FMCSRs, either as an

appendix to the FMCSRs or by seeking

approval from the Director of the Office

of the Federal Register to incorporate by

reference the CVSA criteria into the

FMCSRs? Should the FHWA set forth

the text of any criteria adopted in the

body of its safety regulations? What

implications, if any, would there be for

continued State development of out-ofservice criteria if the FHWA adopts

separate criteria or incorporates existing

criteria? How can the FHWA best

address the federalism implications of

adopting out-of-service criteria that may

be used by the States which have

concurrent motor carrier safety

jurisdiction? How can national

uniformity be promoted, and how can

maximum State and industry

acceptance of the criteria be gained, by

any proposed alternative adoption

method?

Request for Comments

A copy of the CVSA OOS criteria has

been placed in the docket and may be

accessed and viewed electronically

following the instructions provided at

the beginning of the Supplementary

Information section of this ANPRM.

Copies of the OOS Criteria may also be

obtained at offices of the Federal

Highway Administration’s Office of

Motor Carriers located in each State.

The telephone numbers of the State

offices may be obtained by telephoning

1–800–832–5660.

The FHWA invites public comment

on the OOS Criteria: What are they?

Who should be responsible for

implementing them? How should they

be used? Are they appropriate for

regulatory treatment, or should they

remain as guides to the enforcement of

motor carrier safety by participating

jurisdictions? What should the scope

and effect of the OOS Criteria be?

Should they be referred to in the

FMCSRs? If so, in what manner? Should

they continue to be used in safety

fitness determinations? The FHWA

welcomes the presentation of

alternatives to the approaches outlined

in this document. The FHWA is not,

however, seeking comment on the

substance of the OOS Criteria at this

time.

Rulemaking Analyses and Notices

All comments received before the

close of business on the comment

closing date indicated above will be

considered and will be available for

examination in the docket room at the

above address. Comments received after

the comment closing date will be filed

in the docket and will be considered to

the extent practicable. In addition to late

comments, the FHWA will also

continue to file in the docket relevant

information that becomes available after

the comment closing date, and

interested persons should continue to

examine the docket for new material.

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this

action is not significant within the

meaning of Executive Order 12866 or

significant within the meaning of

Department of Transportation regulatory

policies and procedures. Due to the

preliminary nature of this document

and lack of necessary information on

costs, the FHWA is unable to evaluate

the economic impact of the potential

regulatory changes being considered in

this rulemaking. Based on the

information received in response to this

notice, the FHWA intends to carefully

consider the costs and benefits

associated with various alternative

requirements. Comments, information,

and data are solicited on the economic

impact of any potential change.

Regulatory Flexibility Act

Due to the preliminary nature of this

document and lack of necessary

information on costs, the FHWA is

unable to evaluate the effects of the

potential regulatory changes on small

entities. Based on the information

received in response to this notice, the
Federal Register / Vol. 63, No. 138 / Monday, July 20, 1998 / Proposed Rules 38795

FHWA intends, in compliance with the

Regulatory Flexibility Act (5 U.S.C.

601–612), to carefully consider the

economic impact of these potential

changes on small entities. The FHWA

solicits comments, information and data

on these impacts.

Unfunded Mandates Reform Act

The FHWA will analyze any proposed

rule to determine whether it would

result in the expenditure by State, local,

and tribal governments, in the aggregate,

or by the private sector, of $100 million

or more in any one year, as required by

the Unfunded Mandates Reform Act of

1995 (2 U.S.C. 1532).

Executive Order 12612 (Federalism

Assessment)

This action has been analyzed using

the principles and criteria contained in

Executive Order 12612. Because of the

preliminary nature of this document, it

is not possible to determine whether

this proposal will have sufficient

federalism implications to warrant the

preparation of a federalism assessment.

The FHWA is presenting this

rulemaking as an opportunity to air

complex issues.

