Federal Register / Vol. 60, No. 76 / Thursday, April 20, 1995 / Rules and Regulations 19681

explanation provided in the remarks

section of the form. A new test shall

then be conducted, using an EBT for

both the screening and confirmation

tests.

(8) If the procedures of paragraph

(d)(3)–(d)(5) of this section are followed

successfully, but the device is not

activated, the STT shall discard the

device and swab and conduct a new

test, in the same manner as provided in

paragraph (d)(7) of this section. In this

case, the STT shall place the swab into

the employee’s mouth to collect saliva

for the new test.

(9) The STT shall read the result

displayed on the device two minutes

after inserting the swab into the device.

The STT shall show the device and its

reading to the employee and enter the

result on the form.

(10) Devices, swabs, gloves and other

materials used in saliva testing shall not

be reused, and shall be disposed of in

a sanitary manner following their use,

consistent with applicable

requirements.

(e) In the case of any screening test

performed under this section, the STT,

after determining the alcohol

concentration result, shall follow the

applicable provisions of § 40.63 (e)(1)–

(2), (f), (g), and (h). The STT shall also

enter, in the ‘‘Remarks’’ section of the

form, a notation that the screening test

was performed using a non-evidential

breath testing device or a saliva device,

as applicable. Following completion of

the screening test, the STT shall date the

form and sign the certification in Step

3 of the form.

§ 40.103 Refusals to test and uncompleted

tests.

(a) Refusal by an employee to

complete and sign the alcohol testing

form required by § 40.99 (Step 2), to

provide a breath or saliva sample, to

provide an adequate amount of breath,

or otherwise to cooperate in a way that

prevents the completion of the testing

process, shall be noted by the STT in

the remarks section of the form. This

constitutes a refusal to test. The testing

process shall be terminated and the STT

shall immediately notify the employer.

(b) If the screening test cannot be

completed, for reasons other than a

refusal by the employee, or if an event

occurs that would invalidate the test,

the STT shall, if practicable,

immediately begin a new screening test,

using a new testing form and, in the

case of a test using a saliva screening

device, a new device.

§ 40.105 Inability to provide an adequate

amount of breath or saliva.

(a) If an employee is unable to provide

sufficient breath to complete a test on a

non-evidential breath testing device, the

procedures of § 40.69 apply.

(b) If an employee is unable to

provide sufficient saliva to complete a

test on a saliva screening device (e.g.,

the employee does not provide

sufficient saliva to activate the device),

the STT, as provided in § 40.101 of this

Part, shall conduct a new test using a

new device. If the employee refuses to

complete the new test, the STT shall

terminate testing and immediately

inform the employer. This constitutes a

refusal to test.

(c) If the new test is completed, but

there is an insufficient amount of saliva

to activate the device, STT shall

immediately inform the employer,

which shall immediately cause an

alcohol test to be administered to the

employee using an EBT.

§ 40.107 Invalid tests.

An alcohol test using a non-evidential

screening device shall be invalid under

the following circumstances:

(a) With respect to a test conducted on

a saliva device—

(1) The result is read before two

minutes or after 15 minutes from the

time the swab is inserted into the

device;

(2) The device does not activate;

(3) The device is used for a test after

the expiration date printed on its

package; or

(4) The STT fails to note in the

remarks section of the form that the

screening test was conducted using a

saliva device;

(b) With respect to a test conducted

on any non-evidential alcohol testing

device, the STT has failed to note on the

remarks section of the form that the

employee has failed or refused to sign

the form following the recording on the

form of the test result.

§ 40.109 Availability and disclosure of

alcohol testing information about individual

employees.

The provisions of § 40.81 apply to

records of non-evidential alcohol

screening tests.

§ 40.111 Maintenance and disclosure of

records concerning non-evidential testing

devices and STTs.

Records concerning STTs and nonevidential testing devices shall be

maintained and disclosed following the

same requirements applicable to BATs

and EBTs under § 40.81 of this Part.

[FR Doc. 95–9552 Filed 4–19–95; 8:45 am]

BILLING CODE 4910–62–P

National Highway Traffic Safety

Administration

49 CFR Part 571

[Docket No. 94–104; Notice 2]

RIN 2127–AF45

Federal Motor Vehicle Safety

Standards; Lamps, Reflective Devices

and Associated Equipment

AGENCY: National Highway Traffic

Safety Administration (NHTSA), DOT.

