        NATIONAL TRANSPORTATION SAFETY BOARD
        49 CFR Parts 821 and 826
        Rules of Practice in Air Safety Proceedings and Implementing the Equal Access to Justice Act of 1980

          AGENCY:
          National Transportation Safety Board (NTSB or Board).

          ACTION:
          Advance notice of proposed rulemaking (ANPRM).

          SUMMARY:
          The NTSB seeks comments from the public regarding amendments to its regulations which set forth rules of procedure for the NTSB's review of certificate actions taken by the Federal Aviation Administration (FAA), and those which set forth rules of procedure concerning applications for fees and expenses under the Equal Access to Justice Act (EAJA). The NTSB is undertaking a review in an effort to respond to parties' suggestions for changing the rules, in order to update rules that may be outdated, in the interest of modernizing the rules to accommodate prospective electronic filing and document availability in case dockets.

          DATES:
          Send your comments on or before February 22, 2011.

          ADDRESSES:
          You may send comments using any of the following methods:
          • Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically.
          • Mail: Send comments to NTSB Office of General Counsel, 490 L'Enfant Plaza East, SW., Washington, DC 20594-2000.
          • Facsimile: Fax comments to 202-314-6090.
          • Hand Delivery: Bring comments to 490 L'Enfant Plaza East, SW., 6th Floor, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

          For more information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

            Privacy: We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information provided.

          FOR FURTHER INFORMATION CONTACT:
          Gary Halbert, General Counsel, (202) 314-6080.

        SUPPLEMENTARY INFORMATION:

        Comments Invited
        The NTSB invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to any economic, environmental, energy, or federalism impacts that may result in amending part 821 or part 826. The most helpful comments would reference a specific section, explain the reason for any recommended change, and include supporting data or rationale. To ensure the docket does not contain duplicative comments, please send only one copy of written comments, or, if you are filing comments electronically, please submit your comments only once.
        We will file in the docket all comments we receive, as well as a report summarizing any substantive public contact with NTSB personnel concerning this proposed rulemaking. Before amending part 821 or part 826, we will consider all comments we receive on or before the closing date for comments. As described below, we are particularly interested in reviewing comments pertaining to: The standard for the NTSB's review of the FAA's “emergency” determinations; discovery and exchange of documents in air safety proceedings; suggestions concerning electronic filing of documents in such cases; and updates to the procedural rules governing EAJA claims.
        Part 821: Rules of Practice in Air Safety Proceedings
        Emergency Review Process: Regulatory History
        The FAA is authorized, under 49 U.S.C. 44709(e)(2), to issue orders amending, modifying, suspending, or revoking certificates issued on an “emergency” basis. In non-emergency cases, the certificate holder may continue to exercise the privileges of the certificate(s) affected by such an order while an appeal of the order is pending with the NTSB. Emergency orders are issued by the FAA where it finds that the interests of safety require that the order be effective immediately, and, in those cases, certificate privileges may not be exercised during the pendency of the appeal. Section 716 of the Aviation Investment and Reform Act for the 21st Century (hereinafter, “the Act”) amended 49 U.S.C. 44709 by granting the NTSB authority to review such emergency determinations. Public Law 106-181, section 716 (2000) (codified at 49 U.S.C. 44709(e)(3)).
        On July 11, 2000, in order to implement that provision, the NTSB published an Interim Rule with a request for comments. 65 FR 42637. This Interim Rule amended 49 CFR part 821 by providing the NTSB's administrative law judges with the authority to issue orders affirming or denying the FAA's determination that an emergency exists under 49 U.S.C. 44709(e).
        The NTSB received a number of comments in response to the Interim Rule, which it considered when drafting the Final Rule. Those comments were primarily directed at the following subjects: The standard of review of emergency determinations; the burden of proof and the evidence to be reviewed; and an intermediate appeal process to the full Board. In addition, a suggestion was made to allow electronic filings in such proceedings. On April 29, 2003, the NTSB published the Final Rule, which included one major change from the Interim Rule: It altered the standard of review for emergency determinations.
        A. Standard of Review

        The standard of review of emergency determinations in the Interim Rule directed NTSB law judges to decide whether the Administrator abused his or her discretion in finding that an emergency existed under the facts alleged in the Administrator's order, which the NTSB assumed to be true for the limited purpose of reviewing the emergency determination. The NTSB incorporated the abuse of discretion standard for review set forth in the Interim Rule from Nevada Airlines v. Bond, 622 F.2d 1017 (9th Cir. 1980). Subsequent to Nevada Airlines, the Ninth Circuit, in Tur v. FAA, 4 F.3d 766, 768 (1993), reaffirmed the “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law” standard it articulated in Nevada Airlines. That standard was also applied in Ickes v. FAA, 299 F.3d 260 (3rd Cir. 2002) (citing Blackman v. Busey, 938 F.2d 659, 663 (6th Cir. 1991) and Nevada Airlines, and stating, “our standard of review when assessing an FAA response to a perceived emergency is appropriately deferential: we ask only whether the finding of an emergency `was a clear error of judgment lacking any rational basis in fact.' ”). See also Armstrong v. FAA, 515 F.3d 1294 (D.C. Cir. 2008) (implying, in dicta, that the appropriate standard for review of emergency determinations is an “arbitrary and capricious” standard).