These issues appear to have

federalism implications. For example,

adoption by the FHWA of the OOS

Criteria as part of the FMCSRs would

have an effect on States and

municipalities. By making the OOS

Criteria a part of the FMCSRs, the

FHWA would be exercising control over

those criteria. The CVSA might

experience a diminished role in the

development of policy standards for the

exercise of enforcement discretion. Its

member States might likewise

experience a reduced role in their

relationships with the Federal

government. Incorporation by reference

within the FMCSRs might have less of

a federalism impact. The FHWA would

have to conduct a rulemaking whenever

the CVSA developed revisions of the

OOS Criteria. But, because the language

of the OOS Criteria would be more

directly under the control of the CVSA,

the federalism impact would be less

than in the first approach. Maintaining

the current policy would appear to have

minimal federalism impact. The StateFederal partnership which has been

operative in this area would presumably

continue, and the CVSA and its member

States would continue to play a large

role in the maintenance of the OOS

Criteria.

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. Catalog of

Federal Domestic Assistance Program

Number 20.217, Motor Carrier Safety.

Paperwork Reduction Act

This action does not contain a

collection of information requirement

for purposes of the Paperwork

Reduction Act of 1995, 44 U.S.C. 3501–

3520.

National Environmental Policy Act

The agency has analyzed this action

for purposes of the National

Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.) and it has

determined that this action would not

have any effect on the quality of the

environment.

Regulation Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document can be

used to cross reference this action with

the Unified Agenda.

List of Subjects

49 CFR Part 395

Highway safety, Motor carriers,

Reporting and recordkeeping

requirements.

49 CFR Part 396

Highway safety, Motor carriers, Motor

vehicle safety, Reporting and

recordkeeping requirements.

Authority: 49 U.S.C. 31133, 31136, 31310,

and 31502; sec. 345, Pub.L. 104–59, 109 Stat.

568, 613; and 49 CFR 1.48.)

Issued on: July 10, 1998.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 98–19153 Filed 7–17–98; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

49 CFR Part 571

[Docket No. NHTSA–98–4071; Notice 1]

RIN 2127–AH25

Federal Motor Vehicle Safety

Standards; Occupant Crash Protection

AGENCY: National Highway Traffic

Safety Administration (NHTSA), DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: This notice proposes to

amend Federal Motor Vehicle Safety

Standard on occupant crash protection

to provide greater flexibility regarding

the location of the telltale for air bag onoff switches installed in new motor

vehicles. It would do so by eliminating

the requirement that the telltale be

located on the vehicle dashboard. No

change would be made to the separate

existing requirement that the telltale

must be clearly visible from all front

seat seating positions. This proposal

would also add a requirement that the

telltale be located within the vehicle’s

interior. The proposal is being issued, in

response to a petition for rulemaking, to

make the telltale requirements in the

standard consistent with those in the

agency’s regulation governing the

retrofitting of used vehicles with air bag

on-off switches.

DATES: Comments must be received by

September 3, 1998.

ADDRESSES: Comments should refer to

the docket and notice number of this

notice and be submitted to: Docket

Management, Room PL–401, 400

Seventh Street, SW, Washington, DC

20590 (Docket Room hours are 10:00

a.m.–5 p.m., Monday through Friday.)

FOR FURTHER INFORMATION CONTACT: For

non-legal issues: Mr. Clarke Harper,

Chief, Light Duty Vehicle Division,

NPS–11, National Highway Traffic

Safety Administration, 400 Seventh

Street, SW, Washington, DC 20590.

Telephone: (202) 366–2264. Fax: (202)

366–4329.

For legal issues: Ms. Rebecca

MacPherson, Office of Chief Counsel,

NCC–20, National Highway Traffic

Safety Administration, 400 Seventh

Street, SW, Washington, DC 20590.

Telephone: (202) 366–2992. Fax: (202)

366–3820.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Details of the Proposal

III. Proposed Effective Date

IV. Rulemaking Analyses and Notices

V. Submission of Comments

I. Background

This notice responds to a petition

from Volkswagen of America, Inc.

seeking to amend Federal Motor Vehicle

Safety Standard No. 208 (FMVSS No.

208) by eliminating the current

requirement that the telltale for air bag

on-off (cutoff) switches in new motor

vehicles be located on the vehicle

dashboard. Under the proposed change,

the telltale requirements for new

vehicles equipped with an on-off switch