ACTION: Final rule.

SUMMARY: This notice amends the

Federal motor vehicle safety standard

on lighting to allow the photometric

conformance of rear center

highmounted stop lamps to be

determined by a grouping of test points.

This action is consistent with the

agency’s requirements for other lamps

and will lessen the testing burden for

manufacturers.

DATES: The effective date of the final

rule is May 22, 1995.

FOR FURTHER INFORMATION CONTACT:

Richard Van Iderstine, Office of

Rulemaking, NHTSA (202–366–5280).

SUPPLEMENTARY INFORMATION: Dennis

Moore of Livermore, California,

petitioned for rulemaking to amend

Standard No. 108 to allow ‘‘a ‘Zonal’

approach * * * for Compliance

Photometric Testing of 3rd Brake Lights

which has already been adopted for Tail

Lights, Regular Brake Lights and Turn

Signals.’’ Under S5.1.1.6 of Standard

No. 108, taillamps and parking lamps

need not meet the minimum

photometric values specified for each of

the test points of the relevant SAE

Standards incorporated by reference,

provided that the sum of the minimum

candlepower measured at the test points

is not less than that specified for each

group listed in Figure 1c. In addition,

the more recent SAE Standards for stop

lamps and turn signal lamps that have

been incorporated into Standard No.

108 no longer specify values for

individual test points (though including

them as photometric design guidelines).

Instead, they specify required values for

‘‘zones’’ only.

In contrast, the applicable

photometric values for center

highmounted stop lamps (CHMSLs) are

those of Figure 10 of Standard No. 108

and are for individual test points. Moore

viewed this as an anomaly. He believes

that laboratory test results vary so

greatly that CHMSLs must be

overdesigned to ensure compliance at

each test point. As a result, they draw

more power and have a shorter life

expectancy. He argued that because
19682 Federal Register / Vol. 60, No. 76 / Thursday, April 20, 1995 / Rules and Regulations

CHMSL bulbs burn out faster ‘‘and are

generally located in an area that is

inconvenient’’, they are not replaced.

NHTSA granted Mr. Moore’s petition

and published a notice of proposed

rulemaking on November 25, 1994 (59

FR 60596). The notice proposed a

revised Figure 10 which would establish

zonal photometrics that are the sums of

the minimum current photometric test

point values. Comments on the proposal

were submitted by Truck-Lite, Stanley

Electric Co. Ltd., Ford Motor Co.,

General Motors, Chrysler Corporation,

Mercedes-Benz of North America,

Volkswagen of America, and American

Automobile Manufacturers Association.

Comments were received after the due

date from Koito Mfg., Transportation

Safety Equipment Institute (TSEI), and

Advocates for Highway and Auto Safety

(Advocates).

All commenters except Advocates

supported the proposal, many noting

that it was reasonable and consistent

with the needs for motor vehicle safety.

They concurred with NHTSA’s

conclusion that the change would

reduce design and testing burdens.

Truck-Lite and TSEI recommended

that NHTSA also reference SAE J1957

JUN93, a standard specifically written

for CHMSLs required by Standard No.

108. In its opinion, the only major

difference is that the SAE specifies a

maximum intensity of 130 cd while

Standard No. 108 allows 160 cd. The

lower maximum is that established by

Canada. An amendment would permit

homologation with the requirements of

that country.

NHTSA has decided not to adopt

J1957 as the referenced standard on

CHMSLs. An amendment is not

necessary to permit a lamp to be

designed and sold in both the Canadian

and U.S. markets. This is, in fact, being

done, according to Truck-Lite, simply

by designing to the lower maximum

level of 130 cd. SAE J1957 does not

address light truck CHMSLs, which are

required by NHTSA. Finally, much of

the sections on ‘‘Installation

Requirements’’ and ‘‘Guidelines’’ differ

from the requirements of Standard No.

108 and, in some instances, are likely to

increase the burden upon vehicle

manufacturers. These manufacturers

have not been given notice and an

opportunity to comment upon a

possible adoption of SAE J1957. If a

manufacturer wishes to submit a formal

petition for rulemaking to substitute

SAE J1957, NHTSA will consider the

matter further.