        After issuing the Interim Rule, the NTSB received two comments asserting that the abuse of discretion standard is not appropriate for the NTSB to apply to its reviews of emergency determinations. Both commenters stated that the abuse of discretion standard used in Nevada Airlines was a standard for judicial review and was not suitable for administrative review by the NTSB.

        However, based on the comments, the standard of review provided for in the Final Rule at section 821.54(e) provides: “Within 5 days after the Board's receipt of [a petition for review of the FAA's emergency determination], the * * * law judge * * * shall dispose of the petition by written order, and, in so doing, shall consider whether, based on the acts and omissions alleged in the Administrator's order, and assuming the truth of such factual allegations, the Administrator's emergency determination was appropriate under the circumstances, in that it supports a finding that aviation safety would likely be compromised by a stay of the effectiveness of the order during the pendency of the respondent's appeal.”
        The NTSB adopted a standard that requires a law judge to ascertain whether the Administrator's emergency determination was appropriate under the circumstances, given the potential threat to aviation safety, rather than merely deciding whether the Administrator's emergency determination was rationally supportable under an abuse of discretion standard. Thus, the standard adopted in the Final Rule represented a substantive departure from the more stringent standard that had been generally accepted by the courts.
        B. Burden of Proof and Evidence
        Related to the standard of review in emergency determination cases, some commenters objected to the provision in the Interim Rule that reviews of emergency determinations be undertaken under the assumption that facts alleged by the Administrator are true. That assumption remained unchanged in the Final Rule. Note: Section 821.54(e) does not explicitly state that the allegations of the FAA's complaint are “deemed true,” but instead uses the word “assum[ed].” The NTSB modeled this language after subsection (b) of the Board's Stale Complaint Rule, codified at 49 CFR 821.33. The NTSB concluded that the right to challenge an emergency determination should not be an opportunity to contest the factual allegations underlying the certificate action. The Board believed its rules already provided an opportunity for contesting those factual allegations in emergency cases via an expedited review process, which must be completed within 60 days, and the NTSB determined that it would be impractical to accomplish that expedited review process within the preliminary 5-day emergency determination review process.
        The NTSB also received several comments concerning the review of evidence during the emergency determination review phase; most commenters asserted that certificate holders need more evidence from the FAA in order to contest the determination that an emergency exists. After carefully considering the comments concerning the presentation of evidence during the emergency review determination phase, the NTSB included the following provision in section 821.54(d) of its Final Rule: “No hearing shall be held on a petition for review of an emergency determination. However, the law judge may, on his or her own initiative, and strictly in keeping with the prohibition on ex parte communications * * * solicit from the parties additional information to supplement that previously provided by the parties.”
        C. Appeals Process
        Several commenters were also concerned with the Interim Rule's provision, in section 821.54(f), that the law judge's determination concerning an emergency review petition would be considered final. The commenters provided various suggestions for an appeal process, in which a certificate holder could appeal the law judge's determination that an emergency exists to the Board. In the Final Rule, the NTSB decided not to institute such an intermediate appellate procedure for review of the law judges' decisions in reviewing emergency determinations. The NTSB determined that it was not necessary and would prove infeasible given the 5-day statutory period in which the Board must act on a petition. In order to address concerns of inconsistency and lack of precedent, the NTSB provided in the Final Rule that it would, in those cases that are appealed to the Board for a decision on the merits of an emergency or other immediately effective order of the Administrator, state the Board's concurrence or disagreement with the law judge's ruling on a petition challenging the emergency determination whenever it would be beneficial to address the issues raised, and that such views of the Board would serve as binding precedent in future cases.
        D. Electronic Filings
        Finally, one commenter suggested that the NTSB consider permitting electronic filing in emergency proceedings. The NTSB declined to adopt such a provision in the Final Rule.
        Request for Comments
        A. Standard for NTSB Review of FAA Emergency Determinations
        Recently, the NTSB has received requests from outside organizations to further alter the standard of review for emergency determinations. In particular, parties have asked the NTSB to consider removing the language of section 821.54(e) that provides that the law judge should assume that the acts and omissions alleged in the FAA's emergency order are true. Because of such interest, the NTSB specifically invites written comments concerning this issue along with support for the position.
        B. Discovery and Exchanges of Information by the Parties
        The NTSB has also received requests for amendments to its rules governing the discovery process and exchanges of information by the parties in air safety enforcement proceedings, and would like to invite written comments concerning discovery obligations in cases on appeal. For example, in the interest of ensuring that parties understand their discovery obligations, should the Rules of Practice require law judges routinely to issue prehearing orders? In addition, should the Rules impose any specific sanctions for a party's failure to provide information requested in discovery? The NTSB specifically invites comments on these issues along with the reasoning for any recommendation to make changes, as well as general concerns regarding pre-hearing exchanges of information by the parties.
        C. Electronic Filing of Documents

        The NTSB is committed to creating an electronic filing system for cases involving certificate actions at some point in the future. Currently, the NTSB is in the initial stages of exploring options for such a system. The NTSB is nevertheless interested in obtaining ideas and suggestions at this juncture from commenters. The NTSB notes that many certificate-holders proceed pro se (without representation by legal counsel), and encourages comments that suggest means by which parties acting pro se may avail themselves of the electronic filing process.
        Part 826: EAJA Procedural Rules
        Background Information

