issue-1996-07-12•Federal Register proposed rules — 1996-07-12
Federal Register proposed rules — 1996-07-12
issue-1996-07-12Federal Register proposed rules — 1996-07-12Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-17788 Fisheries of the Exclusive Economic Zone Off Alaska; North Pacific Fisheries Research Plan
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36702-36703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17788]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[I.D. 070196E]
RIN 0648-AI95
Fisheries of the Exclusive Economic Zone Off Alaska; North
Pacific Fisheries Research Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of availability; request for comments.
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SUMMARY: The North Pacific Fishery Management Council (Council) has
submitted for review by NMFS the repeal of the North Pacific Fisheries
Research Plan (Research Plan), Amendment 47 to the Fishery Management
Plan (FMP) for Groundfish of the Gulf of Alaska, Amendment 47 to the
FMP for the Groundfish Fishery of the Bering Sea and Aleutian Islands
Area (Groundfish FMPs), and Amendment 6 to the FMP for the Commercial
King and Tanner Crab Fisheries in the Bering Sea and Aleutian Islands
Area (Crab FMP). NMFS is requesting comments on these proposed actions
from the public. Repeal of the Research Plan would terminate the
comprehensive North Pacific groundfish and crab observer program and
the associated user-fee system developed by NMFS and the Council as
authorized by section 313 of the Magnuson Fishery Conservation and
Management Act (Magnuson Act). Amendments 47 and 47 to the groundfish
FMPs would establish an interim groundfish observer program to
supersede the Research Plan and authorize mandatory groundfish observer
coverage requirements for 1997. Amendment 6 to the crab FMP would
remove reference to the Research Plan. Copies of the amendments may be
obtained from the Council (see ADDRESSES).
DATES: Comments should be submitted by September 9, 1996.
A public hearing on the proposed repeal of the Research Plan will
be held
[[Page 36703]]
by teleconference on Monday, August 19, 1996, at 1 p.m., Alaska local
time. (For information regarding how to participate, see ADDRESSES.)
ADDRESSES: Comments should be submitted to Ronald J. Berg, Chief,
Fisheries Management Division, Alaska Region, NMFS, P.O. Box 21668,
Juneau, AK, 99802-1668, Attn: Lori Gravel, or delivered to the Federal
Building, 709 West 9th Street, Juneau, AK.
Copies of the FMP amendments and the Environmental Assessment/
Regulatory Impact Review/Initial Regulatory Flexibility Analysis
prepared for the amendments are available from the North Pacific
Fishery Management Council, 605 West Fourth Ave., Anchorage, AK 99501-
2252; telephone: 907-271-2809.
See SUPPLEMENTARY INFORMATION for locations of public hearings by
teleconference.
FOR FURTHER INFORMATION CONTACT: Kim S. Rivera, 907-586-7228.
SUPPLEMENTARY INFORMATION: Locations where interested persons may
participate in the August 19, 1996, public hearing by teleconference
are as follows:
1. Anchorage--North Pacific Fishery Management Council, 600 West
4th Avenue, Anchorage, AK 99501, telephone: 907-271-2809;
2. Juneau--National Marine Fisheries Service, Alaska Region, 706
West 9th Street, Juneau, AK 99802, telephone: 907-586-7228;
3. Kodiak--National Marine Fisheries Service Laboratory, Bldg. 53,
U.S. Coast Guard Support Center, Kodiak, AK 99615, telephone: 907-487-
5961;
4. Seattle--Alaska Fisheries Science Center, 7600 Sand Point Way
Northeast, Building 4, Room 7600, Seattle, WA 98115, telephone: 206-
526-4197;
5. Newport--Oregon Department of Fish and Wildlife, 2040 Southeast
Marine Science Drive, Newport, OR 97365, telephone: 503-867-0300.
The Magnuson Act requires that each Regional Fishery Management
Council submit any fishery management plan (FMP) or plan amendment it
prepares to NMFS for review and approval, disapproval, or partial
disapproval. The Magnuson Act also requires that NMFS, upon receiving
an FMP or amendment, immediately publish a document that the FMP or
amendment is available for public review and comment. During this
comment period, NMFS will conduct public hearings, as required by
section 313(c)(2) of the Magnuson Act, in Alaska, Oregon, and
Washington to receive public comments on the proposed repeal of the
Research Plan. NMFS will consider the public comments received during
the comment period in determining whether to approve the repeal of the
Research Plan and these amendments.
Repeal of the Research Plan
Beginning in April 1995, the Council and industry representatives
voiced numerous concerns about certain elements of the Research Plan.
The fundamental issues were cost-related and included: (1) Cost equity
issues associated with the redistribution of observer costs throughout
the crab, groundfish, and halibut sectors; (2) the ability of NMFS to
require necessary observer coverage levels for special management
programs (e.g., community development quotas, individual vessel bycatch
and discard accountability) given the fee limitations outlined in the
Magnuson Act (i.e., fees cannot exceed 2 percent of the exvessel value
of retained Research Plan fish); and (3) potential reductions in
observer coverage due to cost increases associated with Research Plan
objectives to address observer data integrity. As a result, the Council
recommended delaying full implementation of the Research Plan and
requested that NMFS work with Council-appointed industry
representatives on the Observer Oversight Committee (OOC) to address
these concerns and others of a less substantial nature.
The OOC met with NMFS and interested parties in September and
October 1995. Through discussion and negotiation, the OOC arrived at
acceptable solutions to most of the Council's stated Research Plan
implementation problems. The OOC was unable to reach consensus on
issues associated with the redistribution of costs under the Research
Plan. The distribution of costs throughout the crab, groundfish, and
halibut fleets on the basis of landed value of catch, and implemented
through the Research Plan user fee, resulted in significantly increased
observer costs for some industry sectors and generally reduced costs
for catcher vessels and small processors. Even though this change in
cost distribution was integral to the Research Plan, some participants
in the groundfish and crab fisheries asserted that they had been
encumbered with an inequitably high share of the cost of the North
Pacific observer programs.
Because of the inability to resolve these critical issues, the
Council voted at its December 1995 meeting to repeal the Research Plan
and its associated fee-based funding mechanism. In response, NMFS
issued an interim final rule (61 FR 13782, March 28, 1996) that
discontinued the 1995 Research Plan fee collection process, authorized
the issuance of annual Federal processor permits without regard to
payment of Research Plan fees, and established a procedure to refund
all fees collected (approximately $5.6 million) by NMFS under the 1995
Research Plan, along with accrued interest.
FMP Amendments
Amendments 47 to the Groundfish FMPs would authorize an interim
North Pacific groundfish observer program and authorize groundfish
observer coverage requirements through 1997. Amendment 6 to the Crab
FMP would remove language associated with the Research Plan.
A proposed rule to implement the repeal of the Research Plan and
the FMP amendments has been submitted for Secretarial review and
approval and is scheduled to be published within 15 days of the date of
publication of this document. The proposed rule to implement Amendments
47 also will include 1997 observer coverage requirements, vessel and
processor responsibilities under the interim groundfish observer
program, and criteria for the certification, suspension, and
decertification of observers and observer contractors.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 8, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-17788 Filed 7-9-96; 1:23 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-17785 Parts and Accessories Necessary for Safe Operation; Antilock Brake Systems
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36691-36698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17785]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 393
[FHWA Docket No. MC-94-31]
RIN 2125-AD42
Parts and Accessories Necessary for Safe Operation; Antilock
Brake Systems
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The FHWA is proposing to amend the Federal Motor Carrier
Safety Regulations (FMCSRs) to require that air-braked truck tractors
manufactured on or after March 1, 1997, and air-braked single-unit
trucks, buses, trailers, and converter dollies manufactured on or after
March 1, 1998, be equipped with antilock brake systems (ABSs) that meet
the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No.
121. The FHWA is also proposing that hydraulic braked trucks and buses
manufactured on or after March 1, 1999, be equipped with ABSs that meet
the requirements of FMVSS No. 105. This rulemaking is intended to
ensure that the in-service brake standards of the FMCSRs are consistent
with the FMVSSs and to improve the safety of operation of commercial
motor vehicles (CMVs) by reducing the incidence of accidents caused by
jackknifing and other losses of directional stability and control
during braking. With regard to CMVs manufactured prior to the dates
previously mentioned, the FHWA is not proposing that motor carriers be
required to retrofit such vehicles with ABSs. However, the FHWA is
requesting comments on this subject.
DATES: Comments must be received on or before September 10, 1996.
ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-94-31,
room 4232, HCC-10, Office of the Chief Counsel, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. All
comments received will be available for examination at the above
address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self- addressed, stamped postcard.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Motor
Carrier Research and Standards, HCS-10, (202) 366-4009; or Mr. Charles
E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354,
Federal Highway Administration, 400 Seventh Street, SW., Washington, DC
20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday
through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
Section 4012 of the Intermodal Surface Transportation Efficiency
Act of 1991 (ISTEA) (Pub. L. 102-240, 105 Stat. 1914, 2157) directs the
Secretary of Transportation to initiate a rulemaking concerning methods
for improving the braking performance of new commercial
[[Page 36692]]
motor vehicles,1 including truck tractors, trailers, and their
dollies. Congress specifically directed that the rulemaking examine
antilock systems, as a means of improving brake compatibility, and
methods of ensuring effectiveness of brake timing.
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\1\ For the purposes of section 4012, the term ``commercial
motor vehicle'' means any self-propelled or towed vehicle used on
highways to transport passengers or property if such vehicle has a
gross vehicle weight rating (GVWR) of 11,794 kilograms (kg) (26,001
pounds) or more. The NHTSA's final rule on ABS applies to medium and
heavy vehicles with a GVWR of 4,536 kg (10,001 pounds) or more.
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The NHTSA Rulemaking
In response to the ISTEA, the National Highway Traffic Safety
Administration (NHTSA) published a final rule amending Federal Motor
Vehicle Safety Standard (FMVSS) No. 105, Hydraulic Brake Systems, and
FMVSS No. 121, Air Brake Systems, to require that medium and heavy
vehicles be equipped with an antilock brake system (ABS) to improve the
lateral stability (i.e., traction) and steering control of these
vehicles during braking (60 FR 13216, March 10, 1995). For truck
tractors, the ABS requirement is supplemented by a 48.3 kilometer per
hour (30-mph) braking-in-a-curve test on a low coefficient of friction
surface using a full brake application. By improving lateral stability
and control, these requirements will significantly reduce jackknifing
and other losses of control during braking as well as the deaths and
injuries caused by those control problems.
In addition, the NHTSA final rule requires all powered heavy
vehicles to be equipped with an in-cab lamp to indicate ABS
malfunctions. Truck tractors and other trucks equipped to tow air-
braked trailers are required to be equipped with two separate in-cab
lamps: One indicating malfunctions in the towing vehicle ABS and the
other in the trailer ABS. The requirement for the in-cab lamp to alert
the driver of malfunctions in the trailer ABS applies to trucks and
truck tractors manufactured on or after March 1, 2001 (61 FR 5949,
February 15, 1996). Trailers produced during an initial 11-year period
(March 1, 1998 through March 1, 2009) must also be equipped with an
external malfunction indicator that is visible to the driver of the
towing tractor (61 FR 5949).
The amendments to FMVSS No. 105 become effective on March 1, 1999.
With the exception of the in-cab indicator for trailer ABS
malfunctions, the amendments to FMVSS No. 121 become effective on March
1, 1997, for truck tractors, and on March 1, 1998, for air-braked
trailers, converter dollies, single unit trucks, and buses.
FHWA Notice of Intent
On March 10, 1995, the FHWA published a notice of intent to
initiate a rulemaking concerning requirements for ABSs on CMVs
operating in interstate commerce (60 FR 13306). The notice of intent
included an extensive discussion of the NHTSA's ABS fleet study
conducted between 1988 and 1993. A copy of the study has been placed in
FHWA Docket No. MC-94-31. The NHTSA tracked the maintenance performance
histories of 200 truck tractors and 50 semitrailers equipped with ABSs,
as well as the histories of a comparison group of 88 truck tractors and
35 semitrailers that were not equipped with ABSs, to determine the
incremental maintenance costs and patterns associated with installing
ABSs on these heavy vehicles.\2\
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\2\ ``An In-Service Evaluation of the Reliability,
Maintainability, and Durability of Antilock Braking Systems (ABS)
for Heavy Truck Tractors,'' DOT Report No. 807 846, March 1992, and
``An In-Service Evaluation of the Reliability, Maintainability, and
Durability of Antilock Braking Systems (ABS) for Semitrailers,'' DOT
Report No. 808 059, October 1993.
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The authors concluded that, based upon the data collected during
the fleet study, currently available ABSs are reliable, durable, and
maintainable. While an ABS is not a zero-cost maintenance item, its
presence on a vehicle did not substantially increase maintenance costs
(less than one percent for tractors, less than two percent for
trailers) or decrease vehicle operational availability.
The NHTSA data indicate that ABSs are neither difficult nor unduly
expensive to maintain. The fleet test results do not indicate that the
level of maintenance required to keep an ABS functional is unreasonable
relative to the safety benefits that will result from the use of these
systems.
The FHWA concluded that a rulemaking should be initiated to propose
amending the FMCSRs to include ABS requirements and solicited comments
on this decision.
Discussion of Comments
The FHWA received 11 comments in response to the March 10, 1995,
notice. The commenters were: Advocates for Highway and Auto Safety
(AHAS); AlliedSignal Truck Brake Systems Company (AlliedSignal); the
American Trucking Associations, Inc. (ATA); Mr. G. Frank Brda, a former
CMV owner-operator; Heavy Duty Brake Manufacturers Council (HDBMC);
Insurance Institute for Highway Safety (IIHS); Midland-Grau Heavy Duty
Systems; National Association of Independent Insurers (NAII); Mack
Trucks, Inc.; National Automobile Dealers Association (NADA); and,
Rockwell WABCO Vehicle Control Systems (Rockwell).
Generally the commenters were in favor of the FHWA initiating a
rulemaking to require that motor carriers maintain the ABSs. However,
the ATA, NADA, and AlliedSignal expressed concern about the FHWA
proceeding with a notice of proposed rulemaking. The specific concerns
or issues raised by the commenters are discussed below.
Interpretation of Sec. 396.3
The ATA and AlliedSignal believe that Sec. 396.3, Inspection,
repair, and maintenance, would adequately cover the ABS requirement and
that a new provision may not be necessary. The ATA states that:
This language makes it clear that a system necessary for safety
must be maintained in proper condition. It also includes the
flexibility to hold that the system can be disconnected if, because
of existing circumstances, doing so is the safest policy. For
example, we can foresee a time when some failure in an ABS system
will imperil braking. Until a cure for that problem is developed,
unplugging the specific model involved may be the most prudent
course.
The ATA believes NHTSA's research shows serious operational
problems with ABSs and the failure warning lamp systems that were not
reflected in the FHWA's March 10, 1995, notice of intent. The ATA
suggests a review of the NHTSA reports ``to get an understanding of
both the reliability and safety limitations of ABSs which were
indirectly covered by the agency and point to serious concerns about
the technology.'' The ATA summarized its recommendation to the FHWA as
follows:
ATA believes that properly administered, FMCSR 396.3(a)(1) can
be used to assure that carriers provide appropriate maintenance for
ABS and recommends that this be the strategy the agency follows in
this matter. Given present experience and that NHTSA itself has
pointed to serious operational difficulties, we believe more about
its actual performance must be known before attempting to write a
detailed ABS in-use regulation.
AlliedSignal shared the ATA's views on Sec. 396.3 stating that
``[t]he current FMCSR 396.3(a)(1) assures that operators maintain brake
systems in good working order and therefore possibly negating the need
to change FMCSR 396.''
The FHWA does not agree with the ATA and AlliedSignal. Section
[[Page 36693]]
396.3(a)(1) requires that parts and accessories be in safe and proper
operating condition at all times. This includes parts and accessories
specified in part 393 and any additional parts and accessories which
may affect the safety of operation of the vehicle, including but not
limited to, frame and frame assemblies, suspension systems, axles and
attaching parts, wheels and rims, and steering systems. The FHWA has
historically interpreted Sec. 396.3(a)(1) as applying only to the parts
and accessories required by part 393. Parts and accessories that are
not required by part 393 are considered additional or optional
equipment which is not necessary for the safe and proper operation of
commercial motor vehicles. The applicability of Sec. 396.3(a)(1) to
optional equipment is limited to only those cases in which a failure or
defect in the equipment creates a hazard to the motoring public or
adversely affects the performance or function of any piece of equipment
required by part 393.
If the FHWA does not establish a requirement for ABSs under part
393, such systems could only be considered as optional equipment under
the FMCSRs. Since a failure of the ABS would not affect the foundation
brake system, a CMV could meet all of the current requirements of
subpart C of part 393 with an inoperative ABS. Therefore, the FHWA
could not require motor carriers to systematically inspect, repair, and
maintain ABSs unless part 393 is amended.
In response to the ATA's concern that motor carriers need the
flexibility to disconnect ABSs if, ``because of existing circumstances,
doing so is the safest policy,'' the FHWA does not foresee the
development of such problems. In the event that an ABS or vehicle
manufacturer, or the NHTSA determines that there is a safety-related
defect, the manufacturers are responsible for notifying purchasers of
the defective equipment and remedying the problem free of charge (49
CFR part 577, Defect and Noncompliance Notification). If a manufacturer
or the NHTSA indicates there is an ABS defect of the severity alluded
to by the ATA, the FHWA would immediately notify all Federal officials
responsible for enforcing the FMCSRs and State officials responsible
for enforcing compatible State regulations to ensure that carriers are
not unfairly penalized for inoperable ABSs. However, in the absence of
a notification from a vehicle or ABS manufacturer or the NHTSA, the
FHWA does not intend to allow motor carriers to disconnect the ABSs.
Research on ABS Operation and Failure Modes
The NADA and the ATA believe the FHWA should evaluate in-use ABS
operation and failure modes prior to establishing a requirement for
motor carriers to maintain the systems. The NADA indicated that
``[u]ntil such an evaluation is undertaken, an ABS maintenance rule
would be premature.'' The ATA states:
There are several problems with ABS which will impact its
inspection and repair.
As NHTSA's ABS studies showed and our follow up research
confirms * * * there are numerous troubles with this technology.
Many of the problems involve the failure warning system. False
warning signals are a daily occurrence in fleets with a large number
of ABS equipped vehicles. Examples of such problems are codes for
malfunctions which, when checked, didn't occur; alien codes not
defined in the maintenance manual and phantom codes which come and
go, typically disappearing before the vehicle gets to the shop and
hopefully unrelated to a serious problem.
In addition to lamps illuminating when no failure can be found,
electrical failures occur which do not cause either the warning lamp
to come on or a failure code to be set, sometimes because the
warning system itself has failed. Also, the warning lamp does not
signal all mechanical failures and, as FMVSS 121 is now written, it
is not required to do so.
The warning light system is not directly connected to each part
of the ABS. Typically it is coupled to the ECU which grounds the
lead when a failure is detected. The ECU makes its decision by
taking input from many sources and using electronic logic to
calculate whether all is well. The only thing one can say for sure
when the warning light is on is that the bulb filament is intact and
receiving electrical power.
Given the warning lamp limitations cited above, its use as an
enforcement tool to assess whether ABS is working properly is
questionable. As it is presently configured, there is no quick,
accurate, easy way to do a complete functional test of the total ABS
short of making a panic stop and watching for wheel lockup,
something impractical for roadside inspection.
In addition to concerns about research, the ATA believes the FHWA
should ensure that the availability of spare parts to keep ``any
vintage ABS acceptably functioning for 20 years'' prior to requiring
motor carriers to maintain the ABSs. The ATA states:
There is a very good possibility that in twenty years, there
will be no source of repair parts for today's ABS. Certainly there
is nothing available now with which to fix most of the 1970's
systems. While it can be argued that the deletion of the requirement
for ABS from FMVSS 121 eliminated the market, we are not convinced
that this was the only major factor impacting the aftermarket spare
component arena. Other influences were an extremely small market and
the need to retain antiquated processes to build outmoded parts.
The ATA further states that ``[i]f FHWA/OMC plans to require that
carriers keep systems in repair, then it is only fair that the agency
help assure the job can be done.''
The FHWA does not consider the issues raised by the ATA and NADA to
be sufficient reasons to delay issuing a proposal to require carriers
to maintain the ABSs required by the NHTSA. Neither the ATA nor the
NADA identify specific safety-related issues that would justify
postponing an in-service requirement for ABS. The NHTSA fleet study
provides a clear indication of how ABSs behave in a real-world
environment. Further, there is no documentation of an ABS defect or
malfunction contributing to an accident as the ATA suggests may occur
in the future.
The NHTSA studied the reliability, maintainability, and durability
of ABSs installed in 200 truck tractors that were operated in normal
revenue service by 17 fleets. All of the ABSs which were available in
1988 were included in the test and the antilock systems were installed
on truck tractors produced by all of the major United States truck
tractor manufacturers. During the two-year test, the ABS equipped
tractors accumulated approximately 40 million miles of in-service
revenue-producing operation. Maintenance activities for all 200 ABS-
equipped tractors as well as 88 comparable tractors without ABSs were
monitored and recorded. Each of the ABS-equipped tractors had on-board
data recorders to monitor each ABS operation and keep a record of truck
mileage, number of brake applications, brake pressure distribution, and
acceleration during braking. To verify that these records were
representative of normal non-ABS operation, 16 truck tractors out of
the 88 control trucks were also equipped with on-board data recorders.
All accidents involving the participating tractors were investigated,
with particular attention being given to those which might have
involved braking and/or ABS operation.
The NHTSA also conducted a two-year study of the performance,
reliability, maintainability, and durability of ABSs installed on 50
semitrailers that were operated in normal revenue service by five
fleets. All ABSs which were available in 1990 were included in the
test, and the ABSs were installed on semitrailers produced by three
different manufacturers. The ABS-equipped semitrailers accumulated
approximately four million miles of in-service revenue-producing
operation.
[[Page 36694]]
Maintenance activities for all 50 ABS-equipped semitrailers as well as
35 comparable semitrailers without ABS were monitored and recorded. The
on-board recorders kept a record of semitrailer mileage, number of
brake applications, brake pressure distribution, voltage, and
deceleration during braking.