Advocates argued that NHTSA should

not make the proposed change because

the agency had not verified that zonal

compliance rather than test point

compliance would not derogate from

safety. Relying on the petitioner’s claim

that CHMSL’s are overdesigned,

Advocates believes that the production

performance level establish the safety

norm which CHMSLs should meet.

The Federal motor vehicle safety

standards set minimum performance

levels requisite for safety. Lamp

manufacturers generally design

somewhat above the minimum

photometric levels to ensure that all

production units comply, rather than

designing at the minimum where the

vagaries of production could result in

some production lamps being below the

minimum. It may be this design

philosophy to which the petitioner

refers. But production lamps

manifesting a design above the

minimum is true for other lamps as

well, including those for which zonal

compliance is already permitted. The

agency has concluded that Advocates’

point is not well made.

Effective Date

The effective date of the final rule is

May 22, 1995. Since the final rule is, in

essence, permissive and relaxes a

regulatory burden, it is hereby found for

good cause shown that an effective date

for the amendment to Standard No. 108

that is earlier than 180 days after its

issuance is in the public interest.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT

Regulatory Policies and Procedures

This action has not been reviewed

under Executive Order 12866. It has

been determined that the rulemaking

action is not significant under

Department of Transportation regulatory

policies and procedures. The purpose of

the rulemaking action is to simplify

compliance with Standard No. 108.

Since the rule does not have any

significant cost or other impacts,

preparation of a full regulatory

evaluation is not warranted.

Regulatory Flexibility Act

The agency has also considered the

impacts of this rulemaking action in

relation to the Regulatory Flexibility

Act. I certify that this rulemaking action

will not have a significant economic

impact upon a substantial number of

small entities. Accordingly, no

regulatory flexibility analysis has been

prepared. Manufacturers of motor

vehicles and stop lamps, those affected

by the rulemaking action, are generally

not small businesses within the

meaning of the Regulatory Flexibility

Act. Further, small organizations and

governmental jurisdictions will not be

significantly affected because the price

of new vehicles and stop lamps will not

be affected.

National Environmental Policy Act

NHTSA has analyzed this rulemaking

action for the purposes of the National

Environmental Policy Act. It is not

anticipated that the final rule will have

a significant effect upon the

environment. The design and

composition of center highmounted

stoplamps will not change from those

presently in production.

Executive Order 12612 (Federalism)

This rulemaking action has also been

analyzed in accordance with the

principles and criteria contained in

Executive Order 12612, and NHTSA has

determined that this rulemaking action

does not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment.

Civil Justice

The final rule will not have any

retroactive effect. Under 49 U.S.C.

30103, whenever a Federal motor

vehicle safety standard is in effect, a

state may not adopt or maintain a safety

standard applicable to the same aspect

of performance which is not identical to

the Federal standard. Section 30163 sets

forth a procedure for judicial review of

final rules establishing, amending or

revoking Federal motor vehicle safety

standards. That section does not require

submission of a petition for

reconsideration or other administrative

proceedings before parties may file suit

in court.

List of Subjects in 49 CFR Part 571

Imports, Motor vehicle safety, Motor

vehicles.

In consideration of the foregoing, 49

CFR Part 571 is amended as follows:

PART 571—FEDERAL MOTOR

VEHICLE SAFETY STANDARDS

1. The authority citation for Part 571

continues to read as follows:

Authority: 49 U.S.C. 30111, 30115, 30162;

delegation of authority at 49 CFR 1.50.

2. Section 571.108 is amended by

revising Figure 10 as follows:

§ 571.108 Motor Vehicle Safety Standard

No. 108 Lamps, Reflective Devices, and

Associated Equipment.
Federal Register / Vol. 60, No. 76 / Thursday, April 20, 1995 / Rules and Regulations 19683

FIGURE 10.—PHOTOMETRIC REQUIREMENTS FOR CENTER HIGH-MOUNTED STOP LAMPS

Individual test points

Minimum

intensity

(candela)

Zones (test points within zones, see note 2)

Minimum

total for

zone

(canadela)

10U–10L ............................................. 8 Zone I (5U–V, H–5L, H–V, H–5R, 5D–V) ....................................................... 125