        The NTSB promulgated part 826 on October 1, 1981, in light of the need for procedural rules to govern cases arising out of the EAJA, codified at 5 U.S.C. 504. In the Final Rule that the NTSB published promulgating part 826 (published at 46 FR 48208 (Oct. 1, 1981)), the NTSB organized part 826 into three subparts: Subpart A contains general provisions, such as the purpose of part 826, which proceedings are covered and which applicants are eligible, and which fees and expenses are allowable, among other subjects; subpart B contains provisions concerning the required information that applicants must furnish the NTSB in order to receive an award; and subpart C sets forth the NTSB's procedures for considering EAJA applications. In 1989, the NTSB published a Final Rule amending the authority citation for part 826, and revising section 826.4, which addresses the eligibility of applicants (published at 54 FR 10332-01 (Mar. 13, 1989)). Specifically, the NTSB revised three subsections of section 826.4(b) to provide limitations on which applicants may be eligible for an award. The NTSB has not amended part 826 since the March 1989 Final Rule.
        Request for Comments
        Recently, the NTSB Office of General Counsel received an inquiry from an attorney who advised that section 826.40, which provides instructions for receiving payment of an award from the FAA, was outdated, in that it provides an incorrect address and contact information for the FAA office responsible for managing payments of awards under the EAJA. The NTSB seeks to ensure that its regulations are current, accurate, legally enforceable, and helpful to individuals to whom they apply. Therefore, the NTSB plans to update section 826.40, as well as any other sections within part 826 that may also be inaccurate.
        The NTSB invites written comments from any individuals interested in this rulemaking. As stated above, comments should specify the section needing amendment, and provide clear recommendations of the proposed changes along with supporting data and rationale.
        The NTSB reminds potential commenters that 5 U.S.C. 504 governs the applicability of the EAJA, and the NTSB will not attempt to expand this applicability in amending part 826. The NTSB also will observe and respect courts' interpretations of 5 U.S.C. 504, and, in general, will not adopt suggestions that are contrary to the Federal Courts of Appeals' interpretations.
        In general, the NTSB is receptive to considering suggestions concerning the promulgation of new sections regarding subjects not presently addressed in part 826. The NTSB does not intend to enact proposed provisions that it believes would not be helpful, would impose an undue burden on the FAA or the EAJA applicant, or would be contrary to any law, regulation, or executive order. The NTSB invites comments concerning proposed amendments to part 826 in light of these proclamations.
        Regulatory Notices
        1. Executive Order 12866 (Regulatory Planning and Review)
        This advance notice of proposed rulemaking is not a significant regulatory action under Executive Order 12866. Therefore, Executive Order 12866 does not require a Regulatory Assessment.
        2. Executive Order 13132 (Federalism)
        The NTSB has analyzed this ANPRM in accordance with the principles and criteria contained in Executive Order 13132. Any rulemaking proposal resulting from this notice would not propose any regulations that would: (1) Have a substantial direct effect on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; (2) impose substantial direct compliance costs on state and local governments; or (3) preempt state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
        3. Regulatory Flexibility Act
        The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires each agency to review its rulemaking to assess the potential impact on small entities, unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. The NTSB does not believe that any proposal resulting from this ANPRM will have a significant economic impact on a substantial number of small entities. However, the NTSB invites comments to facilitate any further analysis on this issue.

          Dated: December 15, 2010.
          Deborah A.P. Hersman,
          Chairman.

      [FR Doc. 2010-32056 Filed 12-21-10; 8:45 am]
      BILLING CODE 7533-01-P


        DEPARTMENT OF TRANSPORTATION
        Federal Motor Carrier Safety Administration
        49 CFR Parts 393 and 399
        [Docket No. FMCSA-2019-0211]
        RIN 2126-AC31
        Parts and Accessories Necessary for Safe Operation; Rear Impact Guards and Rear Impact Protection

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

          ACTION:
          Notice of proposed rulemaking.

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

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

          ADDRESSES:
          You may submit comments identified by Docket Number FMCSA-2019-0211 using any of the following methods:
          • Federal eRulemaking Portal: Go to https://www.regulations.gov/docket?D=FMCSA-2019-0211. Follow the online instructions for submitting comments.
          • Mail: Dockets Operations, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.
          • Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
          • Fax: (202) 493-2251.

          To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for instructions on submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          Mr. Luke Loy, Vehicle and Roadside Operations, Office of Carrier, Driver, and Vehicle Safety, MC-PSV, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, (202) 366-0676, luke.loy@dot.gov. If you have questions on viewing or submitting material to the docket, contact Dockets Operations, (202) 366-9826.

        SUPPLEMENTARY INFORMATION:
        I. Public Participation and Request for Comments
        A. Submitting Comments

        If you submit a comment, please include the docket number for this NPRM (FMCSA-2019-0211), indicate the specific section of this document to which comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
        To submit your comment online, go to https://www.regulations.gov/docket?D=FMCSA-2019-0211, click on the “Comment Now!” button, and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.
        If you submit your comments by mail or hand delivery, submit them in an unbound format, on paper no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.
        FMCSA will consider all comments and material received during the comment period and may make changes based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
        Confidential Business Information (CBI)
        CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to the interim rule contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to the interim rule, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be placed in the public docket of the interim rule. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, Office of Policy, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington DC 20590-0001. Any comments FMCSA receives not specifically designated as CBI will be placed in the public docket for this rulemaking.
        B. Viewing Comments and Documents

        Supporting documents and any comments we receive on this docket may be viewed at https://www.regulations.gov/docket?D=FMCSA-2019-0211. If you do not have access to the internet, you may view the docket online by visiting the Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
        C. Privacy Act

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

        D. Advance Notice of Proposed Rulemaking

        Under the Fixing America's Surface Transportation Act, Public Law 114-94 (FAST Act), FMCSA is required to publish an advance notice of proposed rulemaking (ANPRM) or conduct a negotiated rulemaking “if a proposed rule is likely to lead to the promulgation of a major rule.” 49 U.S.C. 31136(g)(1). As this proposed rule is not likely to lead to the promulgation of a major rule, the Agency is not required to issue an ANPRM or to proceed with a negotiated rulemaking.
        II. Executive Summary
        A. Purpose and Summary of Major Provisions
        Section 393.86 of the FMCSRs, “Rear impact guards and rear end protection,” requires rear impact guards to be installed on most CMVs to reduce the incidence of passenger compartment intrusion during underride crashes in which a passenger vehicle strikes the rear of the CMV. Regulations requiring rear impact guards have been in the FMCSRs since 1952. The FMCSRs require that all CMVs be systematically inspected, repaired, and maintained to ensure that all required parts and accessories—including rear impact guards—are in safe and proper operating condition at all times (section 396.3(a)(1)). Operation of a CMV with a missing or noncompliant rear impact guard would be a violation of the FMCSRs, precluding the issuance of a Commercial Vehicle Safety Alliance (CVSA) inspection decal if the vehicle were to be inspected.
        Among other things, the regulations require every CMV to be inspected at least once every 12 months. A motor carrier may not use a CMV unless each component identified in Appendix G of Subchapter B of Chapter III of title 49, Code of Federal Regulations, “Minimum Periodic Inspection Standards,” has passed the required annual inspection. While the FMCSRs have required rear impact guards for more than 65 years, they are not included on the list of components in Appendix G that must be inspected during the annual CMV inspection. This means that a vehicle can pass an annual inspection with a missing or damaged rear impact guard.
        In response to petitions from the CVSA and Jerry and Marianne Karth (“the Karths” 1
          ); a recommendation included in GAO Report GAO-19-264, “Truck Underride Guards: Improved Data Collection, Inspections, and Research Needed;” 2
           and Congressional correspondence,3
           this rulemaking proposes to amend the FMCSRs to include rear impact guards on the list of items that must be examined as part of the required annual inspection for each CMV.

            1 Copies of the petitions from CVSA and the Karths are available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets Operations.

            2 A copy of the GAO Report is available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets Operations.

            3 A copy of the letter is available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets Operations.

        In addition, NHTSA published two final rules on November 19, 2004, relating to rear impact guards. First, NHTSA amended the labeling requirement in FMVSS No. 223, “Rear impact guards,” to permit the rear impact guard certification label to be mounted on either the forward- or rearward-facing surface of the horizontal member of the guard, provided the label does not interfere with the retroreflective sheeting required by the FMVSS (69 FR 67660).4
           Prior to the amendment, the certification label was required to be mounted on the forward-facing surface of the horizontal member, 12 inches inboard of the right end of the guard. Second, NHTSA amended the applicability section of FMVSS No. 224, “Rear impact protection,” to exclude RCC horizontal discharge semitrailers from the requirements of the standard (69 FR 67663).5
           NHTSA concluded that installation of rear impact guards on RCC horizontal discharge trailers would interfere with the intended function of the trailers and was therefore impracticable due to the unique design and purpose of those vehicles. However, neither of NHTSA's November 2004 amendments to the FMVSS has been incorporated into the corresponding rear impact requirements in section 393.86 of the FMCSRs. FMCSA is proposing to amend the FMCSRs to adopt the changes above to maintain consistency with FMVSS Nos. 223 and 224.

            4 You may view the NHTSA rule online at https://www.federalregister.gov/documents/2004/11/19/04-25704/federal-motor-vehicle-safety-standards-rear-impact-guard-labels.

            5 You may view the NHTSA rule online at https://www.federalregister.gov/documents/2004/11/19/04-25703/federal-motor-vehicle-safety-standards-rear-impact-guards-final-rule.

        B. Costs and Benefits of Proposal
        The Agency does not expect this rulemaking to result in incremental costs or benefits. Although rear impact guards are not currently among the items that must be examined during annual inspections, 49 CFR 393.86 requires that certain CMVs operated in interstate commerce be equipped with the devices and that they remain installed and in safe and proper operating conditions at all times. Therefore, for the purposes of assessing the potential economic impact of this rulemaking on motor carriers, the Agency assumes compliance as part of the baseline established by the existing FMCSRs in section 393.86. Neither the labeling requirements that would result from this proposed rule nor the exclusion of RCC horizontal discharge semitrailers from these requirements would result in incremental costs or benefits.
        III. Legal Basis for the Rulemaking
        This rulemaking is based on the authority of the Motor Carrier Act of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 (1984 Act).
        The 1935 Act, as amended, provides that “[t]he Secretary of Transportation may prescribe requirements for—(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a private motor carrier, when needed to promote safety of operation” (49 U.S.C. 31502(b)).
        This NPRM would amend the FMCSRs to respond to petitions for rulemaking. The adoption and enforcement of such rules is specifically authorized by the 1935 Act. This proposed rulemaking rests squarely on that authority.
        The 1984 Act provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to “prescribe regulations on commercial motor vehicle safety.” The regulations shall prescribe minimum safety standards for CMVs. At a minimum, the regulations shall ensure that: (1) CMVs are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of CMVs do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of CMVs is adequate to enable them to operate vehicles safely; (4) the operation of CMVs does not have a deleterious effect on the physical condition of the operators; and (5) drivers are not coerced by motor carriers, shippers, receivers, or transportation intermediaries to operate a vehicle in violation of a regulation promulgated under 49 U.S.C. 31136 (which is the basis for much of the FMCSRs) or 49 U.S.C. chapters 51 or 313 (49 U.S.C. 31136(a)).

        This proposed rule concerns parts and accessories necessary for the safe operation of CMVs, and the inspection, repair, and maintenance of CMVs. It is based on section 31136(a)(1) because it deals with CMV maintenance of rear impact guards. The NPRM does not address the driver-centered requirements of sections 31136(a)(2)-(4). As the amendments proposed by this rule are primarily technical changes that clarify existing requirements and improve enforcement consistency, FMCSA believes there will be stakeholder support for this initiative and that coercion to violate the proposed amendments, which is already prohibited by section 31136(a)(5), will not be an issue.
        Before prescribing any such regulations, FMCSA must consider the “costs and benefits” of any proposal (49 U.S.C. 31136(c)(2)(A) and 31502(d)). As discussed in greater detail in the “Regulatory Analyses” section, FMCSA has determined that this proposed rule is not a significant regulatory action.
        IV. Background
        A. History of Rear Impact Guard Requirements
        The first Federal requirements concerning heavy vehicle rear underride protection were issued in 1952 by the Bureau of Motor Carriers of the Interstate Commerce Commission (ICC). The regulation required all heavy trucks, trailers, and semitrailers manufactured after December 31, 1952, to be equipped with a rear-end protection device designed to help prevent underride. The rule required that the ground clearance of the underride guard be no more than 30 inches when the vehicle is empty. The rule also required that the underride guard be located no more than 24 inches forward of the rear of the vehicle, and that it extend laterally to within 18 inches of each side. The underride device was required to be “substantially constructed and firmly attached” (17 FR 4445, May 15, 1952). The ICC's authority over motor carrier safety was transferred to DOT by Section 6(e)(6)(C) of the Department of Transportation Act (Pub. L. 89-670, 80 Stat. 931, 939-940, Oct. 15, 1966). The authority was delegated by the Secretary to the Federal Highway Administration (FHWA).
        On January 24, 1996, NHTSA published a final rule creating FMVSS Nos. 223 and 224 (61 FR 2004). The requirements apply to most trailers and semitrailers with a gross vehicle weight rating of 10,000 pounds or more, manufactured on or after January 26, 1998.
        FMVSS No. 223 specifies performance requirements that rear impact guards must meet before they can be installed on new trailers or semitrailers. It specifies strength and energy absorption requirements, as well as test procedures that manufacturers and NHTSA will use to determine compliance with the standard. The standard also requires the guard manufacturer to permanently label the impact guard to certify that it meets the requirements and to provide instructions on the proper installation of the guard.
        FMVSS No. 224 requires that most new trailers and semitrailers with a GVWR of 10,000 pounds or more be equipped with a rear impact guard meeting the requirements of FMVSS No. 223. The guards must extend laterally to within 4 inches of the sides of the trailer, have a ground clearance of no more than 22 inches, and be placed as close as possible to, but not more than 12 inches from, the rear of the vehicle. To ensure that the guard will perform properly, the standard also requires it to be mounted on the trailer or semitrailer in accordance with the installation instructions provided by the guard manufacturer.
        On September 1, 1999, FHWA published a final rule amending the FMCSRs to require trailers and semitrailers manufactured on or after January 26, 1998, with a GVWR of 10,000 pounds or more, be equipped with rear impact guards that meet the requirements of FMVSS No. 223. The rear impact guards must be installed to ensure that the trailer or semitrailer meets the rear end protection requirements of FMVSS No. 224. This rule was intended to ensure that the rear impact protection requirements of the FMCSRs are consistent with the FMVSS (64 FR 47703).
        As stated previously, NHTSA published two final rules on November 19, 2004, relating to rear impact guards. NHTSA amended the labeling requirement in FMVSS No. 223 to permit the rear impact guard certification label to be mounted on either the forward- or rearward-facing surface of the horizontal member of the guard (69 FR 67660), and amended the applicability section of FMVSS No. 224 to exclude RCC horizontal discharge semitrailers from the requirements of the standard (69 FR 67663). However, neither of NHTSA's November 2004 amendments to the FMVSS has been incorporated into the corresponding rear impact requirements in section 393.86 of the FMCSRs.
        B. History of Appendix G Requirements

        Section 210 of the 1984 Act required the Secretary of Transportation to establish standards for the annual or more frequent (i.e., periodic) inspection of all CMVs engaged in interstate or foreign commerce (49 U.S.C. 31142(b)). In response, FHWA adopted new section 396.17 on December 7, 1988, which requires all CMVs to be inspected at least once every 12 months (53 FR 49380, as amended on Dec. 8, 1989 (54 FR 50722)). The rule was based largely on (1) the CVSA vehicle out-of-service criteria, and (2) the vehicle portion of the FHWA National Uniform Driver-Vehicle Inspection Procedure (NUD-VIP). The latter was used as the standard for successful completion of the annual inspection, and the details of the required inspection were spelled out in Appendix G to the FMCSRs, also promulgated by the final rule. FHWA noted that utilization of the FHWA NUD-VIP would (1) provide the necessary inspection-related pass/fail criteria for the periodic inspection at a more stringent level than the vehicle out-of-service criteria, and (2) provide the proper level of Federal oversight in establishing and revising the criteria.
        V. Discussion of Proposed Rulemaking
        A. Rear Impact Guards in Appendix G
        Rear impact guards are not included on the list of items in Appendix G that must be examined during the annual inspection required by section 396.17. This means that a vehicle could pass the annual inspection with a missing or damaged rear impact guard. However, the operation of the vehicle with a missing or damaged rear impact guard would be a violation of the FMCSRs, and according to CVSA policy, a CVSA inspection decal would not be issued if the vehicle were inspected.
        In its petition, CVSA requested that the Agency amend Appendix G to include specific language regarding the inspection of rear impact guards during annual inspections. The petition stated:

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

        The Karths' petition requested that FMCSA “Add underride guards to Appendix G and 396.17 (Periodic Inspection),” but did not provide any supporting information.6

            6 The Karths' petition also requested that FMCSA change the definition of Out of Service Criteria to read as follows: “A vehicle(s) is placed out-of-service only when by reason of its mechanical condition or loading it is determined to be so imminently hazardous as to likely cause an accident or breakdown, or when such condition(s) would likely contribute to loss of control of the vehicle(s) by the driver, or to allow death and/or injuries from truck underride (passenger compartment intrusion) upon collision.” [Emphasis in original.] FMCSA notes that the North American Standard Out-of-Service Criteria are developed and maintained by CVSA, and are not part of the FMCSR. As such, any amendments to the Out-of-Service criteria are outside the scope of this rulemaking.

        In addition, several Senators asked GAO to review data on truck underride crashes and information on underride guards. Between January 2018 and March 2019, GAO conducted a performance audit that included a literature review and interviews with stakeholders familiar with underride crashes and guards.
        GAO Report GAO-19-264, published in March 2019, examines (1) the data that DOT reports on underride crashes, and (2) the development and use of underride guard technologies in the United States. GAO analyzed DOT's underride crash data for 2008 through 2017; reviewed NHTSA's proposed regulations and research on new guard technologies (80 FR 78418, Dec. 16, 2015); and interviewed stakeholders including DOT officials, industry and safety groups, and State officials.
        With respect to FMCSA, the GAO concluded that the lack of an annual inspection requirement for rear impact guards potentially affects the safety of the traveling public and FMCSA's ability to achieve its safety mission. GAO stated that “without explicitly including the inspection of the rear guard in Appendix G, there is no assurance that rear guards in operation will be inspected at least annually to ensure they perform as designed to prevent or mitigate an underride crash.” In its “Recommendations for Executive Action,” GAO stated:

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

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

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

        FMCSA agrees that the failure of a motor carrier to properly maintain an important safety feature such as a rear impact guard should result in the vehicle failing the required annual inspection. Given that rear impact guards have been included in part 393 for more than 65 years, and that part 396 requires all parts and accessories specified in part 393—to include rear impact guards—to be in safe and proper operating condition at all times, FMCSA assumes that the majority of motor carriers currently inspect rear impact guards annually despite the absence of an explicit requirement to do so in Appendix G. According to FMCSA's Motor Carrier Management Information System (MCMIS), out of approximately 5.8 million regulatory violations identified during inspections in 2017, only approximately 2,400—or about 0.041 percent—were rear impact guard violations.
        For these reasons, and as discussed in the Regulatory Analyses section, the Agency believes that amending Appendix G to include a review of rear impact guards and maintain consistency with part 393, would result in only a de minimis economic impact. FMCSA proposes to amend Appendix G to require rear impact guards to be inspected as part of the annual inspection required under § 396.17.
        B. Rear Impact Guard Labeling
        NHTSA amended the labeling requirement in FMVSS No. 223 on November 19, 2004, to permit the rear impact guard certification label to be mounted on either the forward- or rearward-facing surface of the horizontal member of the guard, if the label does not interfere with the retroreflective sheeting required by the FMVSS. Prior to the amendment, the certification label was required to be mounted on the forward-facing surface of the horizontal member, 12 inches inboard of the right end of the guard. NHTSA decided to allow rear impact guard manufacturers flexibility in determining where to place the label on the horizontal member of the guard so that they can minimize exposure to operational and environmental damage, while at the same time ensuring that it is readily accessible for visual inspection. FMCSA proposes to amend the labeling requirements in section 393.86(a)(6) to be consistent with the changes made by NHTSA in 2004.
        C. Applicability—RCC Horizontal Discharge Trailers
        Also on November 19, 2004, NHTSA amended the applicability section of FMVSS No. 224 to exclude RCC horizontal discharge trailers from its requirements. RCC horizontal discharge trailers are used to deliver asphalt to road construction sites and gradually to discharge asphalt mix into paving machines. Typically, the paving machine attaches to the rear axle of the RCC horizontal discharge trailer via hydraulic arms, and the edge of the trailer's conveyor belt extends over the paving machine opening. A rear impact guard required by the FMVSS would prevent the RCC horizontal discharge trailer from effectively connecting with a paving machine. NHTSA concluded that installation of rear impact guards on RCC horizontal discharge trailers would interfere with the intended function of the trailers and therefore exempted them from the standard.
        FMCSA proposes to amend (1) § 393.5 to add a definition of road construction controlled horizontal discharge trailer consistent with the NHTSA definition in FMVSS No. 224, and (2) § 393.86(a)(1) and § 393.86(b)(1) to make it clear that RCC horizontal discharge trailers are not required to have a rear impact guard installed, consistent with the amendments made by NHTSA in 2004.
        Although neither of NHTSA's November 2004 amendments was incorporated into the rear impact requirements in § 393.86, FMCSA is not aware of any enforcement or compliance issues that have arisen with respect to these items in the ensuing 15 years. As such, FMCSA does not expect the proposed amendments to have any impact on motor carriers.
        VI. International Impacts

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

        VII. Section-by-Section Analysis
        A. Part 393—Parts and Accessories Necessary for Safe Operation

          Section 393.86(a)(1) (General requirements for trailers and semitrailers manufactured on or after January 26, 1998).

        FMCSA proposes to amend this section by adding RCC horizontal discharge trailers to the list of vehicles that are not required to have a rear impact guard.

          Section 393.86(a)(6) (Certification and labeling requirements for rear impact protection guards).

        FMCSA proposes to amend this section to clarify that the label may be on the forward- or rear-facing surface of the horizontal member of the guard, provided it does not interfere with the retroreflective sheeting required by the FMVSS.

          Section 393.86(b)(1) (Requirements for motor vehicles manufactured after December 31, 1952 (except trailers or semitrailers manufactured on or after January 26, 1998)).

        FMCSA proposes to amend this section by adding RCC horizontal discharge trailers to the list of vehicles that are not required to have a rear impact guard.
        B. Appendix G to Subchapter B of Chapter III (Minimum Periodic Inspection Standards)
        FMCSA proposes to amend Appendix G by adding rear impact guards to the list of items required to be inspected pursuant to section 396.17.
        VIII. Regulatory Analyses
        A. Executive Order 12866 (Regulatory Planning and Review as Supplemented by Executive Order 13563 and DOT Regulations)
        The Office of Information and Regulatory Affairs determined that this proposed rule is not a significant regulatory action under section 3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. This rule is also not significant within the meaning of DOT regulations (49 CFR 5.13(a)). Accordingly, the Office of Management and Budget has not reviewed it under these Orders.
        In response to rulemaking petitions and a recommendation from the GAO, FMCSA proposes to amend Appendix G to Subchapter B of Chapter III in title 49 CFR. This amendment would add rear impact guards to the list of items that must be examined as part of the required annual inspection for each CMV.
        Section 393.86(a) currently requires most trailers and semitrailers manufactured on or after January 26, 1998, to be equipped with rear impact guards. This proposed rule would not require installation or maintenance of rear impact guards beyond the current requirements in § 393.86.
        The Agency does not expect this proposed rule to result in incremental costs or benefits beyond the baseline established in the FMCSRs. As required by 49 CFR 396.17, motor carriers currently complete annual inspections of all items identified in Appendix G. FMCSA assumes that motor carriers review rear impact guards in their annual inspection programs to remain in compliance with the current requirements in 49 CFR 396.3(a)(1), which states that rear impact guards must be installed and in safe and proper operating conditions at all times. Additionally, CMVs are subject to inspections conducted in accordance with the CVSA's North American Standard Inspection Program that may occur throughout the year, which include the examination of rear impact guards. According to MCMIS, most motor carriers comply with 49 CFR 396.3(a)(1). Specifically, out of approximately 5.8 million regulatory violations identified during inspections in 2017, only approximately 2,400—or about 0.041 percent—were rear impact guard violations.
        FMCSA also proposes two minor changes to maintain consistency between the FMCSRs and NHTSA's FMVSS Nos. 223 and 224. As described above, these changes would provide consistent labeling requirements and would exclude RCC horizontal discharge semitrailers from the requirements of this standard. FMCSA does not expect these administrative changes to result in incremental impacts.
        B. Executive Order 13771 Reducing Regulation and Controlling Regulatory Costs
        This proposed rule is expected to be neither an Executive Order 13771 regulatory action nor an Executive Order 13771 deregulatory action because there would be no cost impacts resulting from the rule.7

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

        C. Regulatory Flexibility Act (Small Entities)
        The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.) requires Federal agencies to consider the effects of their regulatory actions on small businesses and other small entities and to minimize any significant economic impact. The term “small entities” encompasses small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields and governmental jurisdictions with populations of less than 50,000.8
           Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities and mandates that agencies strive to lessen any adverse effects on these businesses. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

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

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

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

        In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the person listed under FOR FURTHER INFORMATION CONTACT.
        Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.
        E. Unfunded Mandates Reform Act of 1995
        The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $165 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2018 levels) or more in any one year. Though this proposed rule would not result in such an expenditure, the Agency does discuss the effects of this rule elsewhere in this preamble.
        F. Paperwork Reduction Act
        This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
        G. Executive Order 13132 (Federalism)
        A rule has implications for federalism under Section 1(a) of Executive Order 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” FMCSA determined that this proposal would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.
        H. Executive Order 12988 (Civil Justice Reform)
        This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
        I. Executive Order 13045 (Protection of Children)
        Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this proposed rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.
        J. Executive Order 12630 (Taking of Private Property)
        FMCSA reviewed this proposed rule in accordance with Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not result in the effect a taking of private property or otherwise have taking implications.
        K. Privacy
        Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. The Agency completed a Privacy Threshold Assessment (PTA) to assist in analyzing the new rulemaking to determine if it creates privacy risk for individuals that could require other entities to collect, use, store or share personally identifiable information (PII), or deploy technologies as a result of this rulemaking implementation. The PTA is also used to identify programs and systems that are privacy sensitive and help determine whether additional privacy compliance, such a PIA or System of Records Notice (SORN), is required for a particular rulemaking or system. Based on the preliminary adjudication of the PTA by the FMCSA Privacy Officer, this rule does not require the collection of PII and the Agency is not required to conduct a PIA. The PTA has been submitted to FMCSA's Privacy Officer for review and preliminary adjudication and to DOT's Privacy Officer for review and final adjudication. The DOT Privacy Office has determined that this rulemaking does not create privacy risk.
        L. Executive Order 12372 (Intergovernmental Review)
        The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
        M. Executive Order 13211 (Energy Supply, Distribution, or Use)

        FMCSA has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
        N. Executive Order 13175 (Indian Tribal Governments)
        This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
        O. National Technology Transfer and Advancement Act (Technical Standards)

        The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, FMCSA did not consider the use of voluntary consensus standards.
        P. National Environmental Policy Act of 1969

        FMCSA analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph (aa). The Categorical Exclusion (CE) in paragraph (aa) covers regulations requiring motor carriers, their officers, drivers, agents, representatives, and employees directly in control of CMVs to inspect, repair, and provide maintenance for every CMV used on a public road. The proposed requirements in this rule are covered by this CE and the NPRM does not have any effect on the quality of the environment. The CE determination is available for inspection or copying in the regulations.gov website listed under ADDRESSES.
        Q. Executive Order 13783 (Promoting Energy Independence and Economic Growth)
        Executive Order 13783 directs executive departments and agencies to review existing regulations that potentially burden the development or use of domestically produced energy resources, and to appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources. In accordance with Executive Order 13783, DOT prepared and submitted a report to the Director of OMB that provides specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency action that burden domestic energy production. This proposed rule has not been identified by DOT under Executive Order 13783 as potentially alleviating unnecessary burdens on domestic energy production.

          List of Subjects
          49 CFR Part 393
          Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
          49 CFR Part 399
          Motor carriers, Motor vehicle safety, Occupational safety and health.

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

          PART 393—PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION

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

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

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

          § 393.5
          Definitions.

            Road construction controlled horizontal discharge trailer means a trailer or semitrailer that is equipped with a mechanical drive and a conveyor to deliver asphalt and other road building materials, in a controlled horizontal manner, into a lay down machine or paving equipment for road construction and paving operations.

        3. In § 393.86 revise paragraphs (a)(1), (6) and (b)(1) to read as follows:

          § 393.86
          Rear impact guards and rear end protection.
          (a)(1) General requirements for trailers and semitrailers manufactured on or after January 26, 1998. Each trailer and semitrailer with a gross vehicle weight rating of 4,536 kg (10,000 pounds) or more, and manufactured on or after January 26, 1998, must be equipped with a rear impact guard that meets the requirements of Federal Motor Vehicle Safety Standard No. 223 (49 CFR 571.223) in effect at the time the vehicle was manufactured. When the rear impact guard is installed on the trailer or semitrailer, the vehicle must, at a minimum, meet the requirements of FMVSS No. 224 (49 CFR 571.224) in effect at the time the vehicle was manufactured. The requirements of paragraph (a) of this section do not apply to pole trailers (as defined in § 390.5 of this chapter); pulpwood trailers, low chassis vehicles, special purpose vehicles, wheels back vehicles (as defined in § 393.5), road construction controlled horizontal discharge trailers; and trailers towed in driveaway-towaway operations (as defined in § 390.5).

          (6) Certification and labeling requirements for rear impact protection guards. Each rear impact guard used to satisfy the requirements of paragraph (a)(1) of this section must be permanently marked or labeled as required by FMVSS No. 223 (49 CFR 571.223, S5.3). The label shall be placed on the forward or rearward facing surface of the horizontal member of the guard, provided that the label does not interfere with the retroreflective sheeting required by S5.7.1.4.1(c) of FMVSS No. 108 (49 CFR 571.108), and is readily accessible for visual inspection. The certification label must contain the following information:

          (b)(1) Requirements for motor vehicles manufactured after December 31, 1952 (except trailers or semitrailers manufactured on or after January 26, 1998). Each motor vehicle manufactured after December 31, 1952, (except truck tractors, pole trailers, pulpwood trailers, road construction controlled horizontal discharge trailers, or vehicles in driveaway-towaway operations) in which the vertical distance between the rear bottom edge of the body (or the chassis assembly if the chassis is the rearmost part of the vehicle) and the ground is greater than 76.2 cm (30 inches) when the motor vehicle is empty, shall be equipped with a rear impact guard(s). The rear impact guard(s) must be installed and maintained in such a manner that:

          PART 399—EMPLOYEE SAFETY AND HEALTH STANDARDS

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

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

        5. Amend Appendix G to Subchapter B of Chapter III by adding Section 15 as follows:
        Appendix G to Subchapter B of Chapter III—Minimum Periodic Inspection Standards

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

          Issued under authority delegated in 49 CFR 1.87.
          James W. Deck,
          Deputy Administrator.

      [FR Doc. 2020-27502 Filed 12-28-20; 8:45 am]
      BILLING CODE 4910-EX-P