The authors of the studies concluded that, based upon the data
collected during the fleet study, the 1988 ABSs used on the truck
tractors, and the 1990 ABSs used on the trailers, were reliable,
durable, and maintainable. The researchers acknowledge that
installation-related problems were encountered during the study. The
problems included adjustments, repairs, or, in some cases replacement,
of wiring cables, wiring connectors, sensors, modulator valves, or
other components. The researchers indicated that many of these problems
were related to the experimental nature of the ABS installations on the
test vehicles.
As the NHTSA indicated in its report on the truck tractor study,
only one U.S. heavy truck manufacturer (Freightliner Corporation)
offered ABS as a fully-engineered production option on its line of
trucks. In contrast, other manufacturers had only limited experience
installing small numbers ofcurrent-generation ABSs and, therefore, had
not worked out many of the detailed design aspects of installing the
systems. Some of the manufacturers had no experience with the systems
they agreed to install for the purposes of the fleet study. Many of the
ABS installations required a collaborative effort on the part of ABS
suppliers, truck manufacturers, wheel and hub suppliers, and wiring
harness suppliers. As a result, the quality of some of the
installations was not typical of what would be expected for production-
line installations.
The FHWA believes the NHTSA fleet study provides sufficient data
concerning the reliability, durability, and maintainability for ABSs
and that it is not necessary to conduct additional research. Although
the NHTSA experienced installation-related ABS problems, there is no
indication that production-line ABSs installed to meet the NHTSA
requirements would have problems of the proportion experienced in the
fleet study. Neither the ATA nor the NADA have identified flaws in
NHTSA's research methodology or explained what additional aspects of
ABS operation need to be studied.
With regard to the ATA's concerns about ABS malfunction indicators,
the FHWA does not anticipate widespread problems on vehicles
manufactured on and after the effective date of the NHTSA requirements.
If the ABS malfunction indicator is activated, it is a clear signal
that a repair or adjustment to the system is necessary. Either the
malfunction signal is correct (indicating a problem with one or more
ABS components (ECU, wheel sensors, etc.)) and the ABS is not fully
operational, or the malfunction indicator is faulty and the ABS is
fully operational. In either case, the cause for the malfunction signal
should be properly diagnosed and corrected. Establishing a requirement
under the FMCSRs will ensure that motor carriers take the appropriate
steps to have the problem diagnosed and corrected.
In response to the ATA's comments about the FHWA helping to assure
that motor carriers can maintain the ABSs for 20 years, the agency is
responsible for establishing safety regulations and does not have
authority to regulate the availability of spare parts. The FHWA notes
that most motor carriers do not keep CMVs for 20 years. Those that
choose to keep vehicles in service for such periods must take full
responsibility for ensuring, at a minimum, that the vehicles meet all
safety requirements that were applicable at the time the vehicles were
manufactured. Motor carriers have the option of upgrading or
retrofitting the vehicles brake systems to meet subsequent safety
standards. Therefore if parts are not available in 20 years to maintain
the ABSs with which the vehicles were originally equipped (in
accordance with the NHTSA requirements), motor carriers have the option
of retiring those vehicles from service in interstate commerce, or
retrofitting the vehicles with ABSs for which spare parts are
available. In any case, the NHTSA's ABS requirements will create a
permanent market for replacement parts.
Retrofitting
Several of the commenters discussed retrofitting of vehicles
manufactured prior to the effective dates of the NHTSA requirements.
Most of these commenters indicated that the FHWA should not require
retrofitting. The ATA indicated that manufacturers have made ABS an
integral part of vehicle design and that ABS is not a technology which
can safely and effectively be retrofitted. The ATA states:
Installation of this equipment requires additional wiring and
wheel sensor hardware that would be very costly and difficult or
impossible to install in some existing vehicles, especially on power
units.
To monitor the motion of wheels, ABS relies on some sort of
device to sense their speed. This equipment is either a part of the
axle hub or is internal to the axle itself. In either case, fitting
it to existing vehicles not so equipped is very difficult. Heat
treated axle housings may have to be drilled and the scrap ``chips''
generated kept from contaminating the axle lubricant, both of which
require special knowledge and equipment. Wheel end hardware may need
changing and this could require special, off-vehicle, welding and
machining of hub flanges and even fabrication of parts to assure
existing wheels and drums can be retained.
The ATA also indicated that wiring must be properly routed to avoid
electromagnetic interference with ABS signals and mandated warning
lamps. The ATA emphasized that none of these activities are within the
normal scope of work of either truck maintenance facilities or garages
specializing in air brake systems.
The ATA concluded:
FHWA/OMC (Office of Motor Carriers) has adopted the proper
strategy in not suggesting ABS retrofit and that stance should be
maintained. ATA requests that FHWA/OMC confirm it discourages
retrofitting because there are serious difficulties associated with
such installations on a broad scale and there are technical
considerations that have not been fully explored which could
introduce operational and safety problems.
With regard to comments in support of a retrofitting requirement,
the NAII, in its November 8, 1993, comments in response to the NHTSA's
NPRM on ABS (the NAII included a copy of its 1993 comments with its
response to the FHWA's notice of intent), stated:
Requiring ABS on all heavy vehicles would save among 379 and 600
lives annually, prevent between 19,825 and 34,517 injuries and save
approximately $541 million to $650 million in property damage, a
figure that does not include medical costs and lost time costs. With
the immediate benefit of saving lives and avoiding injuries, we go
beyond the NPRM to urge that antilock brakes be required to be
retrofitted onto existing medium and heavy vehicles and that the
implementation date for all vehicles be accelerated to two years
after final rulemaking.
The FHWA agrees with the ATA that it would be inappropriate to
propose an ABS retrofitting requirement. The FHWA believes the NHTSA
research provides a strong indication of the types of technical
problems that would be expected if motor carriers were required to
retrofit vehicles with ABS.
As noted earlier, at the time the NHTSA conducted its research on
ABS for truck tractors, only one heavy truck manufacturer offered ABS
as a fully- engineered production option on its line of trucks. In
contrast, most of the remaining truck tractor manufacturers had only
limited experience installing
[[Page 36695]]
small numbers of ``current-generation'' ABSs and, therefore, had not
worked out many of the detailed design aspects of installing the
systems. The retrofitting of ABSs on truck tractors required teamwork
on the part of ABS suppliers, truck manufacturers, wheel and hub
suppliers, and wiring harness suppliers. Even with this team effort,
some of the test vehicles were delivered to the participating motor
carriers with pre-existing problems that, for one reason or another,
prevented the ABS from functioning properly.
In all, 116 out of the 200 truck tractors (58 percent) experienced
installation/preproduction design related problems. The researchers
indicated that the relatively high percentage is indicative of the
``newness'' of the systems in North American applications. Table 1
summarizes the types of problems that were experienced in the truck
tractor portion of the fleet study. Table 2 summarizes installation-
related problems in the semitrailer portion of the fleet study.
Table 1.--Truck-Tractor ABS Installation/Pre-Production Design-Related
Problems by System Component Needing Work
------------------------------------------------------------------------
Number of
trucks Number of
requiring trucks
inspections, requiring
ABS component adjustments replacements
or repairs of this
of this component
component
------------------------------------------------------------------------
Wiring Cables............................... 12 \2\ 23
Wiring Connectors........................... 29 10
Sensors and Related Parts................... 5 10
Modulator Valves and Related Parts.......... 13 \3\ 50
ECUs........................................ 17 \2\ 20
Others \1\.................................. 7 0
Total No. Of Trucks per Column.............. 57 102
Overall No. of Trucks Involved in
Installation/Pre-Production Design Related
Problems
(1)116
------------------------------------------------------------------------
\1\ Others include: rewiring due to installation oversights; two
miscellaneous wire resecurements; and the addition of one ground strap
to adjust the ECU.
\2\ One problem represented all of these replacements.
\3\ One problem involved 40 of these trucks, while another involved 10
trucks.
Note: Individual column numbers are not additive since specific trucks
may have needed maintenance on more than one component.
Table 2.--Semitrailer ABS Installation/Pre-Production Design-Related
Problems by System Component Needing Work
------------------------------------------------------------------------
Number of
semitrailers Number of
requiring semitrailers
inspections, requiring
ABS component adjustments replacements
or repairs of this
of this component
component
------------------------------------------------------------------------
Wiring Cables............................... 0 2
Wiring Connectors........................... 11 0
Sensors and Related Parts................... \2\ 3 10
Modulator Valves and Related Parts.......... 0 0
ECUs........................................ 0 5
Others \1\.................................. 0 26
Total No. of Semitrailers per Column........ 14 31
Overall No. Of Semitrailers Involved in
Installation/Pre-Production Design- Related
Problems
(1) 31
------------------------------------------------------------------------
\1\ Others include: Isolation diode installation and replacement of ECU
grommets.
\2\ Sensor adjustment resulted from incorrectly adjusted wheel bearings
on new semitrailers.
Note: Individual column numbers are not additive since specific
semitrailers may have needed maintenance on more than one component.
The NHTSA report on the truck tractor portion of the fleet study
indicates the percentage of installation-related problems is similar to
that observed by many of the participating fleets when they receive
newly-built vehicles. However, the FHWA believes the percentage of
malfunctions would be much greater if motor carriers were required to
attempt retrofitting innumerable configurations of air-braked vehicles.
The FHWA considers NHTSA's fleet study to be a best-case scenario for
retrofitting ABS in that the vehicle and brake manufacturers (as well
as wheel and hub manufacturers) worked together to complete the
installations of the ABS. Even with this collaborative effort of
experienced engineers, numerous problems related to the retrofitting
process surfaced during the fleet study.
Although many motor carriers have excellent maintenance programs
and talented engineering staff, the FHWA believes that the majority of
motor carriers could not retrofit their vehicles without a substantial
amount of technical assistance from vehicle and component
manufacturers. Without this technical assistance it is more likely than
not that many of the retrofitted ABS installations would not be
performed correctly, thereby creating the potential for a degradation
of the CMV's braking performance. It is unrealistic to expect
manufacturers to be able to help more than 300,000 motor carriers
complete the retrofitting of several million vehicles while working on
the design and installation of ABSs on newly manufactured vehicles.
Further, it is unlikely that a collaborative effort between vehicle and
component manufacturers and the motor carriers would result in better
installations than those experienced in the NHTSA fleet study.
The FHWA believes the cost of retrofitting a commercial motor
vehicle with ABS is likely to be higher than original equipment
manufacturer (OEM) installations because the vehicle will have to be
removed from revenue service during the retrofitting process. This is
not the case for brand new vehicles. Also, repeated adjustments or
repairs of the type described in the NHTSA research reports would mean
more down time for the retrofitted vehicles.
In addition, Sec. 396.25 of the FMCSRs, Qualifications of brake
inspectors, prohibits motor carriers from allowing their employees to
be responsible for ensuring that brake-related inspection, repair, and
maintenance tasks are performed correctly unless the employee has at
least one year of training and/or experience. This requirement was
issued in response to section 9110 of the Truck and Bus Safety and
Regulatory Reform Act of 1988 (49 U.S.C. 31137(b)). Therefore, motor
carriers that lack sufficient staff with at least one year of training
and/or experience at retrofitting ABSs prior to the effective date of a
retrofitting requirement would have to rely on commercial garages or
similar facilities to fulfill a retrofitting requirement. Since many of
these facilities would also have very little if any experience
retrofitting ABSs, there is no assurance that they could do a better
job than the motor carriers' employees. Therefore, most motor carriers
could not allow their employees to attempt the retrofitting of ABSs,
and would not have a practical means to satisfy a retrofitting
requirement.
Inspection Procedures
Several of the commenters discussed roadside inspection procedures
to determine if ABSs are in working order. The HDBMC recommends that
the FHWA ``provide for maintenance of
[[Page 36696]]
ABS systems by regulation and include a[n] ABS roadside inspection
procedure.'' The HDBMC recommends that the roadside inspection
procedure include a check of the ABS malfunction indicator.
Midland-Grau also recommends that vehicle inspections include
checking the operational status of the ABS. Midland-Grau states:
The majority of antilock systems on the market have an initial
startup check sequence along with on-board diagnostics which
monitors the operational status of the ABS. The startup sequence
consists of watching the malfunction indicator light on the dash to
flash along with listening to the ABS modulator valve to exhaust
(blow-down). This operation can be performed simply by having the
driver perform the following steps:
1. Shut down the vehicle's engine by turning off the ignition
switch[;]
2. Have the driver fully apply the brakes[; and,]
3. With the brakes fully applied have the driver turn on the
ignition switch[.]
When the driver follows the above sequence of steps the ABS
malfunction indicator lamp should flash once followed by the ABS
modulator valves exhausting (blow-down). If the ABS is not operating
properly then either the ABS malfunction light will remain on and/or
the ABS modulator valves will not exhaust (blow-down). This quick
check insures that the ABS is fully operational.
Rockwell recommends that the inspection procedure be simple and
straightforward. Rockwell states that ``[t]he inspections should: (1)
[b]e conducted in a short amount of time, (2) [p]rovide meaningful
information about the condition of the ABS[,] and (3) [u]tilize the
self-diagnostic system capabilities required by rulemaking.'' Rockwell
believes the inspection should consist of a basic bulb check of the ABS
indicator lamp followed by a verification that the ABS indicator lamp
deactivates at the end of the check function.
The FHWA appreciates the information provided by the brake
manufacturers and will share this information with the Commercial
Vehicle Safety Alliance (CVSA)--the organization of Federal, State and
Provincial government agencies and representatives from private
industry in the United States, Canada and Mexico dedicated to
improvement of commercial vehicle safety. State agencies responsible
for conducting roadside inspections are members of the CVSA. The FHWA
will work with the appropriate committees within the CVSA to develop
the necessary training material to help inspectors identify ABS
components and determine if the ABS malfunction indicators are working
properly. However, the FHWA does not intend to include roadside
inspection procedures in the FMCSRs. The establishment of inspection
procedures for use by State officials is a non-regulatory function that
is best left to the CVSA with assistance from the FHWA, the NHTSA, and
brake manufacturers.
With regard to the responsibilities of motor carriers in
maintaining the ABSs required by the NHTSA, the FHWA intends to work
with industry groups and brake manufacturers to develop educational
material to help motor carriers understand how the ABSs operate
(including the malfunction indicators), and to identify appropriate
industry sources for information concerning ABS maintenance. The FHWA
does not believe that including detailed systematic, inspection,
repair, and maintenance requirements in part 396 of the FMCSRs would
benefit the industry. The FHWA requests comments on this issue.
Discussion of the Proposal
Creation of Section 393.55
The FHWA proposes to amend the FMCSRs by adding a new Sec. 393.55,
Antilock Brake Systems. This section would be added to subpart C of
part 393, Brakes. The provisions of paragraph (a) would require that
hydraulic braked trucks and buses manufactured on or after March 1,
1999, be equipped with an ABS that meets the requirements of FMVSS No.
105. Paragraph (b) would require indicator lamps on hydraulic-braked
vehicles to alert the driver of ABS malfunctions. Paragraph (c) would
require that each air-braked truck tractor manufactured on or after
March 1, 1997, be equipped with an ABS that meets the requirements of
FMVSS No. 121. Paragraph (c) would also cover air braked trucks, buses,
trailers, and converter dollies manufactured on or after March 1, 1998.
The requirement for ABS malfunction indicators on air braked vehicles
would be covered under paragraph (d). Paragraph (e) would cover the
requirement for the external indicator lamp on trailers and converter
dollies manufactured between March 1, 1998, and March 1, 2009.
Applicability to Canadian and Mexican Vehicles
The FHWA is not proposing an exemption for CMVs operated in the
United States by Canada- and Mexico-based motor carriers. Although the
Federal governments of Canada and Mexico have not indicated whether
they intend to require ABSs for CMVs operating in their countries, the
FHWA believes that it is appropriate to require ABS on foreign-based
vehicles manufactured on or after the effective dates of the NHTSA
requirements if those vehicles are operated within the United States.
This preliminary decision is consistent with the applicability of the
requirements of parts 393 and 396 of the FMCSRs and ensures that all
CMVs operating in interstate or foreign commerce within the United
States are required to meet the same safety standards.
Currently subpart C of part 393 cross references FMVSS No. 105
(Hydraulic Brake Systems), FMVSS No. 106 (Brake Hoses), and FMVSS No.
121 (Air Brake Systems) as well as several other CMV-related FMVSSs.
The FHWA's cross references have the net effect of requiring that
vehicles operated by Canada- and Mexico-based motor carriers be
equipped with safety features/equipment that are compatible with the
NHTSA requirements irrespective of where the vehicle was originally
manufactured, or whether the vehicle was manufactured for sale or use
in the United States. Commercial motor vehicles that do not meet all of
the applicable requirements of part 393 cannot be operated in the
United States. As such, commercial motor vehicles operated by foreign-
based motor carriers are currently required by the FHWA to have, at a
minimum, brake systems that comply with the applicable provisions of
FMVSS Nos. 105, 106, and 121 in effect on the date of manufacture.
On September 6, 1995 (60 FR 46236), the FHWA published its final
rule on automatic brake adjusters and brake adjustment indicators. The
final rule requires motor carriers to maintain automatic brake
adjusters on hydraulic- braked CMVs manufactured on or after October
20, 1993, and air-braked CMVs manufactured on or after October 20,
1994, the effective dates of NHTSA's requirement for automatic brake
adjusters. Further, air braked vehicles that have exposed pushrods and
are manufactured on or after October 20, 1994, must have brake
adjustment indicators. The preamble to the final rule states:
These provisions will apply to all CMVs operated in the United
States, irrespective of the country where the CMV is based.
Canadian and Mexican vehicles manufactured on or after the
effective dates of the NHTSA rules will be required to conform to
this regulation.
Although the FHWA does not have data on the extent to which CMVs
manufactured for sale in Canada and Mexico comply with the current
brake- related FMVSSs and FMCSRs, it is
[[Page 36697]]
unlikely that there are technical reasons that would preclude
manufacturers of these vehicles from offering ABS as an option. As
previously mentioned, foreign-based motor carriers are currently
required to operate commercial motor vehicles that comply with all of
the applicable requirements of part 393 while in the United States.
The FHWA contacted the Truck Manufacturers Association (TMA) to
determine the availability of ABS on air braked vehicles sold in Canada
and Mexico. The TMA's membership includes the Ford Motor Company;
Freightliner; General Motors (GM); Mack Trucks, Inc. (Mack), Navistar
International Transportation Corporation (Navistar); PACCAR, Inc.
(Kenworth and Peterbilt); and, Volvo GM Heavy Truck Corporation
(Volvo).
The TMA indicated that five of the manufactures that sell medium
and heavy-duty trucks in Canada install ABS as standard equipment.
Another manufacturer offers ABS as optional equipment for the Canadian
market. With regard to the Mexican market, none of the TMA's members
installs ABS as standard equipment. Only two of the TMA's members offer
ABS as optional equipment. However, another member indicated it would
make ABS available on units manufactured in Mexico in the near future.
The FHWA also contacted Dina, a Mexican manufacturer of heavy
trucks, and determined that ABS is offered as optional equipment.
Based upon the information obtained from the TMA and Dina, the FHWA
believes that requiring Canadian and Mexican CMVs manufactured on or
after the effective dates of NHTSA's ABS requirements, is appropriate.
The FHWA notes that ABS is not yet commercially available for
hydraulically-braked medium and heavy vehicles in the United States,
Canada or Mexico. However, given the March 1, 1999, effective date of
the FMVSS No. 105 requirements for ABS, the FHWA believes these systems
will be commercially available in time for motor carriers to comply
with the FMCSRs.
The FHWA specifically requests comments from Canada and Mexico-
based motor carriers and original equipment manufacturers that sell
vehicles for the Canadian and Mexican markets.
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, but the FHWA may issue a
final rule 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 action is not a significant
regulatory action within the meaning of Executive Order 12866. No
serious inconsistency or interference with another agency's actions or
plans is likely to result, and it is unlikely that this regulatory
action will have an annual effect on the economy of $100 million or
more. The FHWA's regulation would only require maintenance of ABSs; the
NHTSA final rule published on March 10, 1995, is the regulation which
actually requires installation of ABSs. The data collected by NHTSA
indicates that the level of maintenance required to keep an ABS
functional would only increase incrementally and would not be
unreasonable relative to the safety benefits that would result from the
use of these systems. Therefore it is anticipated that the economic
impact of this proposal would be minimal.
The preamble to NHTSA's March 10, 1995, final rule included
estimates of the increased costs of operating heavy vehicles equipped
with ABS. Three categories of operating costs were examined: Lifetime
maintenance costs; lifetime fuel costs due to the additional weight of
the ABS; and lifetime revenue loss due to payload displacement. The
range of the increase in total lifetime operating costs related to
equipping vehicles with ABS is from $201.47 for single-unit trucks and
buses to $786.65 for truck tractors. The NHTSA indicated that the total
estimated increase in lifetime vehicle operating costs associated with
ABS for all commercial motor vehicles is $232 million. A copy of the
NHTSA's final economic assessment is included in FHWA Docket No. MC-94-
31.
In addition, the FHWA has determined that this action is not a
significant regulatory action under the Department of Transportation's
regulatory policies and procedures because it does not concern a matter
about which there is substantial public controversy, it will not have a
substantial effect on State and local governments, or initiate a
substantial regulatory program or change in policy.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities
and has determined that it would not have a significant economic impact
on a substantial number of small entities. The FHWA finds that this
rule would not significantly increase costs for motor carriers because
FHWA regulations only require maintenance of brake systems and the data
collected by the NHTSA shows that the presence of an ABS on a vehicle
would not substantially increase maintenance costs (less than one
percent for tractors and less than two percent for trailers) or
decrease vehicle operational availability.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rulemaking does not have sufficient Federalism implications
to warrant the preparation of a Federalism assessment. These new safety
requirements would not directly preempt any State law or regulation,
and no additional costs or burdens would be imposed on the States as a
result of this action. Furthermore, the State's ability to discharge
traditional State governmental functions would not be affected by this
rulemaking.
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
This action does not contain a collection of information
requirement for the purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3520.
National Environmental Policy Act
The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
the environment.
[[Page 36698]]
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 393
Highway safety, Motor carriers, Motor vehicle safety.
Issued on: July 8, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
49, Code of Federal Regulations, subchapter B, chapter III, as follows:
PART 393--[AMENDED]
1. The authority citation for part 393 continues to read as
follows:
Authority: Sec. 1041(b) of Pub. L. 102-240, 105 Stat. 1914, 1993
(1991), 49 U.S.C. 31136 and 31502; 49 CFR 1.48.
2. Section 393.5 is amended by adding the definition of antilock
brake system, in alphabetical order, to read as follows:
* * * * *
Antilock Brake System or ABS means a portion of a service brake
system that automatically controls the degree of rotational wheel slip
during braking by:
(1) Sensing the rate of angular rotation of the wheels;
(2) Transmitting signals regarding the rate of wheel angular
rotation to one or more controlling devices which interpret those
signals and generate responsive controlling output signals; and
(3) Transmitting those controlling signals to one or more
modulators which adjust brake actuating forces in response to those
signals.
* * * * *
3. In subpart C, Sec. 393.55 is added to read as follows:
Sec. 393.55 Antilock brake systems.
(a) Hydraulic brake systems. Each truck and bus manufactured on or
after March 1, 1999, and equipped with a hydraulic brake system, shall
be equipped with an antilock brake system that meets the requirements
of Federal Motor Vehicle Safety Standard (FMVSS) No. 105 (49 CFR
571.105, S5.5).
(b) ABS malfunction indicators for hydraulic braked vehicles. Each
hydraulic braked vehicle subject to the requirements of paragraph (a)
of this section shall be equipped with an ABS malfunction indicator
system that meets the requirements of FMVSS No. 105 (49 CFR 571.105,
S5.3).
(c) Air brake systems. (1) Each truck tractor manufactured on or
after March 1, 1997, shall be equipped with an antilock brake system
that meets the requirements of FMVSS No. 121 (49 CFR 571.121,
S5.1.6.1(b)).
(2) Each air braked commercial motor vehicle other than a truck
tractor, manufactured on or after March 1, 1998, shall be equipped with
an antilock brake system that meets the requirements of FMVSS No. 121
(49 CFR 571.121, S5.1.6.1(a) for trucks and buses, S5.2.3 for
semitrailers, converter dollies and full trailers).
(d) ABS malfunction circuits and signals for air braked vehicles.
(1) Each truck tractor manufactured on or after March 1, 1997, and each
single unit air braked vehicle manufactured on or after March 1, 1998,
shall be equipped with an electrical circuit that is capable of
signaling a malfunction that affects the generation or transmission of
response or control signals to the vehicle's antilock brake system (49
CFR 571.121, S5.1.6.2(a)).
(2) Each truck tractor manufactured on or after March 1, 2001, and
each single unit vehicle that is equipped to tow another air-braked
vehicle, shall be equipped with an electrical circuit that is capable
of transmitting a malfunction signal from the antilock brake system(s)
on the towed vehicle(s) to the trailer ABS malfunction lamp in the cab
of the towing vehicle, and shall have the means for connection of the
electrical circuit to the towed vehicle. The ABS malfunction circuit
and signal shall meet the requirements of FMVSS No. 121 (49 CFR
571.121, S5.1.6.2(b)).
(3) Each semitrailer, trailer converter dolly, and full trailer
manufactured on or after March 1, 2001, and subject to the requirements
of paragraph (b)(2) of this section, shall be equipped with an
electrical circuit that is capable of signaling a malfunction in the
trailer's antilock brake system, and shall have the means for
connection of this ABS malfunction circuit to the towing vehicle. In
addition, each trailer manufactured on or after March 1, 2001, that is
designed to tow another air-brake equipped trailer shall be capable of
transmitting a malfunction signal from the antilock brake system(s) of
the trailer(s) it tows to the vehicle in front of the trailer. The ABS
malfunction circuit and signal shall meet the requirements of FMVSS No.
121 (49 CFR 571.121, S5.2.3.2).
(e) Exterior ABS malfunction indicator lamps for trailers. Each
trailer (including a trailer converter dolly) manufactured on or after
March 1, 1998 and before March 1, 2009, shall be equipped with an ABS
malfunction indicator lamp which meets the requirements of FMVSS No.
121 (49 CFR 571.121, S5.2.3.3).
[FR Doc. 96-17785 Filed 7-11-96; 8:45 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 96-17783 Share Insurance and Appendix
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36663-36664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17783]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 61, No. 135 / Friday, July 12, 1996 /
Proposed Rules
[[Page 36663]]
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 745
Share Insurance and Appendix
AGENCY: National Credit Union Administration (NCUA).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The proposed rule will amend regulations on the payment of
share insurance and appeals to provide authority for the liquidating
agent to pay dividends earned or accrued, but not posted to share
accounts. Also, the proposed rule will amend those regulations to
reference other regulations on the construction of time limits when
computing time.
DATES: Comments must be postmarked or posted on the NCUA electronic
bulletin board by September 10, 1996.
ADDRESSES: Send comments to Becky Baker, Secretary of the Board,
National Credit Union Administration Board, 1775 Duke Street,
Alexandria, Virginia 22314-3428.
FOR FURTHER INFORMATION CONTACT:
Jerry L. Courson, Special Assistant to the President, National Credit
Union Administration, Asset Liquidation Management Center, 4807
Spicewood Springs Road, Suite 5100, Austin, Texas 78759 or telephone
(512) 795-0999 or Allan H. Meltzer, Associate General Counsel, National
Credit Union Administration, Office of General Counsel, 1775 Duke
Street, Alexandria, Virginia 22314-3428 or telephone (703) 518-6540.
SUPPLEMENTARY INFORMATION:
Request for Comments
The NCUA Board seeks comments on the proposed changes to Part 745
of the NCUA Rules and Regulations.
Background
Subpart B of Part 745 of the NCUA Rules and Regulations deals with
the payment of share insurance and appeals. Specifically, Section
745.200(b) provides that in determining the amount of share insurance,
no dividends shall be paid on shares if sufficient undivided and
current earnings are not available for such purpose. However, dividends
accrued and posted to share accounts for prior accounting periods are
considered as principal (regardless of earnings).
In a small number of liquidations, it has been necessary to
reconstruct and correct the credit union records. In these liquidation
cases, the reconstruction process disclosed situations where dividends
were posted to some member accounts and not posted to other member
accounts. Under the current regulation, to properly reconstruct these
accounts and the dividends that were miscalculated or omitted, the
liquidating agent obtained authority from the NCUA Board.
Since the current rule was adopted in 1990, only a small number of
the 352 credit unions placed into involuntary liquidation have involved
dividend issues. In most cases, the records are updated and dividends
are posted before liquidation. Based on the current volume, if all
cases involving unposted dividends were referred to the NCUA Board, the
workload would be excessive. However, the workload of the liquidating
agent would increase, because it would be necessary to audit or review
each member account twice, and the additional workload would result in
a delay in actual payment to the members.
The liquidation process would be more efficient if a rule is
adopted that permits recording unposted dividends. This option also
provides for a more equitable treatment of all members. The proposed
rule provides discretion for the liquidating agent to correct share
accounts by recording dividend payments that were not posted or were
incorrectly posted by credit union personnel due to fraud,
embezzlement, or accounting errors. Under the proposed rule, dividends
not earned in the normal course of business, would not be included in
the determination of insured shares. In addition, the proposed rule
provides flexibility in dealing with sufficient earnings. Under the
current regulation, dividend payments cannot be considered as principal
for insurance purposes if sufficient earnings were not available. The
proposed rule is silent on sufficient earnings, but a credit union's
earnings could be a factor used by the liquidating agent in determining
insured shares.
Under the proposed rule, decisions on unposted dividends can be
made without specific NCUA Board action.
In addition to amending the rule to deal with unposted dividends,
the proposed rule making also amends Section 745.200(d) to reference
Section 747.12(a) of the NCUA Rules and Regulations when computing
time. The current regulation references Section 747.119, and this
section no longer exists.
Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act requires NCUA to prepare an analysis
to describe the significant economic impact any proposed regulation may
have on a substantial number of small credit unions (primarily those
under $1 million in assets). This proposal deals with the payment of
share insurance and does not directly impact operating credit unions.
It does not add any additional requirements or burden. The proposal
could provide an additional level of confidence for the credit union
member. Accordingly, the NCUA Board has determined and certifies under
the authority granted in 5 U.S.C. 605(b) that the proposed rule, if
adopted, will not have a significant economic impact on a substantial
number of small credit unions and that a Regulatory Flexibility Act
analysis is not required.
Paperwork Reduction Act
The proposed rule does not impose any new paperwork requirements.
Executive Order 12612
The proposed changes to Section 745.200 will apply to both federal
credit unions and federally-insured, state chartered credit unions. The
NCUA Board, pursuant to Executive Order 12612, has determined that the
proposed amendment will not have substantial direct effect on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Further, the proposed rule will not
preempt provisions of state law or regulation.
[[Page 36664]]
List of Subjects in 12 CFR Part 745
Administrative practice and procedure, Bank deposit insurance,
Claims, Credit unions.
By the National Credit Union Administration Board on July 9,
1996.
Becky Baker,
Secretary of the Board.
Accordingly, NCUA proposes to amend its regulation as follows:
PART 745--SHARE INSURANCE AND APPENDIX
1. The authority citation for part 745 continues to read as
follows:
Authority: 12 U.S.C. 1766, 1781, 1789.
2. Section 745.200 is amended by revising paragraphs (b) and (d) to
read as follows:
Sec. 745.200 General.
* * * * *
(b) Amount of insurance. The amount of insurance on an insured
account shall be determined in accordance with the provisions of
subpart A of this part and the Federal Credit Union Act. For the
purpose of determining insurance coverage, dividends earned in the
ordinary course of business and posted to share accounts for any prior
accounting or dividend period shall be deemed to be principal under
this rule. Dividends earned or accrued in the ordinary course of
business, but not posted to share accounts, may be paid at the
discretion of the liquidating agent. In making such determination, the
liquidating agent will take into consideration whether the failure to
post dividends earned or accrued was due to the fraud, embezzlement or
accounting errors of credit union personnel. The liquidating agent may
require an accountholder to submit documentation supporting any claim
for unposted dividends not otherwise evidenced in the credit union
records. However, in no event will dividend amounts be considered as
principal for insurance purposes pursuant to this section if not
consistent with the amounts paid on similar classes of shares.
* * * * *
(d) Computing time. In computing any period of time prescribed by
this subpart, the provisions of Sec. 747.12(a) shall apply.
[FR Doc. 96-17783 Filed 7-11-96; 8:45 am]
BILLING CODE 7535-01-M
Complete official Federal Register PDF
FR Doc. 96-17750 Federal Motor Vehicle Safety Standards; Antilock Brake Systems for Light Vehicles
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36698-36702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17750]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 93-94; Notice 3]
RIN 2127-AE47
Federal Motor Vehicle Safety Standards; Antilock Brake Systems
for Light Vehicles
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Advance notice of proposed rulemaking (ANPRM); Deferral of
rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document defers a rulemaking proceeding in which the
agency is considering whether to require light vehicles (those with a
gross vehicle weight rating (GVWR) equal to or less than 10,000 lbs.)
to be equipped with antilock braking systems (ABS). This rulemaking
proceeding was mandated by the National Highway Traffic Safety
Administration Authorization Act of 1991, which directed the agency to
consider the need for any additional brake performance standards for
passenger cars, including antilock brake standards. The agency believes
it would be inappropriate at this time to require ABS for light
vehicles for the following reasons: Most studies that have analyzed the
accident involvement experiences of ABS-equipped light vehicles have
found mixed patterns, with a reduction in accidents in some crash modes
and an increase in accidents in other crash modes; even without a
Federal requirement, a significant majority of light vehicles will be
voluntarily equipped with ABS; and requiring ABS on those light
vehicles that will not be equipped with ABS would result in significant
costs that, on balance, cannot be justified at this time.
FOR FURTHER INFORMATION CONTACT:
For non-legal issues: Mr. Robert M. Clarke, Office of Crash
Avoidance, National Highway Traffic Safety Administration, 400 Seventh
Street, SW., Washington, D.C. 20590 (202) 366-5278.
[[Page 36699]]
For legal issues: Mr. Marvin L. Shaw, NCC-20, Rulemaking Division,
Office of Chief Counsel, National Highway Traffic Safety
Administration, 400 Seventh Street, SW., Washington, D.C. 20590 (202)
366-2992.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Advance Notice of Proposed Rulemaking and Comments to that
Notice
B. NHTSA Evaluation of the Performance of Light Vehicles
Equipped with ABS
C. Other Studies about the Effectiveness of Light Vehicle ABS
II. NHTSA's Decision to Defer Rulemaking
A. Studies Evaluating the Accident Involvement of Light Vehicle
ABS
B. Market Trends
C. Cost Implications
I. Background
A. Advance Notice of Proposed Rulemaking and Comments to That Notice
This rulemaking proceeding to consider the need for any additional
brake performance standards for passenger cars, including antilock
brake standards, was mandated by the National Highway Traffic Safety
Administration Authorization Act of 1991 (Public Law 102-240, December
18, 1991). On January 4, 1994, the National Highway Traffic Safety
Administration (NHTSA) issued an advance notice of proposed rulemaking
(ANPRM), soliciting comments about whether rulemaking was warranted to
require that all light vehicles (i.e., those with a gross vehicle
weight rating (GVWR) of 10,000 lbs. or less) be equipped with antilock
braking systems (ABS) (59 FR 281). The ANPRM also posed a number of
questions relative to the regulatory approaches that might be employed
if requirements were imposed; the types of performance tests that might
be used; varieties of ABSs that might be appropriate; and regulatory
implementation strategies and schedules that might be employed if
requirements were established.
NHTSA received over 140 comments in response to the docket, the
majority of which were from private citizens relating their experiences
with ABS-equipped light vehicles. Other commenters included vehicle
manufacturers (American Honda, BMW, Chrysler, Ford, General Motors,
Mazda, Mitsubishi, Nissan, Porche, Subaru of America, Toyota, and
Volkswagen) and brake manufacturers (AlliedSignal, ITT Teves of Germany
(ITT Teves), ITT Automotive, and ABS Tech Sciences). Other
organizations that commented included Advocates for Highway and Auto
Safety (Advocates), the American Automobile Association (AAA), the
Insurance Institute for Highway Safety (IIHS), the National School
Transportation Association (NSTA), and the American Coalition for
Traffic Safety.
Commenters expressed differing opinions about whether all light
vehicles should be equipped with ABS. Toyota, ITT Teves, AlliedSignal,
AAA, the NSTA, Edge Diagnosis Systems, and approximately 35 percent of
the private citizen respondents stated that light vehicles should be
required to be equipped with ABS. Nissan, Honda, Chrysler, Mitsubishi,
Ford, Subaru, Volkswagen, Mazda, and IIHS, and approximately 65 percent
of the private citizen respondents believed that equipping light
vehicles with ABS should remain an optional choice for consumers. GM
and BMW stated that they were not opposed to a requirement for ABS but
indicated that additional information should be obtained before the
agency made such a decision.
Commenters supporting a requirement that light vehicles be equipped
with ABS offered the following reasons:
Equipping light vehicles with ABS would increase vehicle
safety and enhance correct brake usage.
Equipping light vehicles with ABS would improve lateral
stability and steerability, and enhance braking performance.
A requirement would eliminate an indefinite transition
period for light vehicles to ABS. They believed that a protracted
transition period would create the possibility of increased risks to
drivers, especially for those who operate light vehicles with and
without ABS brake systems.
Additionally, 31 private citizens commented about their positive
experience with ABS-equipped light vehicles, such as near-miss crashes.
Commenters opposing a requirement that light vehicles be equipped
with ABS offered the following reasons:
Consumer demand for advanced safety systems including ABS
is sufficient to encourage manufacturers to offer the systems.
Equipping light vehicles with ABS should not be required
until data conclusively demonstrate that ABS-equipped light vehicles
are involved in fewer and less severe crashes.
The costs associated with requiring that all light
vehicles be equipped with ABS would increase the costs associated with
purchasing new light vehicles. This added cost might discourage
potential buyers of new light vehicles from purchasing other, optional
improved safety features of new vehicles.
Not all consumers need their light vehicles to be equipped
with ABS, based on either their driving habits or the types of roads
and/or road conditions they typically encounter.
Twenty-four private citizens submitted comments citing unfavorable
experiences with their ABS-equipped light vehicles. These incidents
typically involved braking on surfaces with low coefficients of
friction. It appears that the drivers incorrectly assumed the ABS would
help them stop in shorter distances. These commenters cited additional
reasons why they think ABS on light vehicles should remain optional,
including concerns that:
A requirement would add significant costs, thereby
lowering the affordability of less expensive vehicles. This would
create an incentive for consumers to keep their older, potentially less
safe, vehicles longer.
Insurance industry studies showing no reductions in the
number of insurance claims or costs per claim for ABS-equipped light
vehicles, compared to non-ABS-equipped light vehicles, do not support a
requirement for ABS on such vehicles.
Repairs of ABS on light vehicles could be expensive which
could result in some consumers deciding not to repair these systems.
There are too few instances where equipping a light
vehicle with ABS would be useful.
The brake pedal pulsation and system noise, evident when
some systems activate, could frighten or distract drivers.
Average drivers lack the skill to capitalize on the main
benefit of ABS, the ability to execute aggressive crash-avoidance
steering maneuvers.
B. NHTSA Evaluations of the Performance of Light Vehicles Equipped With
ABS
The January 1994 ANPRM referenced test track evaluations of ABS-
equipped light vehicles,1 including a December 1991 report which
describes tests conducted on ten light vehicles to evaluate the
improvement in braking performance and vehicle stability and control
resulting from ABS. The test program's purpose was to show the degree
to which an ABS improves a light vehicle's braking performance. Among
the principal findings in the
[[Page 36700]]
report were that each ABS, and especially all-wheel systems, improved
the light vehicle's lateral stability during panic braking, and that
the all-wheel systems shortened stopping distances on most hard paved
surfaces, with improvements of between 25 to 50 percent on wet
surfaces.
---------------------------------------------------------------------------
\1\ Hiltner, Arehart, and Radlinski, ``Light Vehicle ABS
Performance Evaluation,'' DOT HS 807 813, December 1991; and ``Light
Vehicle ABS Performance Evaluation--Phase II,'' DOT HS 807 924, May
1992.
---------------------------------------------------------------------------
A May 1992 report described tests conducted on eight light vehicles
to evaluate how the ABS influenced vehicle stopping distance and
lateral stability and control on various surfaces. Among the report's
principle findings were that seven of the eight vehicles were under
complete directional control during the tests with ABS ``on,'' and that
ABSs improved stopping performance on all surfaces, except for stops on
dry gravel surfaces.
In 1994, NHTSA issued a third report evaluating ABS
performance.2 On February 9, 1995, NHTSA published a notice
requesting comments about this report. (60 FR 7814). The report
evaluated the accident rates of ABS-equipped cars currently on the road
and compared them to the accident rates of similar cars without ABS.
The principal findings of and conclusions of this report were that (1)
ABS reduced the involvements of passenger cars in multi-vehicle crashes
on wet roads by 14 percent and reduced those involving fatalities by 24
percent, (2) ABS had little effect on multi-vehicle crashes on dry
roads, (3) ABS reduced the risk of fatal collisions with pedestrians by
27 percent in ABS equipped passenger cars, (4) run-off-road crashes
(e.g., rollovers, side and front impacts with fixed objects) increased
by 19 percent for nonfatal crashes and 28 percent for fatal crashes,
and (5) the overall, net effect of light vehicle ABS on both fatal and
nonfatal accidents was close to zero.
---------------------------------------------------------------------------
\2\ Kahane, C. Preliminary Evaluation of the Effectiveness of
Antilock Brake Systems for Passenger Cars (DOT Rep. No HS 808 206).
Washington, DC: National Highway Traffic Safety Administration.
(1994)
---------------------------------------------------------------------------
NHTSA received comments about this study from Volkswagen, the
American Automobile Manufactures Association (AAMA), the National
Automobile Dealers Association (NADA), General Motors, and Advocates.
The commenters generally believed that the NHTSA study should not be
considered definitive until additional studies and analysis have been
conducted. Volkswagen, NADA, GM, Toyota, and Advocates supported
NHTSA's efforts to conduct additional research and to educate the
driving public on the advantages and limitations of ABS. GM, Toyota,
and NADA agreed with several hypotheses presented by NHTSA to explain
why ABS, which clearly improves vehicle performance in controlled
maneuvers, appeared to have minimal effect in reducing overall crash
rates. In contrast, Advocates disagreed with the agency's risk
compensation and driver error hypotheses as possible explanations for
why ABS-equipped cars have more run-off-the-road crashes. Advocates
also stated that these findings indicate that vehicle platforms need to
be redesigned to prevent rollover crashes, since ABS often will not
prevent such crashes.
C. Other Studies About the Effectiveness of Light Vehicle ABS
In addition to NHTSA's efforts, several other organizations have
evaluated the effectiveness of light vehicle ABS. Studies conducted by
the Insurance Institute for Highway Safety (IIHS), which compared
insurance claims for 1991 and 1992 model year cars with and without
ABS, showed no reduction in claims for cars equipped with ABS.3
Another study 4 based its conclusions on the same set of data
collected by HLDI, yielding similar findings.
---------------------------------------------------------------------------
\3\ Highway Loss Data Institute. Collision and Property Damage
Liability Losses of Passenger Cars With and Without Antilock Brakes.
(Research Report HLDI A41). Arlington, VA (1994, January).
4 Insurance Institute for Highway Safety. (1994,
January). ``Antilocks May Not Make the Difference That Many
Expected.; What Antilocks Can Do, What They Cannot Do.'' Status
Report, 29(2), 1-5, Arlington, VA
---------------------------------------------------------------------------
Another study 5 by Evans demonstrated that, although benefits
associated with ABS-equipped light vehicles may not be seen in general,
ABS does have a positive effect in reducing certain types of accidents,
while possibly being associated with increases in others.
---------------------------------------------------------------------------
\5\ Evans, L. (1995). ABS and Relative Crash Risk Under
Different Roadway, Weather, and Other Conditions. SAE Paper 950353.
---------------------------------------------------------------------------
A recent study by Lau and Padmanaban (1996), reported more
favorable results; namely, that ABS-equipped light vehicles were
experiencing lower overall crash involvement rates.6 However, the
study reported no measurable difference in the rate of involvements in
fatal crashes between light vehicles with and without ABS. The agency
notes that the difference in the finding relative to overall crash
involvement rates, compared to other studies that found no significant
change in crash involvement rates, is primarily the result of different
assumptions about which populations of vehicles were appropriate to
include in the comparison.
---------------------------------------------------------------------------
\6\ Lau, E., and Padmanaban, J., Accident Experience of
Passenger Vehicles with Four-Wheel Antilock Braking Systems, Failure
Analysis Associates, Inc., Menlo Park, CA, January 1996.
---------------------------------------------------------------------------
II. NHTSA's Decision to Defer Rulemaking
After reviewing the available information, NHTSA has decided to
defer indefinitely its decision about whether to require equipping
light vehicles with antilock braking systems until a later date. The
agency believes it would be inappropriate to currently mandate such a
requirement for the following reasons: (1) most studies that have
analyzed the accident involvement experiences of ABS-equipped light
vehicles have found mixed patterns, with a reduction in accidents in
some crash modes but an increase in accidents in other crash modes, (2)
even without a Federal requirement, a significant majority of light
vehicles will be voluntarily equipped with ABS, (3) and requiring ABS
on those light vehicles that will not be equipped with ABS would result
in significant costs that, on balance, cannot be justified at this
time.
In a separate rulemaking, NHTSA decided to require that medium and
heavy vehicles be equipped with ABS (60 FR 13216, March 10, 1995). The
agency emphasizes that its decision not to require that light vehicles
be equipped with ABS is applicable only to light vehicles and not to
medium and heavy vehicles, and therefore should not be interpreted as
being inconsistent with this earlier decision. The two rulemakings are
readily distinguishable. The studies discussed in today's notice only
studied the accident involvement patterns of ABS on light vehicles;
they did not evaluate the accident involvement patterns of ABS on
medium or heavy vehicles. Tractor trailer combinations are more prone
to loss of stability and control including jackknifing, given that they
have an articulation point. ABS provides more potential benefits for
vehicles, such as medium and heavy ones, which have a greater disparity
between their lightly loaded and fully loaded weights. An out-of-
control medium or heavy vehicle (that can weigh 10,000 to 80,000
pounds) is more dangerous in collisions with other vehicles than an
out-of-control light vehicle.
A. Studies Evaluating the Accident Involvement of Light Vehicle ABS
NHTSA believes that the increased involvements in some crash modes
with ABS equipped light vehicles, especially single vehicle run-off-
road crashes, may be due to a lack of driver knowledge rather than the
performance attributes of ABS. This is consistent with track test
[[Page 36701]]
results, conducted by professional drivers, indicating that ABS-
equipped light vehicles have better stability and control than non-ABS
equipped light vehicles. NHTSA believes that the ability of an ABS-
equipped light vehicle to reduce crashes is linked closely to a
driver's ability to use its performance capabilities. The agency plans
to conduct further analyses to evaluate how driver behavior and
performance affect how well light vehicle ABS reduces crashes.
One possible explanation for the increase in single vehicle run-
off-road accidents may be due to driver steering behavior rather than
the functioning of a light vehicle's ABS.
NHTSA notes that typical panic steering in non-ABS light vehicles
is often characterized by a three-stage maneuver: (1) a large steering
input to avoid a collision with the obstacle; (2) a reverse steering
input to stop lateral deviation and correct for vehicle heading, and 3)
an attempt to regain vehicle control by returning to an appropriate
lane.7 ABS-equipped light vehicles allow drivers the opportunity
to maneuver around an obstacle, while keeping the vehicle under
control, but having such capability does not guarantee a potential
crash will be avoided.
---------------------------------------------------------------------------
\7\ Weirwille, W.W., ``Driver Steering Performance,'' in
Automotive Engineering and Litigation, Volume 1, G.A. Peters and
B.J. Peters, Eds., New York, Garland Publishing Co., 1984
---------------------------------------------------------------------------
NHTSA has considered certain hypotheses to explain why some drivers
of ABS-equipped light vehicles may leave the road: (1) Some drivers are
unaware of how ABS functions, (2) some drivers do not know how to react
properly to crash threats, and (3) some drivers may drive more
aggressively with ABS.
NHTSA believes that drivers of ABS-equipped light vehicles may
``pump'' their brake pedals in crash-imminent situations, thereby
defeating the purpose of the ABS. Also, when activated, some ABS
systems emit a chattering noise or cause the brake pedal to pulsate,
which could confuse drivers into thinking their brakes have failed.
Other drivers have reported their belief that the ABS-equipped light
vehicle is stopping poorly, because tires on such vehicles do not
squeal.
Some drivers may be oversteering their vehicles in an attempt to
avoid a crash threat, thereby causing the vehicles to lose control and
spin out. Other drivers may purposely steer off the road in crash-
imminent situations, either because they incorrectly see no other
option or because they decide this is their best option. Further, light
vehicle ABS performance in situations where drivers make evasive
maneuvers on loose surfaces such as gravel or grass could exacerbate
drivers' lack of skill when executing extreme braking and steering
maneuvers.
Some drivers may be driving more aggressively because they think
that their ABS equipped light vehicle can stop better. This has been
termed ``risk compensation'' or ``risk homeostasis.''
NHTSA is continuing its efforts to review crash data sets,
individual crash case histories, and other information to evaluate
these hypotheses. Also, the agency has established a sub-group of its
motor vehicle safety research advisory committee to specifically
address this problem. Meanwhile, conclusions regarding the
effectiveness of ABS-equipped light vehicles which are based on the
analysis of currently available accident databases should be viewed
with caution. Given increased driver knowledge and experience with ABS-
equipped light vehicles, the agency believes that the number of crashes
involving such vehicles may decline. In addition, more precise crash
database analysis techniques may shed additional light on these
questions.
B. Market Trends
As for the marketplace, NHTSA notes that there is a strong trend
among vehicle manufacturers to voluntarily equip light vehicles with
ABS in response to significant consumer demand for this technology.
As the data in Table 1 indicate, the percentage of new passenger
cars equipped with four-wheel antilock systems has grown from 3.7
percent in 1989 to 57 percent in 1995. Most manufacturers have publicly
indicated plans to offer ABS as either standard or optional equipment
on nearly all of their passenger car lines within the next three years.
TABLE 1.--Percentage of Passenger Cars Sold in the U.S., Equipped with ABS \1\
----------------------------------------------------------------------------------------------------------------
Domestic cars % Import cars %
4WABS 4WABS Total cars % ABS
----------------------------------------------------------------------------------------------------------------
1989................................................... 3.7 13.6 6.5
1990................................................... 7.6 21.4 11.1
1991................................................... 14.1 26.0 17.1
1992................................................... 32.2 32.2 32.2
1993................................................... 42.3 37.0 41.2
1994................................................... 57.3 47.6 55.5
1995................................................... 57.1 ................. .................
----------------------------------------------------------------------------------------------------------------
\1\ Source: Wards Automotive, 1990-1995.
Similar data for light trucks, as shown in Table 2, indicate even
stronger trends in this regard, with ABS installation rates growing to
84.3 percent by 1994.
Table 2.--Percentage of Light Trucks Sold in the U.S., Equipped With ABS \1\
----------------------------------------------------------------------------------------------------------------
Import truck % Domestic truck % Domestic truck %
Model year ABS RWAL \2\ 4WABS Total truck % ABS
----------------------------------------------------------------------------------------------------------------
1989................................ -- 59.5 -- --
1990................................ 10.2 77.3 2.1 71.4
1991................................ 41.5 77.1 6.2 77.8
1992................................ 51.6 71.5 11.4 80.1
1993................................ 67.9 52.2 31.9 83.0
1994................................ 66.6 53.0 32.4 84.3
[[Page 36702]]
1995................................ ................. 34.7 56.2
----------------------------------------------------------------------------------------------------------------
\1\ Source: Wards Automotive, 1990-1995.
\2\ RWAL=Rear Wheel Antilock System.
Based on this information, NHTSA continues to believe that a
significant majority of the light vehicle fleet will be equipped with
ABS, regardless of whether there is a Federal mandate for such systems.
As a result, light vehicles will benefit from the stability and control
characteristics obtained by equipping such vehicles with ABS.
Accordingly, the agency's decision not to require light vehicles to be
equipped with ABS is based in part on the wide scale voluntary
installation of ABS.
C. Cost Implications
In the January 1994 ANPRM, NHTSA estimated that requiring all light
vehicles to be equipped with ABS would cost approximately $1.04 billion
annually to equip those vehicles that would not voluntarily be
equipped. That notice stated that this cost consists of ABS hardware
costs of $920 million, installation costs of about $80 million, and
increased fuel costs of about $40 million due to a small increase in
vehicle weight. The average retail price of an ABS system to the
consumer was estimated to be $450. This price was based on a cost study
of seven ABS systems entitled ``Evaluation of Costs of Antilock Brake
Systems'' and a markup factor of 1.51. The agency's cost estimate
assumed that all-wheel ABS would be required on all light vehicles. It
projected that all-wheel ABS would be voluntarily installed as standard
equipment in 85 percent of model year 1999 passenger cars. The
remaining 15 percent, or about 1.4 million vehicles, would be equipped
only as a result of this regulatory requirement. However, since the ABS
installation rate for 1995 model year domestic passenger vehicle cars,
as reported in Table 1, was little different from 1994, it appears that
this projected 85 percent voluntary installation rate by 1999 could be
somewhat optimistic. A voluntary installation rate of possibly as low
as 70 percent by 1999 could occur, in which case the remaining 30
percent, or about 2.8 million passenger cars, would be equipped only if
there were a regulatory requirement. Such a higher involuntary ABS
installation rate would increase the estimated annual cost of a
requirement for passenger cars from $710 million to $1,420 million. If
this were to occur, the estimated annual cost for all light vehicles
would increase to $1.75 billion.
The cost estimate also projected that all light trucks would be
voluntarily equipped with ABS by model year 1999/2000, 75 percent of
them having all-wheel systems. Thus, an additional 25 percent of new
light trucks or about 1.5 million vehicles, would be involuntarily
equipped with all-wheel ABS if the agency issued a final rule requiring
this. In this case, all- wheel ABS hardware and installation costs
would be about $200 more than those for rear-wheel systems.
NHTSA believes that the significant costs associated with
manufacturers having to equip approximately 4.3 million additional
vehicles with all-wheel ABS further justifies the agency's decision not
to require light vehicles to be equipped with all-wheel ABS at this
time. The studies discussed above do not support such a Federal
requirement at this time. NHTSA emphasizes that the costs and benefits
associated with light vehicle ABS contrasts sharply with the analyses
the agency conducted for medium and heavy ABS, which determined that
ABS was highly beneficial for such vehicles.
For the reasons set forth above, NHTSA has decided to defer this
rulemaking action indefinitely.
Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166;
delegation of authority at 49 CFR 1.50 and 501.8.
Issued on: July 5, 1996.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 96-17750 Filed 7-11-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-17741 Airworthiness Directives; Airbus Model A310 and A300-600 Series Airplanes
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36664-36667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17741]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 94-NM-222-AD]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A310 and A300-600 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Supplemental notice of proposed rulemaking; reopening of
comment period.
-----------------------------------------------------------------------
SUMMARY: This document revises an earlier proposed airworthiness
directive (AD), applicable to certain Airbus Model A310 and A300-600
series airplanes, that would have required repetitive Tap Test
inspections to detect debonding of the elevator skins, and corrective
actions, if necessary. That proposal was prompted by a report that a
debonded area of the upper skin of an elevator had been discovered
during a visual inspection. This action revises the proposed rule by
replacing the Tap Test inspections with inspections using a
thermographic technique. This action also provides for replacement of
the elevators with new or modified elevators, which, if accomplished,
terminates the requirements of the AD. The actions specified by this
proposed AD are intended to prevent the presence of water in the
elevator, which could cause debonding of the elevator skins and,
consequently, could adversely affect the structural integrity of the
elevator.
DATES: Comments must be received by August 14, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 94-NM-222-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056. Comments may be inspected at this
location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except
Federal holidays.
The service information referenced in the proposed rule may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France. This information may be examined at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Charles Huber, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2589; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 94-NM-222-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 94-NM-222-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
A proposal to amend part 39 of the Federal Aviation Regulations (14
CFR part 39) to add an airworthiness directive (AD), applicable to
certain Airbus Model A310 and A300-600 series airplanes, was published
as a notice of proposed rulemaking (NPRM) in the Federal Register on
February 8, 1995 (60 FR 7485). That NPRM would have required repetitive
Tap Test inspections to detect debonding of the elevator skins, and
corrective actions, if necessary. Additionally, that NPRM would have
required repetitive thermographic inspections of the elevator to detect
trapped water if certain amounts of debonding are detected. That NPRM
was prompted by
[[Page 36665]]
a report that a debonded area of the upper skin of an elevator had been
discovered during a visual inspection. That condition, if not
corrected, could result in the presence of water in the elevator, which
could cause debonding of the elevator skins and, consequently, could
adversely affect the structural integrity of the elevator.
Actions Since Issuance of Previous Proposal
Since the issuance of that NPRM, Airbus has issued Revision 1 of
Service Bulletins A310-55-2016 (for Model A310 series airplanes) and
A300-55-6014 (for Model A300-600 series airplanes), both dated August
8, 1995. The original issues of these service bulletins were cited in
the NPRM as the appropriate sources of service information for
accomplishment of repetitive thermographic inspections to detect water
in the elevator, and protection and repair of debonded areas of the
elevator. Revision 1 of the service bulletins is essentially the same
as the original issues, however, Revision 1 specifies an increased
allowable cosmetic repair area and introduces new repair criteria.
Additionally, Revision 1 provides a threshold and repeat intervals for
the thermographic inspections based on the specific types of elevators
that are installed.
The Direction Generale de l'Aviation Civile (DGAC), which is the
airworthiness authority for France, classified these service bulletins
as mandatory and issued French airworthiness directive (CN) 95-206-
189(B), dated October 25, 1995, in order to assure the continued
airworthiness of these airplanes in France. That French CN supersedes
the previously-issued French CN 94-184-157(B), dated August 17, 1994.
The new French CN removes a previous requirement for repetitive Tap
Test inspections and, instead, it requires thermographic inspections to
detect water trapped in the elevator. In addition, the new French CN
indicates that it applies to Model A310 and A300-600 series airplanes
that are equipped with certain carbon fiber elevators on which Airbus
Modifications 10489 and 10533 have not been accomplished.
Additionally, since the issuance of the NPRM, Airbus also has
issued Service Bulletins A310-55-2019 (for Model A310 series airplanes)
and A300-55-6016 (for Model A300-600 series airplanes), both Revision
1, both dated December 18, 1995. These service bulletins describe
procedures for replacement of existing elevators with new or modified
elevators. Installation of the new or modified elevators will prevent
water ingress by adding a second external layer of adhesive and using a
different type of Tedlar film. Such installation, if accomplished, will
eliminate the need for the repetitive thermographic inspections.
FAA's Conclusions
The FAA has examined the findings of the DGAC and has reviewed the
revised service information. The FAA finds that inspections using
thermographic techniques are a more reliable method of detecting water
trapped in the elevators. Therefore, the FAA has determined that the
NPRM must be revised to remove the requirement for repetitive Tap Test
inspections and to require, instead, the accomplishment of repetitive
thermographic inspections in accordance with the latest service
bulletin revisions.
Additionally, the FAA finds that the NPRM must be revised to
specify that the inspection threshold and repetitive inspection
intervals are based on the specific types of elevators that are
installed.
The FAA also finds that the NPRM must be revised to provide for
replacement of the elevators with new or modified elevators, which, if
accomplished, would terminate the repetitive thermographic inspections.
In addition, the applicability of the NPRM has been revised to
coincide with the applicability of French CN 95-206-189(B).
Since these changes expand the scope of the originally proposed
rule, the FAA has determined that it is necessary to reopen the comment
period to provide additional opportunity for public comment.
Type Certification of Affected Airplanes
These airplane models are manufactured in France and are type
certificated for operation in the United States under the provisions of
section 221.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. and
Disposition of Comments to the NPRM
Interested persons were afforded an opportunity to respond to the
NPRM. Due consideration has been given to pertinent comments that were
submitted, as described below.
Request to Require Pulse-Echo Ultrasound Inspections
One commenter requests that the proposed Tap Tests, be replaced
with pulse-echo ultrasound (A-scan) inspections. The commenter states
that the pulse-echo ultrasound inspection is much more accurate than a
Tap Test.
The FAA concurs partially. The FAA acknowledges that more accurate
inspections for debonding may exist; however, the FAA does not agree
that pulse-echo ultrasound inspections are the type of inspections that
should be required in this case. In developing this AD, the FAA
considered the fact that pulse-echo ultrasound equipment and procedures
are not readily available to all operators. Additionally, the FAA
considered the accuracy of thermographic inspections, as well as the
accessibility of thermographic inspections to all operators. In
consideration of these items, the FAA finds that thermographic
inspections are most appropriate to address the unsafe condition.
However, under the provisions of paragraph (f) of the final rule, the
FAA may approve alternative methods of compliance with this AD if data
are submitted to substantiate that such a method would provide an
acceptable level of safety.
Request to Update Cost Impact Information
One commenter requests that the estimated number of affected U.S.-
registered airplanes specified in the cost impact information of the
proposed rule be revised from 15 to 35, since that is the number of
Model A300-600 series airplanes in its fleet.
The FAA concurs and has revised the cost impact information, below,
to reflect this change.
Cost Impact
There are approximately 137 Model A310 and A300-600 series
airplanes of the affected design in the worldwide fleet. The FAA
estimates that 35 airplanes of U.S. registry would be affected by this
proposed AD, that it would take approximately 34 work hours per
airplane to accomplish the proposed actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the proposed AD on U.S. operators is estimated to be $71,400, or $2,040
per airplane, per inspection cycle.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the proposed requirements of
this AD action, and that no operator would accomplish those actions in
the future if this AD were not adopted.
Should an operator elect to accomplish the optional replacement of
the elevators, it would take approximately 14 work hours per airplane
to accomplish the replacement, at an average labor rate of $60 per work
[[Page 36666]]
hour. The manufacturer would provide the replacement parts at no cost
to the operator. Based on these figures, the cost impact of the
optional replacement action is estimated to be $840 per airplane.
Regulatory Impact
The regulations proposed herein would not have 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. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Airbus: Docket 94-NM-222-AD.
Applicability: Model A310 and A300-600 series airplanes equipped
with carbon fiber elevators having part number (P/N) A5527605500000
(left-hand side) and P/N A5527605600000 (right-hand side), on which
Airbus Modifications 10489 and 10533 have not been accomplished;
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (f) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent the presence of water in the elevator, which could
cause debonding of the elevator skins and, consequently, could
affect the structural integrity of the elevator, accomplish the
following:
(a) Perform a thermographic inspection to detect any water that
is trapped within the elevator structure, in accordance with either
Airbus Service Bulletin A310-55-2016, Revision 1, (for Model A310
series airplanes); or Airbus Service Bulletin A300-55-6014, Revision
1, (for Model A300-600 series airplanes), both dated August 8, 1995,
as applicable. Perform the inspection at the time specified in
paragraph (a)(1) or (a)(2) of this AD, as applicable.
(1) For airplanes on which CARCOM elevators are installed:
Perform the inspection at the later of the times specified in
paragraphs (a)(1)(i) and (a)(1)(ii) of this AD.
(i) Prior to the accumulation of 4,500 total landings on the
elevator, or within 5 years after the first landing on the elevator,
whichever occurs later; or
(ii) Within 3 months after the effective date of this AD.
(2) For airplanes on which CASA elevators are installed: Perform
the inspection at the later of the times specified in paragraphs
(a)(2)(i) and (a)(2)(ii) of this AD.
(i) Prior to the accumulation of 5,000 total landings on the
elevator, or within 6 years after the first landing on the elevator,
whichever occurs later.
(ii) Within 3 months after the effective date of this AD.
(b) If no water is detected, repeat the thermographic inspection
required by paragraph (a) of this AD thereafter at the time
specified in paragraph (b)(1) or (b)(2) of this AD, as applicable.
(1) For airplanes on which CARCOM elevators are installed:
Repeat the inspection at intervals not to exceed 4,500 landings or 5
years, whichever occurs first;
(2) For airplanes on which CASA elevators are installed: Repeat
the inspection at intervals not to exceed 5,000 landings or 6 years,
whichever occurs first.
(c) If any water is detected in the elevator, and the area is
within the limits specified in the Accomplishment Instructions of
either Airbus Service Bulletin A310-55-2016, Revision 1, (for Model
A310 series airplanes), or A300-55-6016 (for Model A300-600 series
airplanes), both Revision 1, both dated August 8, 1995, as
applicable: Prior to further flight, protect and/or repair the
elevator in accordance with the applicable service bulletin.
Thereafter, repeat the thermographic inspections required by
paragraph (b) of this AD at the times specified in the
Accomplishment Instructions of the applicable service bulletin until
the replacement of the elevator is accomplished as specified in
paragraph (e) of this AD.
(d) If any water is detected in the elevator that exceeds the
limits specified by Airbus Service Bulletin A310-55-2016 (for Model
A310 series airplanes), or Airbus Service Bulletin A300-55-6014 (for
Model A300-600 series airplanes), both Revision 1, and both dated
August 8, 1995, as applicable: Accomplish the requirements of either
(d)(1) or (d)(2) of this AD, as applicable.
(1) If any damage is detected that is less than or equal to
60,000 square millimeters or 93 square inches, prior to further
flight, protect or repair and perform repetitive inspections in
accordance with the applicable service bulletin.
(2) If any damage is detected that is more than 60,001 square
millimeters or 93 square inches, prior to further flight, perform
the requirements of either paragraph (d)(2)(i) or (d)(2)(ii) of this
AD.
(i) If the damage is within the limits of the Structural Repair
Manual (SRM) (Ref. SRM 55-20-00), accomplish the repair in
accordance with the SRM; or
(ii) Replace the elevator in accordance with Airbus Service
Bulletin A310-55-2019 (for Model A310 series airplanes), or A300-55-
6016 (for Model A300-600 series airplanes), both dated December 18,
1995. No further action is required by this AD.
(e) Replacement of the elevator in accordance with either Airbus
Service Bulletin A310-55-2019 (for Model A310 series airplanes), or
A300-55-6016 (for Model A300-600 series airplanes), both dated
December 18, 1995, as applicable, constitutes terminating action for
the requirements of this AD.
(f) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(g) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
[[Page 36667]]
Issued in Renton, Washington, on July 8, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service. -
[FR Doc. 96-17741 Filed 7-11-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-17740 Airworthiness Directives; Short Brothers Model SD3-60 SHERPA Series Airplanes
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36667-36669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17740]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-122-AD]
RIN 2120-AA64
Airworthiness Directives; Short Brothers Model SD3-60 SHERPA
Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to all Short Brothers Model SD3-60
SHERPA series airplanes. This proposal would require revising the
Airplane Flight Manual (AFM) to provide the flight crew with
recognition cues for, and procedures for exiting from, severe icing
conditions, and to limit or prohibit the use of various flight control
devices. This proposal is prompted by results of a review of the
requirements for certification of the airplane in icing conditions, new
information on the icing environment, and icing data provided currently
to the flight crews. The actions specified by the proposed AD are
intended to minimize the potential hazards associated with operating
the airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions.
DATES: Comments must be received by August 29, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-122-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056. Comments may be inspected at this
location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except
Federal holidays.
This information may be examined at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington.
FOR FURTHER INFORMATION CONTACT: Greg Dunn, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2799; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-122-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 96-NM-122-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
On April 24, 1996, the FAA issued 18 AD's (see below for a listing
of all 18 AD's) to require revising the FAA-approved Airplane Flight
Manual (AFM) to provide the flight crew with recognition cues for, and
procedures for exiting from, severe icing conditions, and to limit or
prohibit the use of various flight control devices. These AD's were
published in the Federal Register on May 7, 1996:
----------------------------------------------------------------------------------------------------------------
Amendment
Manufacturer/airplane model AD No. No. Federal Register citation
----------------------------------------------------------------------------------------------------------------
de Havilland DHC-6 Series...................... 96-09-11 39-9587 61 FR 20616
EMBRAER EMB-110P1/EMB-110P2.................... 96-09-12 39-9588 61 FR 20636
Beech 99/200/1900 Series....................... 96-09-13 39-9589 61 FR 20638
Dornier 228 Series............................. 96-09-14 39-9590 61 FR 20639
Cessna 208/208B................................ 96-09-15 39-9591 61 FR 20641
Fairchild Aircraft SA226/SA227 Series.......... 96-09-16 39-9592 61 FR 20643
Jetstream 3101/3201............................ 96-09-17 39-9593 61 FR 20644
Jetstream BAe ATP.............................. 96-09-18 39-9594 61 FR 20668
Jetstream 4101................................. 96-09-19 39-9595 61 FR 20669
British Aerospace HS 748 Series................ 96-09-20 39-9596 61 FR 20671
Saab SF340A/SAAB 340B/SAAB 2000 Series......... 96-09-21 39-9597 61 FR 20672
CASA C-212/CN-235 Series....................... 96-09-22 39-9598 61 FR 20674
Dornier 328-100 Series......................... 96-09-23 39-9599 61 FR 20676
EMBRAER EMB-120 Series......................... 96-09-24 39-9600 61 FR 20677
de Havilland DHC-7/DHC-8 Series................ 96-09-25 39-9601 61 FR 20679
Fokker F27 Mark 100/200/300/400/500/600/700/050 96-09-26 39-9602 61 FR 20681
Series.
Short Brothers SD3-30/SD3-60/SD3-SHERPA Series. 96-09-27 39-9603 61 FR 20682
Aerospatiale ATR-42/ATR-72 Series.............. 96-09-28 39-9604 61 FR 20646
----------------------------------------------------------------------------------------------------------------
Those actions were prompted by results of a review of the
requirements for certification of the airplane in icing conditions, new
information on the icing environment, and icing data provided currently
to the flight crews.
[[Page 36668]]
The requirements of those AD's are intended to minimize the potential
hazards associated with operating the airplane in severe icing
conditions by providing more clearly defined procedures and limitations
associated with such conditions.
Since the issuance of those AD's, the FAA has determined that Short
Brothers Model SD3-60 SHERPA series airplanes were omitted
inadvertently from the list of airplane models subject to the
potentially unsafe condition described previously and addressed in
those AD's.
This airplane model is manufactured in the United Kingdom and is
type certificated for operation in the United States under the
provisions of section 21.29 of the Federal Aviation Regulations (14 CFR
21.29) and the applicable bilateral airworthiness agreement.
Explanation of Requirements of Proposed Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design, the
proposed AD would require revising the AFM to provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions, and to limit or prohibit the use of various flight
control devices.
Cost Impact
The FAA estimates that 20 airplanes of U.S. registry would be
affected by this proposed AD, that it would take approximately 1 work
hour per airplane to accomplish the proposed actions, and that the
average labor rate is $60 per work hour. Based on these figures, the
cost impact of the proposed AD on U.S. operators is estimated to be
$1,200, or $60 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the proposed requirements of
this AD action, and that no operator would accomplish those actions in
the future if this AD were not adopted.
In addition, the FAA recognizes that this proposed AD may impose
operational costs. However, those costs are incalculable because the
frequency of occurrence of the specified conditions and the associated
additional flight time are indeterminable. Nevertheless, because of the
severity of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations proposed herein would not have 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. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Short Brothers, PLC: Docket 96-NM-122-AD.
Applicability: All Model SD3-60 SHERPA series airplanes,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING:
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
[[Page 36669]]
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT:
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of- attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
Secs. 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR
21.197 and 21.199) to operate the airplane to a location where the
requirements of this AD can be accomplished.
Issued in Renton, Washington, on July 8, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-17740 Filed 7-11-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-17739 Airworthiness Directives; Shorts Model SD3-30, -60, and -SHERPA Series Airplanes
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36669-36671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17739]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-08-AD]
RIN 2120-AA64
Airworthiness Directives; Shorts Model SD3-30, -60, and -SHERPA
Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new Airworthiness
Directive (AD) that is applicable to all Shorts Model SD3-30, -60, and
-SHERPA series airplanes. This proposal would require a visual
inspection to detect signs of exfoliation corrosion on the brackets of
the flap hydraulic units, and rework or replacement of corroded
brackets. This proposal is prompted by a report that exfoliation
corrosion was found on the brackets of the flap hydraulic units. The
actions specified by the proposed AD are intended to prevent such
corrosion, and consequent reduced structural integrity of the brackets
of the flap hydraulic units, which could result in the loss of the flap
control and consequent reduced controllability of the airplane.
DATES: Comments must be received by August 29, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-08-AD, 1601 Lind Avenue, SW., Renton,
Washington 98055-4056. Comments may be inspected at this location
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal
holidays.
The service information referenced in the proposed rule may be
obtained from Short Brothers PLC, 2011 Crystal Drive, Suite 713,
Arlington, Virginia 22202-3719.
This information may be examined at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington.
FOR FURTHER INFORMATION CONTACT: Phil Forde, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2146; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-08-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 96-NM-08-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
The Civil Aviation Authority (CAA), which is the airworthiness
authority for the United Kingdom, recently notified the FAA that an
unsafe condition may exist on all Short Brothers Model SD3-30, -60, and
-SHERPA series airplanes. The CAA advises that, during a maintenance
check on a Model SD3-30 series airplane, exfoliation corrosion was
found on the brackets of the flap hydraulic units. The effects of such
corrosion could lead to the reduced structural integrity of the
brackets of the flap hydraulic units. This condition, if not detected
and corrected in a timely manner, could result in the loss of the flap
control and consequent reduced controllability of the airplane.
The brackets of the flap hydraulic units on certain Model SD3-60,
and -SHERPA series airplanes are identical to those on the affected
Model SD3-30 series airplanes. Therefore, all of these models may be
subject to the same unsafe condition.
[[Page 36670]]
Explanation of Relevant Service Information
Shorts has issued Service Bulletin SD330-27-34 (for Model SD3-30
series airplanes), Service Bulletin SD360-27-24 (for Model SD3-60
series airplanes), and Service Bulletin SD3 SHERPA-27-1 (for Model SD3-
SHERPA series airplanes), all dated September 12, 1995. These service
bulletins describe procedures for a visual inspection to detect signs
of exfoliation corrosion on the brackets of the flap hydraulic units,
and rework or replacement of corroded brackets. The CAA classified
these service bulletins as mandatory and issued airworthiness
directives 005-09-95 (for Model SD3-30 series airplanes), 007-09-95
(for Model SD3-60 series airplanes), and 008-09-95 (for Model SD3-
SHERPA series airplanes), in order to assure the continued
airworthiness of these airplanes in the United Kingdom.
FAA's Conclusion
This airplane model is manufactured in the United Kingdom and is
type certificated for operation in the United States under the
provisions of section 21.29 of the Federal Aviation Regulations (14 CFR
21.29) and the applicable bilateral airworthiness agreement. Pursuant
to this bilateral airworthiness agreement, the CAA has kept the FAA
informed of the situation described above. The FAA has examined the
findings of the CAA, reviewed all available information, and determined
that AD action is necessary for products of this type design that are
certificated for operation in the United States.
Explanation of Requirements of Proposed Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design, the
proposed AD would require a visual inspection to detect signs of
exfoliation corrosion on the brackets of the flap hydraulic units, and
rework or replacement of corroded brackets. The actions would be
required to be accomplished in accordance with the service bulletins
described previously.
Cost Impact
The FAA estimates that 138 airplanes (50 Model SD3-30 series
airplanes, 72 Model SD3-60 series airplanes, and 16 Model SD3-SHERPA
series airplanes) of U.S. registry would be affected by this proposed
AD, that it would take approximately 5 work hours per airplane to
accomplish the proposed actions, and that the average labor rate is $60
per work hour. Based on these figures, the cost impact of the proposed
AD on U.S. operators is estimated to be $41,400, or $300 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the proposed requirements of
this AD action, and that no operator would accomplish those actions in
the future if this AD were not adopted.
Regulatory Impact
The regulations proposed herein would not have 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. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Short Brothers, PLC: Docket 96-NM-08-AD.
Applicability: All Model SD3-30, -60, and -SHERPA series
airplanes, certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent corrosion on the brackets of the flap hydraulic
units, and consequent reduced structural integrity of those
brackets, which could result in the loss of the flap control and
consequent reduced controllability of the airplane; accomplish the
following:
(a) Within 90 days after the effective date of this AD, perform
a visual inspection to detect signs of exfoliation corrosion on the
brackets of the flap hydraulic units, in accordance with Shorts
Service Bulletin SD330-27-34 (for Model SD3-30 series airplanes);
Shorts Service Bulletin SD360-27-24 (for Model SD3-60 series
airplanes); or Short Service Bulletin SD3 SHERPA-27-1 (for Model
SD3-SHERPA series airplanes); all dated September 12, 1995; as
applicable.
(1) If no corrosion is detected, accomplish paragraph (a)(1)(i)
or (a)(1)(ii) of this AD, as applicable.
(i) For Model SD3-30 and -60 series airplanes: Repeat the visual
inspection thereafter at intervals not to exceed 2,400 hours or 12
months, whichever occurs first.
(ii) For Model SD3-SHERPA series airplanes: Repeat the visual
inspection thereafter at intervals not to exceed 12 months. -
(2) If any corrosion is detected and it is within the limits
specified in the applicable service bulletin, prior to further
flight, rework the subject area in accordance with the applicable
service bulletin. After accomplishment of the rework, accomplish
paragraph (a)(2)(i) or (a)(2)(ii) of this AD, as applicable. -
(i) For Model SD3-30 and -60 series airplanes: Repeat the visual
inspection thereafter at intervals not to exceed 600 hours or 6
months, whichever occurs first. -
(ii) For Model SD3-SHERPA series airplanes: Repeat the visual
inspection thereafter at intervals not to exceed 6 months.
(3) If any corrosion is detected and it is outside the limits
specified in the applicable service bulletin, prior to further
flight, replace the bracket with a new bracket in accordance with
the applicable service bulletin.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance
[[Page 36671]]
Inspector, who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on July 8, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-17739 Filed 7-11-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-17709 Accessibility Guidelines for Play Facilities; Notice of Meeting of Regulatory Negotiation Committee
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Page 36688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17709]
=======================================================================
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ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
36 CFR Parts 1190 and 1191
Accessibility Guidelines for Play Facilities; Notice of Meeting
of Regulatory Negotiation Committee
AGENCY: Architectural and Transportation Barriers Compliance Board.
ACTION: Committee meeting.
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SUMMARY: The Architectural and Transportation Barriers Compliance Board
(Access Board) has established a regulatory negotiation committee to
develop a proposed rule on accessibility guidelines for newly
constructed and altered play facilities covered by the Americans with
Disabilities Act and the Architectural Barriers Act. This document
announces the dates and location of the next meeting of the committee,
which is open to the public.
DATES: The committee will meet as follows: Sunday, August 4, 1996, 9:00
a.m. to 6:00 p.m. Monday, August 5, 1996, 9:00 a.m. to 5:00 p.m. and
7:00 p.m. to 9:30 p.m. Tuesday, August 6, 1996, 9:00 a.m. to 4:00 p.m.
ADDRESSES: The meeting will be held at the Maplewood Community Center,
2100 White Bear Avenue, Maplewood, Minnesota.
FOR FURTHER INFORMATION CONTACT: Peggy Greenwell, Office of Technical
and Information Services, Architectural and Transportation Barriers
Compliance Board, 1331 F Street, NW., suite 1000, Washington, DC.
20004-1111. Telephone number (202) 272-5434 extension 34 (Voice); (202)
272-5449 (TTY). This document is available in alternate formats
(cassette tape, braille, large print, or computer disc) upon request.
SUPPLEMENTARY INFORMATION: In February 1996, the Access Board
established a regulatory negotiation committee to develop a proposed
rule on accessibility guidelines for newly constructed and altered play
facilities covered by the Americans with Disabilities Act and the
Architectural Barriers Act. (61 FR 5723, February 14, 1996). The
committee will hold its next meeting on the dates and at the location
announced above. The meeting is open to the public. The meeting site is
accessible to individuals with disabilities. Individuals with hearing
impairments who require sign language interpreters should contact Peggy
Greenwell by July 26, 1996, by calling (202) 272-5434 extension 34
(voice) or (202) 272-5449 (TTY).
On Sunday, August 4, 1996, the committee will tour various play
facilities in the Minneapolis area. Bus transportation will be provided
for committee members. There is limited space available on the bus for
members of the public. Individuals may reserve space in advance by
calling Peggy Greenwell at the phone numbers listed above. If all
available spaces are not reserved in advance, spaces will be filled on
the day of the tour on a first come/first served basis. The bus will
depart from the main entrance of the Sheraton Metrodome, 1330
Industrial Boulevard, Minneapolis, Minnesota, at 9:00 a.m. The bus will
return to Maplewood Community Center at approximately 4:00 p.m. and the
committee will meet until 6:00 p.m.
Lawrence W. Roffee,
Executive Director.
[FR Doc. 96-17709 Filed 7-11-96; 8:45 am]
BILLING CODE 8150-01-P
Complete official Federal Register PDF
FR Doc. 96-17660 Glyphosate; Pesticide Tolerance
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36688-36691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17660]
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[[Page 36689]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 6E4645/P672; FRL-5384-1]
Glyphosate; Pesticide Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: This document proposes to establish a time-limited tolerance
for residues of the herbicide glyphosate [N-(phosphonomethyl)glycine]
in or on the raw agricultural commodity (RAC) oats at 20 parts per
million (ppm). Because additional time is needed for the petitioner to
submit additional details on the processing study and the composition
of the foreign product, the Agency is proposing to grant this tolerance
with a 3-year expiration date. This tolerance is being established to
allow for the legal import of oats treated with glyphosate. Monsanto
Company requested this tolerance in a petition submitted to EPA
pursuant to the Federal Food, Drug, and Cosmetic Act (FFDCA).
DATES: Comments, identified by the docket control number [PP 6E4645/
P672], must be received on or before August 12, 1996.
ADDRESSES: By mail, submit written comments to: Public Response and
Program Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person, bring comments to: Rm. 1132, CM #2,
1921 Jefferson Davis Hwy., Arlington, VA 22202. Comments and data may
also be submitted to OPP electronically by sending electronic mail (e-
mail) to: [email protected]. Electronic comments must be
submitted as an ASCII file avoiding the use of special characters and
any form of encryption. Comments and data will also be accepted on
disks in WordPerfect in 5.1 file format or ASCII file format. All
comments and data in electronic form must be identified by the docket
number [PP 6E4645/P672]. Electronic comments on this proposed rule may
be filed online at many Federal Depository Libraries. Additional
information on electronic submission can be found in the
``SUPPLEMENTARY INFORMATION'' section of this document.
Information submitted as a comment concerning this document may be
claimed confidential by marking any part or all that information as
``Confidential Business Information'' (CBI). Information so marked will
not be disclosed except in accordance with procedures set forth in 40
CFR part 2. A copy of the comment that does not contain CBI must be
submitted for inclusion in the public record. Information not marked
confidential may be disclosed publicly by EPA without prior notice. All
written comments will be available for public inspection in Rm. 1132 at
the Virginia address given above, from 8 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: By mail, Robert J. Taylor, Product
Manager, Registration Division (7505C), Office of Pesticide Programs,
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
Office location and telephone number: Rm. 241, CM #2, 1921 Jefferson
Davis Hwy., Arlington, VA, (703)-305-6027; e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: Monsanto Company, 700 14th St., NW., Suite
1100, Washington, DC 20005, has submitted a pesticide petition (PP)
6E4645 proposing to amend 40 CFR 180.364, pursuant to section 408(d) of
the Federal Food, Drug, and Cosmetic Act (FFDCA) 21 U.S.C. 346(a), by
establishing a regulation to permit residues of the herbicide
glyphosate [N-(phosphonomethyl)glycine] resulting from the application
of the isopropylamine salt and/or the monoammonium salt of glyphosate
in or on the raw agricultural commodity (RAC) oats at 20.0 parts per
million (ppm). The data submitted in the petitions and other relevant
material have been evaluated. The glyphosate toxicological data listed
below were considered in support of these tolerances.
1. Several acute toxicology studies placing technical-grade
glyphosate in Toxicity Category III and Toxicity Category IV.
2. A 1-year feeding study with dogs fed dosage levels of 0, 20,
100, and 500 milligrams/kilogram/day (mg/kg/day) with a no-observable-
effect level (NOEL) of 500 mg/kg/day.
3. A 2-year carcinogenicity study in mice fed dosage levels of 0,
150, 750, and 4,500 mg/kg/day with no carcinogenic effect at the
highest dose tested (HDT) of 4,500 mg/kg/day.
4. A chronic feeding/carcinogenicity study in male and female rats
fed dosage levels of 0, 3, 10, and 31 mg/kg/day (males) and 0, 3, 11,
or 34 mg/kg/day (females) with no carcinogenic effects observed under
the conditions of the study at dose levels up to and including 31 mg/
kg/day (HDT) (males) and 34 mg/kg/day (HDT) (females) and a systemic
NOEL of 31 mg/kg/day (HDT) (males) and 34 mg/kg/day (HDT) (females).
Because a maximum tolerated dose (MTD) was not reached, this study was
classified as supplemental for carcinogenicity.
5. A chronic feeding/carcinogenicity study in male and female rats
fed dosage levels of 0, 89, 362, and 940 mg/kg/day (males) and 1, 113,
457, and 1,183 mg/kg/day (females) with no carcinogenic effects noted
under the conditions of the study at dose levels up to and including
940/1,183 mg/kg/day (males/females) (HDT) and a systemic NOEL of 362
mg/kg/day (males) based on an increased incidence of cataracts and lens
abnormalities, decreased urinary pH, increased liver weight and
increased liver weight/brain ratio (relative liver weight) at 940 mg/
kg/day (males) (HDT) and 457 mg/kg/day (females) based on decreased
body weight gain at 1,183 mg/kg/day (females) (HDT).
6. A developmental toxicity study in rats given doses of 0, 300,
1,000, and 3,500 mg/kg/day with a developmental NOEL of 1,000 mg/kg/day
based on an increase in number of litters and fetuses with unossified
sternebrae, and decrease in fetal body weight at 3,500 mg/kg/day, and a
maternal NOEL of 1,000 mg/kg/day based on decrease in body weight gain,
diarrhea, soft stools, breathing rattles, inactivity, red matter in the
region of nose, mouth, forelimbs, or dorsal head, and deaths at 3,500
mg/kg/day (HDT).
7. A developmental toxicity study in rabbits given doses of 0, 75,
175, and 350 mg/kg/day with a developmental NOEL of 350 mg/kg/day
(HDT); a maternal NOEL of 175 mg/kg/day based on increased incidence of
soft stool, diarrhea, nasal discharge, and deaths at 350 mg/kg/day
(HDT).
8. A multigeneration reproduction study with rats fed dosage levels
of 0, 3, 10, and 30 mg/kg/day with a developmental NOEL of 10 mg/kg/day
based on an apparent increased incidence of focal tubular dilation of
the kidney (both unilateral and bilateral combined) of male F3b pups.
9. A two generation reproduction study with rats fed dosage levels
of 0, 100, 500, and 1,500 mg/kg/day with a developmental NOEL of 500
mg/kg/day based on decreased pup body weight and body weight gain on
lactation days 14 and 21 at 1,500 mg/kg/day (HDT), a systemic NOEL of
500 mg/kg/day based on soft stools in Fo and F1 males and females at
1,500 mg/kg/day (HDT) and a reproductive NOEL of 1,500 mg/kg/day (HDT).
Additionally, since there was no increase in focal tubular dilation
[[Page 36690]]
of the kidney of the pups at any dose level, the findings at 30 mg/kg/
day in the earlier study was considered sparious.
10. Mutagenicity data included chromosomal aberration in vitro (no
aberrations in Chinese hamster ovary cells were caused with and without
S9 activation); DNA repair in rat hepatocyte; in vivo bone marrow
cytogenic test in rats; rec-assay with B. subtilis; reverse mutation
test with S. typhimurium; Ames test with S. typhimurium; and dominant-
lethal mutagenicity test in mice (all negative).
The reference dose (RfD) based on a developmental study with
rabbits (NOEL of 175 mg/kg/ bwt/day) and using a hundred-fold safety
factor is calculated to be 2.0 mg/kg body weight/day. The theoretical
maximum residue contribution (TMRC) for published tolerances is
0.021460 mg/kg bwt/day or 1.0% of the RfD for the overall U.S.
population. This current action on oats will contribute 0.001644 mg/kg/
day to the TMRC. This tolerance will utilize a total of 0.082% of the
RfD for the overall U.S. population. For U.S. subgroup population,
nonnursing infants, the current action and previously established
tolerances utilize, a total of 3.2% of the RFD, assuming that residue
levels are at the established tolerance levels and that 100% of the
crop is treated.
Data desirable for this petition include additional details for the
processing study and composition of the foreign product. The Agency is
granting the tolerance for oats with a 3-year expiration date to allow
the petitoner, Monsanto Company, to provide the required data.
There are currently no actions pending against the continued
registration of this pesticide. No detectable residues of N-
nitrosoglyphosate, a contaminant of glyphosate, are expected to be
present in the commodities for which tolerances are established. The
carcinogenic potential of glyphosate was first considered by a panel,
then called the Toxicology Branch AD Hoc Committee, in 1985. The
Committee, in a consensus review dated March 4, 1985, classified
glyphosate as a Group C carcinogen based on an increased incidence of
renal tumors in male mice. The Committee also concluded that dose
levels tested in the 26-month rat study were not adequate for
assessment of glyphosate's carcinogenic potential in this species.
These findings, along with additional information, including a
reexamination of the kidney slides from the long-term mouse study, were
referred to the FIFRA Scientific Advisory Panel (SAP). In its report
dated February 24, 1986, SAP classified glyphosate as a Group D
Carcinogen (inadequate animal evidence of carcinogenic potential). SAP
concluded that, after adjusting for the greater survival in the high-
dose mice compared to concurrent controls, that no statistically
significant pairwise differences existed, although the trend was
significant.
The SAP determined that the carcinogenic potential of glyphosate
could not be determined from existing data and proposed that the rat
and/or mouse studies be repeated in order to classify these equivocal
findings. On reexamination of all information, the Agency classified
glyphosate as a Group D carcinogen and requested that the rat study be
repeated and that a decision on the need for a repeat mouse study would
be made upon completion of review of the rat study.
Upon receipt and review of the second rat chronic feeding/
carcinogenicity study, all toxicological findings for glyphosate were
referred to the Health Effects Division Carcinogenicity Peer Review
Committee on June 26, 1991, for discussion and evaluation of the weight
of evidence on glyphosate with particular emphasis on its carcinogenic
potential. The Peer Review Committee classified glyphosate as a Group E
(evidence of noncarcinogenicity for humans), based upon lack of
convincing carcinogenicity evidence in adequate studies in two animal
species. This classification is based on the following findings: (1)
None of the types of tumors observed in the studies (pancreatic islet
cell adenomas in male rat, thyroid c-cell adenomas and/or carcinomas in
male and female rats, hepatocellular adenomas and carcinomas in male
rats, and renal tubular neoplasms in male mice) were determined to be
compound related; (2) glyphosate was tested up to the limit dose on the
rat and up to levels higher than the limit dose in mice; and (3) there
is no evidence of genotoxicity for glyphosate. Accordingly, EPA
concludes that glyphosate has not been ``found to induce cancer when
ingested by man or animal.'' 21 U.S.C. 348(c)(3).
The nature of the residue in plants is adequately understood. The
residue to be regulated is the parent glyphosate. Adequate methodology
(HPLC) with flurometric detection is available for enforcement
purposes, and the methodology has been published in the Pesticide
Analytical Manual (PAM), Vol. II. The submitted residue data adequately
support the proposed tolerance of 20 ppm. Any secondary residues
occurring in milk, eggs, meat, fat, liver, and kidney of cattle, goats,
horses, hogs, and sheep be covered by existing tolerances.
Based on the information cited above, the Agency has determined
that when used in accordance with good agricultural practice, this
ingredient is useful and the tolerance established by amending 40 CFR
part 180 will protect the public health. It is proposed, therefore,
that the tolerance be established as set forth below.
Any person who has registered or submitted and application for
registration of a pesticide under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) as amended, which contains any of the
ingredients listed herein, may request within 30 days after publication
of this document in the Federal Register that this proposal be referred
to an Advisory Committee in accordance with Section 408 of the Federal
Food, Drug, and Cosmetic Act.
Interested persons are invited to submit written comments on the
proposed regulation. Comments must bear a notation indicating the
document control number, [6E4645/P672]. All written comments filed in
response to this petition will be available in the Public Response and
Program Resources Branch, at the address given above from 8 a.m. to
4:30 p.m., Monday through Friday, except legal holidays.
A record has been established for this rulemaking under docket
number [PP 6E4645/P672] (including comments and data submitted
electronically as described below). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Rm. 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Electronic comments can be sent directly to EPA at:
[email protected]
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer any comments electronically into printed, paper form
as they are received and will place the paper copies in the rulemaking
record which will
[[Page 36691]]
also include all comments submitted directly in writing. The official
record is the paper record maintained at the address in ``ADDRESSES''
at the beginning of this document.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. Under section 3(f),
the order defines a ``significant regulatory action'' as an action that
is likely to result in a rule (1) Having an annual effect on the
economy of $100 million or more, or adversely and materially affecting
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities (also referred to as ``economically
significant''); (2) creating serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially altering the budgetary impacts of entitlement, grants, user
fees, or loan programs or the rights and obligation of recipients
thereof; or (4) raising novel legal or policy issues arising out of
legal mandates, the President`s priorities, or the principles set forth
in this Executive Order. Pursuant to the terms of this Executive Order,
EPA has determined that this proposed rule is not ``significant'' and
is therefore not subject to OMB review.
This action does not impose any enforceable duty, or contain any
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled ``Enhancing the Intergovernmental Partnership,'' or special
consideration as required by Executive Order 12898 (59 FR 7629,
February 29, 1994).
Pursuant to the requirements of the Regulatory Flexibility Act
(Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601-612), the Administrator
has determined that regulations establishing new tolerances or raising
tolerance levels or establishing exemptions from tolerance requirements
do not have a significant impact on a substantial number of small
entities. A certification statement to this effect was published in the
Federal Register of May 4, 1981 (46 FR 24950).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests.
Dated: June 28, 1996.
Stephen L. Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, it is proposed that part 180 be amended as follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. Section 180.364 is amended by revising the entry for grain crops
(except wheat) under paragraph (a) in the table therein and adding a
new paragraph (e) to read as follows:
Sec. 180.364 Glyphosate: tolerances for residues.
(a) * * *
------------------------------------------------------------------------
Commodity Parts per million
------------------------------------------------------------------------
* * * * *
grain crops (except wheat and oats)....... 0.13
* * * * *
------------------------------------------------------------------------
* * * * *
(e) A tolerance to expire (Insert date 3-years after date of
publication of the final rule in the Federal Register) is established
for residues of the herbicide glyphosate (N-(phosphonomethyl)glycine)
resulting from the application of the isopropylamine salt of glyphosate
and/or the monoammonium salt of glyphosate in or on the raw
agricultural commodity oat at 20 parts per million.
[FR Doc. 96-17660 Filed 7-11-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-17310 Classified National Security Information and Access to Classified Information
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36677-36688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17310]
=======================================================================
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[[Page 36678]]
DEPARTMENT OF JUSTICE
28 CFR Part 17
[A.G. Order No. 2040-96]
Classified National Security Information and Access to Classified
Information
AGENCY: Department of Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule implements Executive Order No. 12958,
entitled ``Classified National Security Information,'' and Executive
Order No. 12968, entitled ``Access to Classified Information,'' by
completely revising and updating the Department of Justice's classified
national security information and access regulations.
DATES: Written comments must be received on or before September 10,
1996.
ADDRESSES: Comments should be submitted in triplicate to: D. Jerry
Rubino, Director, Security and Emergency Planning Staff, Justice
Management Division, Department of Justice, Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT:
D. Jerry Rubino, Director, Security and Emergency Planning Staff,
Justice Management Division, Department of Justice, Washington, DC
20530 (202-514-2094 (This is not a toll-free number).
SUPPLEMENTARY INFORMATION: The President issued Executive Orders No.
12958 and 12968 to update and revise the standards and process for
classification and declassification of, and access to, national
security information. This proposed rule implements these Presidential
directives and completely revises part 17 in accordance with the
Administration's priorities for regulatory reform and reinvention of
government. The revised rule substantially shortens and simplifies the
material contained in part 17, focusing on those matters that affect
the general public and that should be published as a formal rule. The
revised rule delegates to the Assistant Attorney General for
Administration responsibility for developing the vast majority of
information and internal operating instructions on classified
information and access. This rule has been reviewed by the Information
Security Oversight Office of the National Archives and Records
Administration, pursuant to Executive Order No. 12958.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order No. 12866, section 1(b), Principles of Regulation. The
Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order No. 12866,
section 3(f), Regulatory Planning and Review. Accordingly, this rule
has not been reviewed by the Office of Management and Budget pursuant
to Executive Order No. 12866.
Regulatory Flexibility Act
The Attorney General in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities.
List of Subjects in 28 CFR Part 17
Classified information, Foreign relations.
Part 17 of title 28 of the Code of Federal Regulations is proposed
to be revised to read as follows:
[[Page 36679]]
PART 17--CLASSIFIED NATIONAL SECURITY INFORMATION AND ACCESS TO
CLASSIFIED INFORMATION
Sec.
17.1 Purpose.
17.2 Scope.
17.3 Definitions.
Subpart A--Administration
17.11 Authority of the Assistant Attorney General for
Administration.
17.12 Component head responsibilities.
17.13 Office of Intelligence Policy and Review responsibilities;
interpretation of Executive orders.
17.14 Department Review Committee.
17.15 Access Review Committee.
17.16 Violations of classified information requirements.
17.17 Judicial proceedings.
17.18 Prepublication review.
Subpart B--Classified Information
17.21 Classification and declassification authority.
17.22 Classification of information; limitations.
17.23 Emergency classification requests.
17.24 Duration of classification.
17.25 Identification and markings.
17.26 Derivative classification.
17.27 Declassification and downgrading.
17.28 Automatic declassification.
17.29 Documents of permanent historical value.
17.30 Classification challenges.
17.31 Mandatory review for declassification requests.
17.32 Notification of classification changes.
Subpart C--Access to Classified Information
17.41 Access to classified information.
17.42 Positions requiring financial disclosure.
17.43 Reinvestigation requirements.
17.44 Access eligibility.
17.45 Need-to-know.
17.46 Access by persons outside the Executive Branch.
17.47 Denial or revocation of eligibility for access to classified
information.
Authority: 28 U.S.C. 501, 509, 510, 515-519; 5 U.S.C. 301; E.O.
12958, 60 FR 7977, 3 CFR, 1995 Comp., p. 333 19825; E.O. 12968, 60
FR 40245, 3 CFR, 1995 Comp., p. 391; 32 CFR part 2001.
Sec. 17.1 Purpose.
The purpose of this part is to ensure that information within the
Department of Justice (the ``Department'') relating to the national
security is classified, protected, and declassified pursuant to the
provisions of Executive Orders 12958 (3 CFR, 1995 Comp., p. 333) and
12968 (3 CFR, 1995 Comp., p. 391) and implementing directives from the
Information Security Oversight Office of the National Archives and
Records Administration (``ISOO''). Executive Orders 12958 and 12968
made numerous substantive changes in the system of classification,
declassification, and downgrading of classified National Security
Information and the criteria for access to this information.
Accordingly, this part is a revision of the Department's classified
information security rules.
(a) Subpart A of this part prescribes the implementation of
Executive Orders 12958 and 12968 within the Department through the
Assistant Attorney General for Administration, as the senior
responsible agency official. Subpart A of this part also provides for
certain relationships within the Department between the Assistant
Attorney General for Administration, other component heads, and the
Office of Intelligence Policy and Review.
(b) Subpart B of this part prescribes an orderly and progressive
system for ensuring that every necessary safeguard and procedure is in
place to assure that information is properly classified and that
classified information is protected from unauthorized disclosure.
Subpart B of this part requires original classification authorities to
make classification decisions based on specific criteria; provides that
most newly created classified information be considered for
declassification after 10 years; provides that historically valuable
information that is more than 25 years old (including information
classified under prior Executive orders) be automatically declassified,
with
[[Page 36680]]
appropriate exceptions; and establishes procedures for authorized
holders of classified information to challenge the classification of
information.
(c) Subpart C of this part establishes substantive standards and
procedures for granting, denying, and revoking, and for appealing
decisions to deny access to classified information with an emphasis on
ensuring the consistent, cost-effective, and efficient protection of
classified information. Subpart C of this part provides a process that
is fair and equitable to those with whom classified information is
entrusted and, at the same time, assures the security of the classified
information.
Sec. 17.2 Scope.
(a) All employees, contractors, grantees, and other's granted
access to classified information by the Department are governed by this
part, and by the standards in Executive Order 12958, Executive Order
12968, and directives promulgated under those Executive Orders. If any
portion of this part conflicts with any portion of Executive Order
12958, Executive Order 12968, or any successor Executive order, the
Executive order shall apply. This part supersedes the former rule and
any Department internal operating policy or directive that conflicts
with any portion of this part.
(b) This part applies to non-contractor personnel outside of the
Executive Branch and to contractor personnel or employees who are
entrusted with classified national security information originated
within or in the custody of the Department. This part does not affect
the operation of the Department's participation in the National
Industrial Security Program under Executive Order 12829 (3 CFR, 1993
Comp., p. 570).
(c) This part is independent of and does not affect any
classification procedures or requirements of the Atomic Energy Act of
1954, as amended (42 U.S.C. 2011 et seq).
(d) This part does not, and is not intended to, create any right to
judicial review, or any other right or benefit or trust responsibility,
substantive or procedural, enforceable by a party against the United
States, its agencies or instrumentalities, its officers or employees,
or any other person. This part creates limited rights to administrative
review of decisions pursuant to Secs. 17.30, 17.31, and 17.47. This
part does not, and is not intended to, create any right to judicial
review of administrative action under Secs. 17.14, 17.15, 17.18, 17.27,
17.30, 17.31 and 17.50.
Sec. 17.3 Definitions.
The terms defined or used in Executive Order 12958 and Executive
Order 12968, and the implementing directives in 32 CFR part 2001, are
applicable to this part.
Subpart A--Administration
Sec. 17.11 Authority of the Assistant Attorney General for
Administration.
(a) The Assistant Attorney General for Administration is designated
as the senior agency official as required by Sec. 5.6(c) of Executive
Order 12958, and Sec. 6.1(a) of Executive Order 12968 and, except as
specifically provided elsewhere in this part, is authorized to
administer the Department's national security information program
pursuant to Executive Order 12958. The Assistant Attorney General for
Administration shall appoint a Department Security Officer and may
delegate to the Department Security Officer those functions under
Executive Orders 12958 and 12968 that may be delegated by the senior
agency official. The Department Security Officer may redelegate such
functions when necessary to effectively implement this part.
(b) The Assistant Attorney General for Administration shall, among
other actions:
(1) Oversee and administer the Department's program established
under Executive Order No. 12958;
(2) Establish and maintain Department-wide security education and
training programs;
(3) Establish and maintain an ongoing self-inspection program
including the periodic review and assessment of the Department's
classified product;
(4) Establish procedures to prevent unnecessary access to
classified information, including procedures that:
(i) Require that a need for access to classified information is
established before initiating administrative procedures to grant
access; and
(ii) Ensure that the number of persons granted access to classified
information is limited to the minimum necessary for operational and
security requirements and needs;
(5) Develop special contingency plans for the safeguarding of
classified information used in or near hostile or potentially hostile
areas;
(6) Assure that the performance contract or other system used to
rate personnel performance includes the management of classified
information as a critical element or item to be evaluated in the rating
of:
(i) Original classification authorities;
(ii) Security managers or security specialists; and
(iii) All other personnel whose duties significantly involve the
creation or handling of classified information;
(7) Account for the costs associated with implementing this part
and report the cost to the Director of the ISOO;
(8) Assign in a prompt manner personnel to respond to any request,
appeal, challenge, complaint, or suggestion concerning Executive Order
12958 that pertains to classified information that originated in a
component of the Department that no longer exists and for which there
is no clear successor in function;
(9) Cooperate, under the guidance of the Security Policy Board,
with other agencies to achieve practical, consistent, and effective
adjudicative training and guidelines;
(10) Conduct periodic evaluations of the Department's
implementation and administration of Executive Orders 12958 and 12968;
(11) Establish a plan for compliance with the automatic
declassification provisions of Executive Order 12958 and oversee the
implementation of that plan; and
(12) Maintain a list of specific files series of records exempted
from automatic declassification by the Attorney General pursuant to
section 3.4(c) of Executive Order 12958.
(c) The Department Security Officer may grant, deny, suspend, or
revoke employee access to classified information pursuant to and in
accordance with Executive Order 12968. The Department Security Officer
may delegate the authority under this paragraph to qualified Security
Programs Managers when the operational need justifies the delegation
and when the Department Security Officer is assured that such officials
will apply all access criteria in a uniform and correct manner in
accord with the provisions of Executive Order 12968 and subpart C of
this part. The fact that a delegation has been made pursuant to this
section does not waive the Department Security Officer's authority to
make any determinations that have been delegated.
(d) The Department Security Officer shall maintain a current list
of all officials authorized pursuant to this part to originally
classify or declassify documents.
(e) The Department Security Officer shall promulgate criteria and
security requirements for the marking and safeguarding of information,
transportation and transfer of information, preparation of
classification guides, reporting of communications related to national
security by persons granted access to
[[Page 36681]]
classified information, reporting of information that raises doubts as
to whether another employee's continued eligibility for access to
classified information is clearly consistent with the national
security, and other matters necessary to the administration of the
Executive orders, the implementing regulations of the ISOO, and this
part.
Sec. 17.12 Component head responsibilities.
The head of each component shall appoint and oversee a Security
Programs Manager to implement this part. The Security Programs Managers
shall:
(a) Observe, enforce, and implement security regulations or
procedures pertaining to the classification, declassification,
safeguarding, handling, and storage of classified national security
information;
(b) Report violations of the provisions of this regulation to the
Department Security Officer;
(c) Ensure that all employees acquire adequate security education
and training as required by the provisions of the Department security
regulations and procedures for classified information;
(d) Continuously review the requirements for personnel access to
classified information as a part of the continuous need-to-know
evaluation, and initiate action to administratively withdraw or reduce
the level of access authorized as appropriate; and
(e) Cooperate fully with any request from the Department Security
Officer for assistance in the implementation of this part.
Sec. 17.13 Office of Intelligence Policy and Review responsibilities;
interpretation of Executive orders.
(a) The Counsel for Intelligence Policy shall represent the
Attorney General at interagency meetings on matters of general interest
concerning national security information.
(b) The Counsel for Intelligence Policy shall provide advice and
interpretation on any issues that arise under Executive Orders 12958
and 12968 and shall refer such questions to the Office of Legal Counsel
as appropriate.
(c) Any request for interpretation of Executive Order 12958 or
Executive Order 12968, pursuant to section 6.1(b) of Executive Order
12958, and section 7.2(b) of Executive Order 12968, shall be referred
to the Counsel for Intelligence Policy, who shall refer such questions
to the Office of Legal Counsel as appropriate.
Sec. 17.14 Department Review Committee.
(a) The Department Review Committee (DRC) is established to:
(1) Resolve all issues, except those related to the compromise of
classified information, that concern the implementation and
administration of Executive Order 12958, implementing directives from
the ISOO, and subpart B of this part, including those issues concerning
over classification, failure to declassify, classification challenges,
and delays in declassification not otherwise resolved;
(2) Review all appeals from denials of requests for records made
under section 3.6 of Executive Order 12958 and the Freedom of
Information Act (5 U.S.C. 552), when the proposed denial is based on
their continued classification under Executive Order 12958;
(3) Recommend to the Attorney General appropriate administrative
sanctions to correct the abuse or violation of any provision of
Executive Order 12958, the implementing directives or subpart B of this
part, except as it relates to the compromise of classified national
security information; and
(4) Review, on appeal, challenges to classification actions and
mandatory review requests.
(b) (1) The DRC shall consist of a senior representative designated
by the:
(i) Deputy Attorney General;
(ii) Assistant Attorney General, Office of Legal Counsel;
(iii) Assistant Attorney General, Criminal Division;
(iv) Assistant Attorney General, Civil Division;
(v) Assistant Attorney General for Administration;
(vi) Director, Federal Bureau of Investigation; and
(vii) Counsel for Intelligence Policy.
(2) Each such official shall also designate in writing an alternate
to serve in the absence of his or her representative. Four
representatives shall constitute a quorum of the DRC. The Attorney
General shall designate the Chairman of the DRC from among its members.
(c) The Office of Information and Privacy (OIP) shall provide the
necessary administrative staff support for the DRC.
Sec. 17.15 Access Review Committee.
(a) The Access Review Committee (ARC) is hereby established to
review all appeals from denials or revocations of eligibility for
access to classified information under Executive Order 12968. Unless
the Attorney General requests recommendations from the ARC and
personally exercises appeal authority, the ARC's decisions shall be
final.
(b) The ARC shall consist of the Deputy Attorney General or a
designee, the Counsel for Intelligence Policy or a designee, and the
Assistant Attorney General for Administration or a designee.
Designations must be approved by the Attorney General.
(c) The Department Security Officer shall provide the necessary
administrative staff support for the ARC.
Sec. 17.16 Violations of classified information requirements.
(a) Any person who suspects or has knowledge of a violation of this
part, including the known or suspected loss or compromise of national
security information, shall promptly report and confirm in writing the
circumstances to the Department Security Officer.
Any person who makes such a report to the Department Security
Officer shall promptly furnish a copy of such report:
(1) If the suspected violation involves a Department attorney
(including an Assistant United States Attorney or Special Assistant
United States Attorney) while engaged in litigation, grand jury
proceedings, or giving legal advice, or a law enforcement officer
assisting an attorney engaged in such activity, to the Office of
Professional Responsibility;
(2) If the suspected violation involves an employee of the Federal
Bureau of Investigation or the Drug Enforcement Administration, other
than a law enforcement officer in paragraph (a)(1) of this section, to
the Office of Professional Responsibility in that component; or
(3) In any other circumstance, to the Office of the Inspector
General.
(b) Department employees, contractors, grantees, or consultants may
be reprimanded; suspended without pay, terminated from classification
authority; suspended from or denied access to classified information;
or subject to other sanctions in accordance with applicable law and
Department regulation if they:
(1) Knowingly, willfully, or negligently disclose to unauthorized
persons information classified under Executive Order 12958 or
predecessor orders;
(2) Knowingly, willfully, or negligently classify or continue the
classification of information in violation of Executive Order 12958 or
its implementing directives; or
(3) Knowingly, willfully, or negligently violate any other
provision of Executive Order 12958, or knowingly and willfully grant
eligibility for, or allow access to, classified information in
violation of Executive Order 12968, or its implementing directives,
this part, or security requirements promulgated by the Department
Security Officer.
[[Page 36682]]
Sec. 17.17 Judicial proceedings.
(a) (1) Any Department official or organization receiving an order
or subpoena from a federal or state court to produce classified
information, required to submit classified information for official
Department litigative purposes, or receiving classified information
from another organization for production of such in litigation, shall
immediately determine from the agency originating the classified
information whether the information can be declassified. If
declassification is not possible, the Department official or
organization and the assigned Department attorney in the case shall
take all appropriate action to protect such information pursuant to the
provisions of this section.
(2) If a determination is made to produce classified information in
a judicial proceeding in any manner, the assigned Department attorney
shall take all steps necessary to ensure the cooperation of the court
and, where appropriate, opposing counsel in safeguarding and retrieving
the information pursuant to the provisions of this part.
(b) The Classified Information Procedures Act (CIPA), Pub. L. 96-
456, 94 Stat. 2025, 18 U.S.C. App., and the ``Security Procedures
Established Pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief
Justice of the United States for the Protection of Classified
Information'' may be used in Federal criminal cases involving
classified information. (Available from the Security and Emergency
Planning Staff, Justice Management Division, Department of Justice,
Washington, DC 20530.)
(c) In judicial proceedings other than Federal criminal cases where
CIPA is used, the Department, through its attorneys, shall seek
appropriate security safeguards to protect classified information from
unauthorized disclosure, including, but not limited to, consideration
of the following:
(1) A determination by the court of the relevance and materiality
of the classified information in question;
(2) An order that classified information shall not be disclosed or
introduced into evidence at a proceeding without the prior approval of
either the originating agency, the Attorney General, or the President;
(3) A limitation on attendance at any proceeding where classified
information is to be disclosed to those persons with appropriate
authorization to access classified information whose duties require
knowledge or possession of the classified information to be disclosed;
(4) A court facility that provides appropriate safeguarding for the
classified information as determined by the Department Security
Officer;
(5) Dissemination and accountability controls for all classified
information offered for identification or introduced into evidence at
such proceedings;
(6) Appropriate marking to indicate classified portions of any and
the maintenance of any classified transcript under seal;
(7) Handling and storage of all classified information including
classified portions of any transcript in a manner consistent with the
provisions of this part and Department implementing directives;
(8) Return at the conclusion of the proceeding of all classified
information to the Department or the originating agency, or placing the
classified information under court seal;
(9) Retrieval by Department employees of appropriate notes, drafts,
or any other documents generated during the course of the proceedings
that contain classified information and immediate transfer to the
Department for safeguarding and destruction as appropriate; and
(10) Full and complete advice to all persons to whom classified
information is disclosed during such proceedings as to the
classification level of such information, all pertinent safeguarding
and storage requirements, and their liability in the event of
unauthorized disclosure.
(d) Access to classified information by individuals involved in
judicial proceedings other than employees of the Department is governed
by Sec. 17.46(c).
Sec. 17.18 Prepublication review.
(a) All individuals with authorized access to Sensitive
Compartmented Information shall be required to sign nondisclosure
agreements containing a provision for prepublication review to assure
deletion of Sensitive Compartmented Information and other classified
information. Sensitive Compartmented Information is information that
not only is classified for national security reasons as Top Secret,
Secret, or Confidential, but also is subject to special access and
handling requirements because it involves or derives from particularly
sensitive intelligence sources and methods. The prepublication review
provision will require Department of Justice employees and other
individuals who are authorized to have access to Sensitive
Compartmented Information to submit certain material, described further
in the agreement, to the Department prior to its publication to provide
an opportunity for determining whether an unauthorized disclosure of
Sensitive Compartmented Information or other classified information
would occur as a consequence of its publication.
(b) Persons subject to these requirements are invited to discuss
their plans for public disclosures of information that may be subject
to these obligations with authorized Department representatives to an
early stage, or as soon as circumstances indicate these policies must
be considered. Except as provided in paragraph (j) of this section for
Federal Bureau of Investigation (FBI) personnel, all questions
concerning these obligations should be addressed to the Counsel for
Intelligence Policy, Department of Justice, 10th & Constitution Avenue,
NW., Washington, DC 20530. The official views of the Department on
whether specific materials require prepublication review may be
expressed only by the Counsel for Intelligence Policy and persons
should not act in reliance upon the views of other Department
personnel.
(c) Prepublication review is required only as expressly provided
for in a nondisclosure agreement. However, all persons who have had
access to classified information have an obligation to avoid
unauthorized disclosures of such information. Therefore, persons who
have such access but are not otherwise required to submit to
prepublication review under the terms of an employment or other
nondisclosure agreement are encouraged to submit material for
prepublication review voluntarily if they believe that such material
may contain classified information.
(d) The nature and extent of the material that is required to be
submitted for prepublication review under nondisclosure agreements is
expressly provided for in those agreements. It should be clear,
however, that such requirements do not extend to any materials that
exclusively contain information lawfully obtained at a time when the
author has no employment, contract, or other relationship with the
United States Government or that contain information exclusively
acquired outside the scope of employment.
(e) A person's obligation to submit material for prepublication
review remains identical whether such person prepares the material or
causes or assists another person (such as a ghost writer, spouse,
friend, or editor) in preparing the material. Material covered by a
nondisclosure agreement requiring prepublication review must be
submitted prior to discussing it with or showing it to a publisher, co-
author, or any other person who is not authorized to have access to it.
In this regard, it
[[Page 36683]]
should be noted that a failure to submit such material for
prepublication review constitutes a breach of the obligation and
exposes the author to remedial action even in cases where the published
material does not actually contain Sensitive Compartmented Information
or classified information. See Snepp v. United States, 444 U.S. 507
(1980).
(f) The requirement to submit material for prepublication review is
not limited to any particular type of material or disclosure or method
of production. Written materials include not only book manuscripts but
all other forms of written materials intended for public disclosure,
such as (but not limited to) newspaper columns, magazine articles,
letters to the editor, book reviews, pamphlets, scholarly papers, and
fictional material.
(g) Oral statements are also within the scope of a prepublication
review requirement when based upon written materials, such as an
outline of the statements to be made. There is no requirement to
prepare written materials for review, however, unless there is reason
to believe in advance that oral statements may contain Sensitive
Compartmented Information or other information required to be submitted
for review under the terms of the nondisclosure agreement. Thus, a
person may participate in an oral presentation where there is no
opportunity for prior preparation (e.g., news interview, panel
discussion) without violating the provisions of this paragraph.
(h) Material submitted for prepublication review will be reviewed
solely for the purpose of identifying and preventing the disclosure of
Sensitive Compartmented Information and other classified information.
This review will be conducted in an impartial manner without regard to
whether the material is critical of or favorable to the Department. No
effort will be made to delete embarrassing or critical statements that
are unclassified. Materials submitted for review will be disseminated
to other persons or agencies only to the extent necessary to identify
classified information.
(i) The Counsel for Intelligence Policy (or, in the case of FBI
employees, the FBI's Office of Congressional and Public Affairs) will
respond substantively to prepublication review requests within 30
working days of receipt of the submission. Priority shall be given to
reviewing speeches, newspaper articles, and other materials that the
author seeks to publish on an expedited basis. The Counsel's decisions
may be appealed to the Deputy Attorney General, who will process
appeals within 15 working days of receipt of the appeal. The Deputy
Attorney General's decision is final and not subject to further
administrative appeal. Persons who are dissatisfied with the final
administrative decision may obtain judicial review either by filing an
action for declaratory relief or by giving the Department notice of
their intention to proceed despite the Department's requests for
deletions of classified information, and a reasonable opportunity (30
working days) to file a civil action seeking a court order prohibiting
disclosure. Employees and other affected individuals remain obligated
not to disclose or publish information determined by the Government to
be classified until any civil action is resolved.
(j) The obligations of Department of Justice employees described in
this subpart apply with equal force to employees of the FBI with the
following exceptions and provisos:
(1) Nothing in this subpart shall supersede or alter obligations
assumed under the basic FBI employment agreement.
(2) FBI employees required to sign nondisclosure agreements
containing a provision for prepublication review pursuant to this
subpart shall submit materials for review to the Assistant Director,
Office of Congressional and Public Affairs. Such individuals shall also
submit questions as to whether specific materials require
prepublication review under such agreements to that Office for
resolution. Where such questions raise policy questions or concern
significant issues of interpretation under such an agreement, the
Assistant Director, Office of Congressional and Public Affairs, shall
consult with the Counsel for Intelligence Policy prior to responding to
the inquiry.
(3) Decisions of the Assistant Director, Office of Congressional
and Public Affairs, concerning the deletion of classified information,
may be appealed to the Director, FBI, who will process appeals within
15 working days of receipt. Persons who are dissatisfied with the
Director's decision may, at their option, appeal further to the Deputy
Attorney General as provided in paragraph (i) of this section. Judicial
review, as set forth in that paragraph, is available following final
agency action in the form of a decision by the Director or, if the
appeal process in paragraph (i) of this section is pursued, the Deputy
Attorney General.
Subpart B--Classified Information
Sec. 17.21 Classification and declassification authority.
(a) Top Secret original classification authority may only be
exercised by the Attorney General, the Assistant Attorney General for
Administration, and officials to whom such authority is delegated in
writing by the Attorney General. No official who is delegated Top
Secret classification authority pursuant to this paragraph may
redelegate such authority.
(b) The Assistant Attorney General for Administration may delegate
original Secret and Confidential classification authority to
subordinate officials determined to have frequent need to exercise such
authority. No official who is delegated original classification
authority pursuant to this paragraph may redelegate such authority.
(c) Officials authorized to classify information at a specified
level are also authorized to classify information at a lower level. In
the absence of an official authorized to exercise classification
authority pursuant to this section, the person designated to act in
lieu of such official may exercise the official's classification
authority.
Sec. 17.22 Classification of information; limitations.
(a) Information may be originally classified only if all of the
following standards are met:
(1) The information is owned by, produced by or for, or is under
control of the United States Government;
(2) The information falls within one or more of the categories of
information specified in section 1.5 of Executive Order 12958; and
(3) The classifying official determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security and such official is able to identify
or describe the damage.
(b) Information may be classified as Top Secret, Secret, or
Confidential according to the standards established in section 1.3 of
Executive Order 12958. No other terms shall be used to identify United
States classified national security information except as otherwise
provided by statute.
(c) Information shall not be classified if there is significant
doubt about the need to classify the information. If there is
significant doubt about the appropriate level of classification with
respect to information that is being classified, it shall be classified
at the lower classification of the levels considered.
(d) Information shall not be classified in order to conceal
inefficiency,
[[Page 36684]]
violations of law, or administrative error; to prevent embarrassment to
a person, organization, or agency; to restrain competition; or to
prevent or delay release of information that does not require
protection in the interest of national security. Information that has
been declassified and released to the public under proper authority may
not be reclassified.
(e) Information that has not previously been disclosed to the
public under proper authority may be classified or reclassified after
the Department has received a request for it under the Freedom of
Information Act (5 U.S.C. 552), the Privacy Act of 1974 (5 U.S.C.
552a), or the mandatory review provisions of Sec. 17.31. When it is
necessary to classify or reclassify such information, it shall be
forwarded to the Department Security Officer and classified or
reclassified only at the direction of the Attorney General, the Deputy
Attorney General or the Assistant Attorney General for Administration.
(f) Compilations of items of information that are individually
unclassified may be classified if the compiled information reveals an
additional association or relationship that meets the standards for
classification under Executive Order 12958 and that is not otherwise
revealed in the individual items of information.
Sec. 17.23 Emergency classification requests.
(a) Whenever any employee, contractor, licensee, certificate
holder, or grantee of the Department who does not have original
classification authority originates or develops information that
requires immediate classification and safeguarding, and no authorized
classifier is available, that person shall:
(1) Safeguard the information in a manner appropriate for its
classification level;
(2) Apply the appropriate overall classification markings; and
(3) Within five working days, securely transmit the information to
the organization that has appropriate subject matter interest and
classification authority.
(b) When it is not clear which Department organization would be the
appropriate orignal classifier, the information shall be sent to the
Department Security Officer to determine the appropriate organization.
(c) The organization with classification authority shall decide
within 30 days whether to classify information.
Sec. 17.24 Duration of classification.
(a) At the time of original classification, original classification
authorities shall attempt to establish a specific date or event for
declassification not more than 10 years from the date of the original
decision based on the duration of the national security sensitivity of
the information. If the original classification authority cannot
determine an earlier specific date or event for declassification, the
information shall be marked for declassification 10 years from the date
of the original decision.
(b) At the time original classification, an original classification
authority may exempt specific information from declassification within
10 years in accordance with section 1.6(d) of Executive Order 12958.
(c) An original classification authority may extend the duration of
classification or reclassify specific information for successive
periods not to exceed 10 years at a time if such action is consistent
with the standards and procedures established under, and subject to the
limitations of, Executive Order 12958.
Sec. 17.25 Identification and markings.
(a) Classified information must be marked pursuant to the standards
set forth in section 1.7 of Executive Order 12958; IS00 implementing
directives in 32 CFR part 2001, subpart B; and internal Department of
Justice direction provided by the Department Security Officer.
(b) Foreign government information shall be marked or classified at
a level equivalent to that level of classification assigned by the
originating foreign government.
(c) Information assigned a level of classification under
predecessor Executive orders shall be considered as classified at that
level of classification.
Sec. 17.26 Derivative classification.
(a) Persons need not possess original classification authority to
derivatively classify information based on source documents or
classification guides.
(b) Persons who apply derivative classification markings shall
observe original classification decisions and carry forward to any
newly created documents the pertinent classification markings.
(c) Information classified derivatively from other classified
information shall be classified and marked in accordance with the
standards set forth in section 2.1-2.3 of Executive Order 12958, the
ISOO implementing directives in 32 CFR 2001.22, and internal Department
directions provided by the Department Security Officer.
Sec. 17.27 Declassification and downgrading.
(a) Classified information shall be declassified as soon as it no
longer meets the standards for classification. Declassification and
downgrading is governed by sections 3.1-3.3 of Executive Order 12958,
implementing ISOO directives at 32 CFR part 2001, subpart E, and
applicable internal Department of Justice direction provided by the
Department Security Officer.
(b) Information shall be declassified or downgraded by the official
who authorized the original classification if that official is still
serving in the same position; the originator's successor; a supervisory
official of either; or officials delegated such authority in writing by
the Attorney General or the Assistant Attorney General for
Administration.
(c) It is presumed that information that continues to meet the
classification requirements under Executive Order 12958 requires
continued protection. In some exceptional cases during declassification
reviews, the need to protect classified information may be outweighed
by the public interest in disclosure of the information, and in these
cases the information should be declassified. If it appears that the
public interest in disclosure of the information may outweigh the need
to protect the information, the declassification reviewing official
shall refer the case with a recommendation for decision to the DRC. The
DRC shall review the case and make a recommendation to the Attorney
General on whether the public interest in disclosure outweighs the
damage to national security that might reasonably be expected from
disclosure. The Attorney General shall decide whether to declassify the
information. The decision of the Attorney General shall be final. This
provision does not amplify or modify the substantive criteria or
procedures for classification or create any substantive or procedural
rights subject to judicial review.
(d) Each component shall develop schedules for declassification of
records in the National Archives. The Department shall cooperate with
the National Archives and Records Administration and the Presidential
Libraries to ensure that declassification is accomplished in a timely
manner.
Sec. 17.28 Automatic declassification.
(a) Subject to paragraph (b) of this section, all classified
information contained in records that are more than 25 years old that
have been determined to have permanent historical value shall
[[Page 36685]]
be declassified automatically on April 17, 2000. Subsequently, all
classified information in such records shall be automatically
declassified not later than 25 years after the date of its original
classification with the exception of specific information exempt from
automatic declassification pursuant to section 3.4(b) and (d) of
Executive Order 12958.
(b) At least 220 days before information is declassified
automatically under this section, the respective component head shall
notify the Assistant Attorney General for Administration through the
Department Security Officer of any specific information they propose to
exempt from automatic declassification. The notification shall include:
(1) A description of the information;
(2) An explanation of why the information is exempt from automatic
declassification and must remain classified for a longer period of
time; and
(3) A specific date or event for declassification of the
information whenever the information exempted does not identify a
confidential human source or a human intelligence source.
(c) Proposed exemptions under this section shall be forwarded to
the DRC, which shall recommend a disposition of the exemption request
to the Assistant Attorney General for Administration. When the
Assistant Attorney General for Administration determines the exemption
request is consistent with this section, he or she will submit it to
the Executive Secretary of the Interagency Security Classification
Appeals Panel.
(d) Declassification guides that narrowly and precisely define
exempted information may be used to exempt information from automatic
declassification. Declassification guides must include the exemption
notification information detailed in paragraph (b) of this section, and
be approved pursuant to paragraph (c) of this section.
Sec. 17.29 Documents of permanent historical value.
The original classification authority, to the greatest extent
possible, shall declassify classified information contained in record
determined to have permanent historical value under title 44 of the
United States Code before they are accessioned into the National
Archives. The Department shall cooperate with the National Archives and
Records Administration in carrying out an automatic declassification
program involving accessioned Department records, presidential papers,
and historical materials under the control of the Archivist of the
United States.
Sec. 17.30 Classification challenges.
(a) Authorized holders of information classified by the Department
who, in good faith, believe that specific information is improperly
classified or unclassified are encouraged and expected to challenge the
classification status of that information pursuant to section 1.9 of
Executive Order 12958. Authorized holders may submit classification
challenges in writing to the DRC, through the Office of Information and
Privacy, United States Department of Justice, Washington, DC 20530. The
challenge need not be more specific than a question as to why the
information is or is not classified, or is classified at a certain
level.
(b) The DRC shall redact the identity of an individual challenging
a classification under paragraph (a) of this section and forward the
classification challenge to the original classification authority for
review and response.
(c) The original classification authority shall promptly, and in no
case later than 30 days, provide a written response to the DRC. The
original classification authority may classify or declassify the
information subject to challenge or state specific reasons why the
original classification determination was proper. If the original
classification authority is not able to respond within 30 days, the DRC
shall inform the individual who filed the challenge in writing of that
fact, and the anticipated determination date.
(d) The DRC shall inform the individual challenging the
classification of the determination made by the original classification
authority and that individual may appeal this determination to the DRC.
Upon appeal, the DRC may declassify, or direct the classification of,
the information. If the DRC is not able to act on any appeal within 45
days of receipt, the DRC shall inform the individual who filed the
challenge in writing of that fact, and the anticipated determination
date.
(e) The DRC shall provide the individual who appeals a
classification challenge determination with a written explanation of
the basis for the DRC decision and a statement of his or her right to
appeal that determination to the Interagency Security Classification
Appeals Panel (ISCAP) pursuant to section 5.4 of Executive Order 12958
and the rules issued by the ISCAP pursuant to section 5.4 of Executive
Order 12958.
(f) Any individual who challenges a classification and believes
that any action has been taken against him or her in retribution
because of that challenge shall report the facts to the Office of the
Inspector General of the Office of Professional Responsibility, as
appropriate.
(g) Requests for review of classified materials for
declassification by persons other than authorized holders are governed
by Sec. 17.31.
Sec. 17.31 Mandatory review for declassification requests.
(a) Any person may request classified information be reviewed for
declassification pursuant to the mandatory declassification review
provisions of Sec. 3.6 of Executive Order 12958. After such a review,
the information or any reasonably segregable portion thereof that no
longer requires protection under this part shall be declassified and
released to the requester unless withholding is otherwise warranted
under applicable law. If the information, although declassified, is
withheld, the requester shall be given a brief statement as to the
reasons for denial and a notice of the right to appeal the
determination to the Director, Office of Information and Privacy,
United States Department of Justice, Washington, DC 20530. If the
mandatory review for declassification request relates to the
classification of information that has been reviewed for
declassification within the past two years or that is the subject of
pending litigation, the requester shall be informed of that fact and
the administrative appeal rights.
(b) Request for mandatory review for declassification and any
subsequent appeal to the DRC shall be submitted to the Director, Office
of Information and Privacy, United States Department of Justice,
Washington, DC 20530, describing the document or material containing
the information with sufficient specificity to enable the Department to
locate that information with a reasonable amount of effort. The OIP
shall promptly forward the request to the component that originally
classified the information, or to the DRC in the case of an appeal, and
provide the requester with an acknowledgment of receipt of the request.
(c) When the description of the information in a request is
deficient, the component shall solicit as much additional identifying
information as possible from the requester. Before denying a request on
the basis that the information or material is not obtainable with a
reasonable amount of effort, the component shall ask the requestor to
limit the request to information or material that is reasonably
obtainable. If the information or material requested
[[Page 36686]]
cannot be described in sufficient particularity, or if it cannot be
obtained with a reasonable amount of effort, the component shall
provide the requestor with written notification of the reasons why no
action will be taken and the right to appeal the decision to the DRC.
(d) The component that originally classified the information shall
provide a written response to request for mandatory review within 60
days whenever possible, or shall inform the requester in writing why
additional time is needed. Unless there are unusual circumstances, the
additional time needed by the component originally classifying the
information shall not extend beyond 180 days from the receipt of the
request. If no determination has been made at the end of the 180 day
period, the requester may apply to the DRC for a determination.
(e) If the component that originally classified the information
determines that continued classification is warranted, it shall notify
the requester in writing of the decision and the right to appeal the
decision to the DRC no later than 60 days after receipt of the
notification of the decision.
(f) The DRC shall determine the appeals of the components'
mandatory declassification review decisions within 60 days after
receipt of the appeal, or notify the requester why additional time is
needed. In making its determinations concerning requests for
declassification of classified information, the DRC, for administrative
purposes, shall impose the burden of proof on the originating component
to show that continued classification is warranted. The DRC shall
provide the requester with a written statement of reasons for its
decision.
(g) If the individual requesting review of a classification is not
satisfied with the DRC's decision, he or she may appeal to the ISCAP
pursuant to Sec. 5.4 of Executive Order 12958 and rules issued by the
ISCAP pursuant to that section.
Sec. 17.32 Notification of classification changes.
All known holders of information affected by unscheduled
classification changes actions shall be notified promptly of such
changes by the original classifier or the authority making the change
in classification.
Subpart C--Access to Classified Information
Sec. 17.41 Access to classified information.
(a) No person may be given access to classified information or
material originated by, in the custody, or under the control of the
Department, unless that person--
(1) Has been determined to be eligible for access in accordance
with Secs. 3.1-3.3 of Executive Order 12968;
(2) Has a demonstrated need-to-know; and
(3) Has signed an approved nondisclosure agreement.
(b) Eligibility for access to classified information is limited to
United States citizens for whom an appropriate investigation of their
personal and professional history affirmatively indicates loyalty to
the United States, strength of character, trustworthiness, honesty,
reliability, discretion, and sound judgment, as well as freedom from
conflicting allegiances and potential for coercion, and willingness and
ability to abide by regulations governing the use, handling, and
protection of classified information. A determination of eligibility
for access to classified information is a discretionary security
decision based on judgments by appropriately trained adjudicative
personnel. Eligibility shall be granted only where facts and
circumstances indicate access to classified information is clearly
consistent with the national security interests of the United States
and any doubt shall be resolved in favor of the national security.
Sections 2.6 and 3.3 of Executive Order 12968 provide only limited
exceptions to these requirements.
(c) The Department of Justice does not discriminate on the basis of
race, color, religion, sex, national origin, disability, or sexual
orientation in granting access to classified information. However, the
Department may investigate and consider any matter that relates to the
determination of whether access is clearly consistent with the
interests of national security. No negative inferences concerning the
standards for access may be raised solely on the basis of the sexual
orientation of the employee or mental health counseling.
(d) An employee granted access to classified information may be
investigated at any time to ascertain whether he or she continues to
meet the requirements for access.
(e) An employee granted access to classified information shall
provide to the Department written consent permitting access by an
authorized investigative agency, for such time as access to classified
information is maintained and for a period of three years thereafter,
to:
(1) Financial records maintained by a financial institution as
defined in 31 U.S.C. 5312(a) or by a holding company as defined in 12
U.S.C. 3401;
(2) Consumer reports under the Fair Credit Reporting Act (15 U.S.C.
1681 et seq.); and
(3) Records maintained by commercial entities within the United
States pertaining to any travel by the employee outside the United
States.
(f) Information may be requested pursuant to the employee consent
obtained under paragraph (e) of this section only where:
(1) There are reasonable grounds to believe, based on credible
information, that the employee or former employee is, or may be,
disclosing classified information in an unauthorized manner to a
foreign power or agent of a foreign power;
(2) Information the Department deems credible indicates the
employee or former employee has incurred excessive indebtedness or has
acquired a level of affluence that cannot be explained by other
information; or
(3) Circumstances indicate that the employee or former employee had
the capability and opportunity to disclose classified information that
is known to have been lost or compromised to a foreign power or an
agent of a foreign power.
Sec. 17.42 Positions requiring financial disclosure.
(a) The Assistant Attorney General for Administration, in
consultation with the Counsel for Intelligence Policy, shall designate
each employee, by position or category where possible, who has a
regular need for access to any of the categories of classified
information described in Sec. 1.3(a) of Executive Order 12968.
(b) An employee may not hold a position designated as requiring a
regular need for access to categories of classified information
described in Sec. 1.3(a) of Executive Order 12968 unless, as a
condition of access to such information, the employee files with the
Department Security Officer:
(1) A financial disclosure form developed pursuant to Sec. 1.3(c)
of Executive Order 12968 as part of all background investigations or
reinvestigations;
(2) The same financial disclosure form, if selected by the
Department Security Officer on a random basis; and
(3) Relevant information concerning foreign travel, as determined
by the Department Security Officer.
17.43 Reinvestigation requirements.
Employees who are eligible for access to classified information
shall be subject to periodic reinvestigations and may also be
reinvestigated if, at any time, there is reason to believe that they
may no longer meet the standards for access.
[[Page 36687]]
Sec. 17.44 Access eligibility.
(a) Determinations of eligibility for access to classified
information are separate from suitability determinations with respect
to the hiring or retention of persons for employment by the Department
or any other personnel actions.
(b) The number of employees eligible for access to classified
information shall be kept to the minimum required for the conduct of
Department functions.
(c) Eligibility for access to classified information shall be
limited to classification levels for which there is a need for access.
No person shall be granted eligibility higher than his or her need.
Sec. 17.45 Need-to-know.
No person shall be granted access to specific classified
information unless that person has an actual need-to-know that
classified information, pursuant to section 2.5 of Executive Order
12968.
Sec. 17.46 Access by persons outside the Executive Branch.
(a) Classified information shall not be disseminated outside the
Executive Branch except under conditions that ensure that the
information will be given protection equivalent to that afforded within
the Executive Branch.
(b) Classified information originated by or in the custody of the
Department may be made available to individuals or agencies outside the
Executive Branch provided that such information is necessary for
performance of a function from which the Federal Government will derive
a benefit or advantage and that the release is not prohibited by the
originating department or agency (or foreign government in the case of
Foreign Government Information). Before such a release is made, the
head of the Office, Board, Division, or Bureau making the release shall
determine the propriety of such action, in the interest of the national
security, and must approve the release. Prior to the release, the
Department Security Officer must confirm that the recipient is eligible
for access to the classified information involved and agrees to
safeguard the information in accordance with the provisions of this
part.
(c) Members of Congress, Justices of the United States Supreme
Court, and Judges of the United States Courts of Appeal and District
Courts do not require a determination of their eligibility for access
to classified information by the Department. All other Legislative and
Judicial personnel including, but not limited to, Bankruptcy and
Magistrate Judges, congressional committee staffers, congressional
staffers, court reporters, typists, secretaries, law clerks, and
translators who require access to classified information must be
determined eligible by the Department Security Officer pursuant to
procedures approved by the Assistant Attorney General for
Administration.
(d) When other persons outside the Executive Branch who are not
subject to the National Industrial Security Program require access to
classified information originated by or in the custody of the
Department, but do not otherwise possess a proper access authorization,
an appropriate background investigation must be completed to allow the
Department Security Officer to determine their eligibility for access
to classified information. The length of time it generally takes to
complete an expedited background investigation is 90 days. Therefore,
all persons requiring access to classified information to participate
in congressional or judicial proceedings should be identified and the
background investigation initiated far enough in advance to ensure a
minimum impact on such proceedings.
(e) Personnel who are subject to a Department contract or grant or
who are rendering consultant services to the Department and require
access to classified information originated by or in the custody of the
Department shall be processed for such access pursuant to procedures
approved by the Assistant Attorney General for Administration.
(f)(1) The requirement that access to classified information may be
granted only as is necessary for the performance of official duties may
be waived, pursuant to section 4.5(a) of Executive Order 12958, for
persons who:
(i) Are engaged in historical research projects; or
(ii) Have previously occupied policymaking positions to which they
were appointed by the President.
(2) All persons receiving access pursuant to this paragraph (f)
must have been determined to be trustworthy by the Department Security
Officer as a precondition before receiving access. Such determinations
shall be based on such investigation as the Department Security Officer
deems appropriate. Historical researchers and former presidential
appointees shall not have access to Foreign Government Information
without the written permission from an appropriate authority of the
foreign government concerned.
(3) Waivers of the ``need-to-know'' requirement under this
paragraph (f) may be granted by the Department Security Officer
provided that the Security Programs Manager of the Office, Board,
Division, or Bureau with classification jurisdiction over the
information being sought:
(i) Makes a written determination that such access is consistent
with the interest of national security;
(ii) Limits such access to specific categories of information over
which the Department has classification jurisdiction;
(iii) Maintains custody of the classified information at a
Department facility;
(iv) Obtains the recipient's written and signed agreement to
safeguard the information in accordance with the provisions of this
regulation and to authorize a review of any notes and manuscript for
determination that no classified information is contained therein; and
(v) In the case of former presidential appointees, limits their
access to items that such former appointees originated, reviewed,
signed, or received while serving as a presidential appointee and
ensures that such appointee does not remove or cause to be removed any
classified information reviewed.
(4) If access requested by historical researchers and former
presidential appointees requires the rendering of services for which
fair and equitable fees may be charged pursuant to 31 U.S.C. 9701, the
requester shall be so notified and fees may be imposed.
Sec. 17.47 Denial or revocation of eligibility for access to
classified information.
(a) Applicants and employees who are determined to not meet the
standards for access to classified information established in section
3.1 of Executive Order 12968 shall be:
(1) Provided with a comprehensive and detailed written explanation
of the basis for that decision as the national security interests of
the United States and other applicable law permit and informed of their
right to be represented by counsel or other representative at their own
expense;
(2) Permitted 30 days from the date of the written explanation to
request any documents, records, or reports including the entire
investigative file upon which a denial or revocation is based; and
(3) Provided copies of documents requested pursuant to this
paragraph (a) within 30 days of the request to the extent such
documents would be provided if requested under the Freedom of
Information Act (5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C.
552a), and as the national security interests and other applicable law
permit.
[[Page 36688]]
(b) An applicant or employee may file a written reply and request
for review of the determination within 30 days after written
notification of the determination or receipt of the copies of the
documents requested pursuant to this subpart, whichever is later.
(c) An applicant or employee shall be provided with a written
notice of and reasons for the results of the review, the identity of
the deciding authority, and written notice of the right to appeal.
(d) Within 30 days of receipt of a determination under paragraph
(c) of this section, the applicant or employee may appeal that
determination in writing to the ARC, established under Sec. 17.15. The
applicant or employee may request an opportunity to appear personally
before the ARC and to present relevant documents, materials, and
information.
(e) An applicant or employee may be represented in any such appeal
by an attorney or other representative of his or her choice, at his or
her expense. Nothing in this section shall be construed as requiring
the Department to grant such attorney or other representative
eligibility for access to classified information, or to disclose to
such attorney or representative, or permit the applicant or employee to
disclose to such attorney or representative, classified information.
(f) A determination of eligibility for access to classified
information by the ARC is a discretionary security decision. Decisions
of the ARC shall be in writing and shall be made as expeditiously as
possible. Access shall be granted only where facts and circumstances
indicate that access to classified information is clearly consistent
with the national security interest of the United States, and any doubt
shall be resolved in favor the national security.
(g) The Department Security Officer shall have an opportunity to
present relevant information in writing or, if the applicant or
employee appears personally, in person. Any such written submissions
shall be made part of the applicant or employee's security record and,
as the national security interests of the United States and other
applicable law permit, shall also be provided to the applicant or
employee. Any personal presentations shall be, to the extent consistent
with the national security and other applicable law, in the presence of
the applicant or employee.
(h) When the Attorney General or Deputy Attorney General personally
certifies that a procedure set forth in this section cannot be made
available in a particular case without damaging the national security
interests of the United States by revealing classified information, the
particular procedure shall not be made available. This is a
discretionary and final decision not subject to further review.
(i) This section does not limit the authority of the Attorney
General pursuant to any other law or Executive order to deny or
terminate access to classified information if the national security so
requires and the Attorney General determines that the appeal procedures
set forth in this section cannot be invoked in a manner that is
consistent with the national security. Nothing in this section requires
that the Department provide any procedures under this section to an
applicant where a conditional offer of employment is withdrawn for
reasons of suitability or any reason other than denial of eligibility
for access to classified information. Suitability determinations shall
not be used for the purpose of denying an applicant or employee the
review proceedings of this section where there has been a denial or
revocation of eligibility for access to classified information.
Dated: June 28, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-17310 Filed 7-11-96; 8:45 am]
BILLING CODE 4410-01-M
Complete official Federal Register PDF
FR Doc. 96-16672 Preference in Employment
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36671-36677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16672]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 5
RIN 1076-AD05
Preference in Employment
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs is proposing to amend the
Preference in Employment regulations by clarifying the application of
Indian preference not only within BIA but to other organizations within
the Department of the Interior and removing the extension of Indian
preference to the individuals of the Osage Tribe of Oklahoma who are at
least one-quarter degree Indian ancestry. These regulations have also
been rewritten in plain English as mandated by E.O. 12866.
DATES: Comments must be received by September 10, 1996.
ADDRESSES: Mail comments to James McDivitt, Acting Director, Office of
Management and Administration, Bureau of Indian Affairs, Department of
the Interior 1849 C St. NW., Mail Stop 4616-MIB, Washington, DC 20240;
OR, hand deliver them to Room 4140 at the above address. Comments will
be available for inspection at this address from 9:00 a.m. to 4:00
p.m., Monday through Friday beginning approximately July 26, 1996.
FOR FURTHER INFORMATION CONTACT: Carol Smalley, Bureau of Indian
Affairs, Department of the Interior, telephone number (202) 208-5116.
SUPPLEMENTARY INFORMATION:
Background:
Indian Preference
The Indian preference statute, 25 U.S.C. 472, Section 12 of the
Indian Reorganization Act of June 18, 1934, 48 Stat. 986, requires that
the Secretary of the Interior establish standards of health, age,
character, experience, knowledge, and ability for Indiana who may be
appointed to positions for the administration of functions or services
affecting any Indian tribe. It further provides that qualified Indians
shall have preference to the appointment to vacancies in such
positions.
The legal position of the Department of the Interior on the scope
of the preference is set forth in a June 10, 1988, opinion by then-
solicitor Ralph Tarr, ``The Scope of Indian Preference Under the Indian
Reorganization Act'', M-36960, 96 I.D.1. It concludes, in general, that
the preference is limited in application to the Bureau of Indian
Affairs (BIA) or units removed intact from the Bureau of Indian Affairs
to another Departmental bureau. By memorandum dated April 10, 1996, the
Deputy Solicitor concluded that when a Bureau of Indian Affairs unit is
transferred intact by virtue of an administrative decision from the BIA
to a Departmental office where it will continue to perform the
functions it formerly performed as part of the BIA, it effectively
remains a BIA organization unit and the preference continues to apply.
The functions and personnel structure of the organizational unit remain
segregated from the remainder of the office to which it is transferred.
Indian Preference to the Individuals of the Osage Tribe of Oklahoma
The Bureau of Indian Affairs must apply Indian preference in
filling every vacant position, however created, within the Bureau of
Indian Affairs, Freeman v. Morton, 499 F.2d 492 (DC Cir. 1974). The
Secretary issued a final rule for the definition of ``Indian'' on
January 17, 1978, which identified five categories of persons of Indian
descent eligible for Indian preference. The fifth criterion applied to
the Five Civilized Tribes of Oklahoma and to the Osage Tribe whose
rolls were closed by the Acts of Congress, and who had not as yet
reorganized to establish current membership standards. Many such
individuals have received employment preference based on the one-
quarter degree standard which was previously established by the
Secretary. In 1978, these Tribes were allowed three years, until July
17, 1981, to organize so that members would not be deprived of the one-
quarter eligibility standard rather than the one-half degree standard.
On October 4, 1984, the Bureau of Indian Affairs published a final
rule (49 FR 39157) to amend 25 CFR Part 5. Section 5.1(e) specified the
date of October 4, 1985, as the final date for making appointments of
persons of one-quarter degree Indian ancestry. On September 15, 1986,
the BIA published a final rule (51 FR 32632) to revise 25 CFR Part 5,
Preference in Employment. Section 5.1(e) specified the date of
September 5, 1988, as the final date for making appointments of persons
of one-quarter degree Indian ancestry. The last final rule published
(54 FR 282, January 5, 1989), extended Section 5.1(e) to January 5,
1990.
On February 10, 1994, the Assistant Secretary--Indian Affairs
approved the Osage Tribe constitution as ratified by qualified voters
of the Osage Nation February 4, 1994. By memorandum dated July 15,
1994, the Assistant Secretary--Indian Affairs recognized the authority
of the Osage National Council to identify those Osage Indians who are
eligible for Indian preference and suggested the voting list prepared
for the constitutional election and the election of officers serve as a
temporary membership roll.
The authority to issue rules and regulations is vested in the
Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of
the Revised Statutes, 25 U.S.C. 2 and 9.
Notice of our intent to amend Section 5.1(e), Indian Preference to
the Individuals of the Osage Tribe of Oklahoma, appeared in the
proposed rule which was published at 59 FR 47046 (Sept. 13, 1994). No
comments were received by the Bureau following the publication of the
proposed rule.
Certain individuals who are of Indian descent may receive
preference when appointments are made to vacancies in positions in the
Bureau of Indian Affairs and in any Bureau of Indian Affairs unit that
has been transferred intact to a bureau of office within the Department
of the Interior and continues to perform the functions it formerly
performed as part of the Bureau of Indian Affairs.
Individuals seeking Indian preference in employment must subject
proof: of his or her membership in a Federally recognized Indian tribe;
of descendancy from a member and that he or she was residing within the
present boundaries of any Indian reservation on June 1, 1934; that he
or she is an Eskimo or another aboriginal person of Alaska as defined
by the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); or
proof of one-half or more Indian
[[Page 36672]]
blood of tribes that are indigenous to the United States.
Section 5.3 is intended to clarify how eligibility for Indian
preference is determined. Specifically, the application of the
definition of Indian in the Indian Reorganization Act of June 18, 1934
(48 Stat. 984, 988, 25 U.S.C. 479) to descendants of members born after
June 1, 1934. By memorandum dated March 24, 1976, then-Associate
Solicitor for Indian Affairs, Reid P. Chambers, concluded:
[O]nly persons residing within any Indian reservation on June 1,
1934, who are descendants of members may be considered preference
eligibles. ``Members'' in this context means persons identified on
approved census rolls or through other means prior to June 1, 1934.
Persons born after June 1, 1934, must meet any of the other criteria in
order to qualify for preference eligibility.
The form to be used by the Bureau of Indian Affairs to verify
eligibility for Indian preference follows the proposed rule.
Publication of the proposed rule by the Department of the Interior
(Department) provides the public an opportunity to participate in the
rulemaking process. Interested persons may submit written comments
regarding the proposed rule to the location identified in the addresses
section of this document.
Evaluation and Certification
The Department has certified to the Office of Management and Budget
(OMB) that this rule meets the applicable standards provided in
sections 2(a) and 2(b)(2) of Executive Order 12778.
This rule is not a significant regulatory action under Executive
Order 12866 and does not require review by the Office of Management and
Budget.
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
The Department has determined that this rule does not have
``significant'' takings implications. This rule does not pertain to
``taking'' of private property interests, nor does it impact private
property.
The Department has determined that this rule does not have
significant federalism effects because it will not interfere with the
roles, rights and responsibilities of states and it impacts only the
application of the Indian preference by the Bureau of Indian Affairs
and the Department of the Interior.
The Department has determined that this rule does not constitute a
major Federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969.
This rule imposes no unfunded mandates on any governmental or
private entity and is in compliance with the provisions of the Unfunded
Mandates Act of 1995.
This rule has been found to contain no information collection
requirements under the Paperwork Reduction Act of 1995. By memorandum
dated January 11, 1984, then-Deputy Administrator for the Office of
Information and Regulatory Affairs, Robert P. Bedell, Office of
Management and Budget (OMB), determined that information collections
related to certificates of Indian blood did not require OMB clearance.
Drafting Information. The primary authors of this document are
Carol Smalley, Bureau of Indian Affairs, Department of the Interior
and Mercedes C. Lewis, formerly of the Division of Personnel
Management.
List of Subjects in 25 CFR Part 5
Employment, Government employees, Indians.
For the reasons set out in the preamble, Part 5 of Title 25,
Chapter I of the Code of Federal Regulations is proposed to be revised
as set forth below.
[[Page 36673]]
PART 5--INDIAN PREFERENCE IN EMPLOYMENT
Sec.
5.1 Definitions.
5.2 Do certain individuals receive preference in employment?
5.3 How is eligibility for Indian preference determined?
5.4 When does Indian preference apply?
5.5 Is placement assistance provided to non-Indians affected by the
application of Indian preference?
5.6 Information collection.
Authority: 4 Stat. 737, 25 U.S.C. 43; 22 Stat. 88, 25 U.S.C. 46;
28 Stat. 313, 25 U.S.C. 44; 24 Stat. 389, 25 U.S.C. 348; and 48
Stat. 986, 25 U.S.C. 472 and 479, 93 Stat. 1056, 25 U.S.C. 472a and
5 U.S.C. 8336, 43 U.S.C. 1601.
Sec. 5.1 Definitions.
Alaska Native means a member of an Alaska Native Tribe; or, an
individual whose name appears on the roll of Alaska Natives prior to
July 31, 1981, and not subsequently disenrolled; or, an individual who
was issued stock in a Native corporation pursuant to 43 U.S.C.
1606(g)(1)(B)(i).
Indian tribe means an Indian or Alaska Native tribe, band, nation,
pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian tribe pursuant to Public Law 103-
454, 108 Stat. 4791. Annually, the Bureau of Indian Affairs publishes a
list of Federally recognized tribes in the Federal Register.
Roll of Alaska Natives means the roll of Alaska Natives prepared
pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et
seq.
Sec. 5.2 Do certain individuals receive preference in employment?
Yes. Certain persons who are of Indian descent, as described in
Sec. 5.3, receive preference when appointments are made to vacancies in
positions:
(a) In the Bureau of Indian Affairs; and
(b) In any unit that has been transferred intact from the Bureau of
Indian Affairs to a Bureau or Office within the Department of the
Interior and that continues to perform the functions formerly performed
as part of the Bureau of Indian Affairs.
Sec. 5.3 How is eligibility for Indian preference determined?
You are eligible for preference if:
(a) You are a member of any Federally recognized Indian tribe;
(b) You are a descendant of a member and you were residing within
the present boundaries of any Indian reservation on June 1, 1934;
(c) You are an Alaska Native; or
(d) You possess one-half or more Indian blood of tribes that are
indigenous to the United States.
Sec. 5.4 When does Indian preference apply?
(a) If you meet a standard in Sec. 5.3, you are eligible for
preference in an initial hire; reinstatement; transfer; reassignment;
reduction-in-force; promotion, including a temporary promotion; and
details exceeding 120 days.
(b) If you are eligible for preference, we may appoint you under a
Schedule A excepted appointment, Exception Number 213.3112(a)(7), and
after three consecutive years you may be converted to a career
appointment in competitive service. The conversion will not alter your
eligibility for preference in personnel actions.
(c) If you are within reach on a Civil Service Register, we may
give you a competitive appointment.
Sec. 5.5 Is placement assistance provided to non-Indians affected by
the application of Indian preference?
Yes. The Office of Personnel Management provides assistance to the
Bureau of Indian Affairs in placing non-Indian employees in other
Federal positions.
Sec. 5.6 Information collection.
In accordance with Office of Management and Budget regulations in 5
CFR 1320.4, approval of information collections contained in this part
is not required.
BILLING CODE 4310-02-P
[[Page 36674]]
Appendix to Part 5
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Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16672 Filed 7-11-96; 8:45 am]
BILLING CODE 4310-02-C
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