–V ....................................................... 16

–10R ................................................... 8

5U–10L ............................................... 16 Zone II (5U–5R, 5U–10R, H–10R, 5D–10R, 5D–5R) .................................... 98

–5L ..................................................... 25

–V ....................................................... 25

–5R ..................................................... 25

–10R ................................................... 16

5D–10L ............................................... 16 Zone III (5U–5L, 5U–10L, H–10L, 5D–10L, 5D–5L) ...................................... 98

–5L ..................................................... 25

–V ....................................................... 25

–5R ..................................................... 25

–10R ................................................... 16

H–10L ................................................. 16 Zone IV (10U–10L, 10U–V, 10U–10R) ........................................................... 32

–5L ..................................................... 25

–V ....................................................... 25

–5R ..................................................... 25

–10R ................................................... 16

See Note 1 ......................................... 1 160

Note 1: The listed maximum shall not occur over any area larger than that generated by a 1⁄4 degree radius within an solid cone angle within

the rectangle bounded by test points 10U–10L, 10U–10R, 5D–10L, and 5D–10R.

Note 2: The measured values at each test point shall not be less than 60% of the value listed.

1 Maximum intensity (Candela).

Issued on: April 14, 1995.

Ricardo Martinez,

Administrator.

[FR Doc. 95–9839 Filed 4–19–95; 8:45 am]

BILLING CODE 4910–59–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 646

[Docket No. 950203035–5091–02; I.D.

120594C]

RIN 0648–AH44

Snapper-Grouper Fishery Off the

Southern Atlantic States; Hogfish,

Cubera Snapper, Gray Triggerfish

Regulatory Amendment

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: In accordance with the

framework procedure for adjusting

management measures of the Fishery

Management Plan for the SnapperGrouper Fishery of the South Atlantic

Region (FMP), NMFS establishes a daily

recreational bag limit of five hogfish per

person; limits the harvest and

possession of cubera snapper measuring

30 inches (76.2 cm) in total length, or

larger, to 2 per day; and establishes a

minimum size limit for gray triggerfish

of 12 inches (30.5 cm), total length.

These measures apply only in the

exclusive economic zone (EEZ) off the

Atlantic coast of Florida. The intended

effects of this rule are to rebuild the

snapper-grouper resources and enhance

enforcement.

EFFECTIVE DATE: May 22, 1995.

FOR FURTHER INFORMATION CONTACT:

Peter J. Eldridge, 813–570–5305.

SUPPLEMENTARY INFORMATION: Snappergrouper species in the Atlantic Ocean

off the southern Atlantic states are

managed under the FMP. The FMP was

prepared by the South Atlantic Fishery

Management Council (Council) and is

implemented through regulations at 50

CFR part 646 under the authority of the

Magnuson Fishery Conservation and

Management Act.

In accordance with the framework

procedure of the FMP, the Council

recommended and NMFS published a

proposed rule to change the

management measures applicable to

certain snapper-grouper species in the

EEZ off the Atlantic coast of Florida (60

FR 8620, February 15, 1995). That

proposed rule specified the

recommended changes and described

the need and rationale for the

recommended changes. Those

descriptions are not repeated here.

No comments were received on the

proposed rule. Accordingly, the

proposed rule is adopted as final with

one change. As a technical change, the

title ‘‘Secretary’’ is revised to read

‘‘Assistant Administrator’’ where it

appears in the snapper-grouper

regulations. ‘‘Secretary’’ and ‘‘Assistant

Administrator’’ are defined at 50 CFR

620.2 to mean ‘‘the Secretary of

Commerce, or a designee’’ and ‘‘the

Assistant Administrator for Fisheries,

NOAA, or a designee,’’ respectively.

This change more clearly specifies the

responsible official.

Classification

This final rule has been determined to

be not significant for purposes of E.O.

12866.

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration when

this rule was proposed that it would not

have a significant economic impact on

a substantial number of small entities.

The reasons were summarized in the

preamble to the proposed rule (60 FR

8620, February 15, 1995). As a result, a

regulatory flexibility analysis was not

prepared.

List of Subjects in 50 CFR Part 646

Fisheries, Fishing, Reporting and

recordkeeping requirements.

Dated: April 13, 1995.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 646 is amended

as follows: