[Federal Register Volume 76, Number 49 (Monday, March 14, 2011)]
[Proposed Rules]
[Pages 13580-13583]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5831]



[[Page 13580]]

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 665

[Docket No. FTA-2011-0015]
RIN 2132-AB01


Bus Testing; Calculation of Average Passenger Weight and Test 
Vehicle Weight

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Transit Administration (FTA) is proposing to amend 
its bus testing regulation to more accurately reflect average passenger 
weights and actual transit vehicle loads. Specifically, FTA is 
proposing to change the average passenger weight from 150 lbs to 175 
lbs. In addition, FTA is proposing to change the floor space occupied 
per standing passenger from 1.5 to 1.75 square feet, and updating the 
Structural Strength and Distortion test procedures.

DATES: Comments must be received no later than May 13, 2011. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: You may submit comments (identified by the agency name and 
DOT Docket ID Number FTA-2011-0015) by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: For technical information, Gregory 
Rymarz, Bus Testing Program Manager, Office of Research, Demonstration, 
and Innovation (TRI), (202) 366-6410, gregory.rymarz@dot.gov. For legal 
information, Richard Wong, Office of the Chief Counsel (TCC), (202) 
366-0675, richard.wong@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

    The Federal Transit Administration (FTA) is issuing a Notice of 
Proposed Rulemaking (NPRM) to update its bus testing protocols to carry 
out the bus testing program authorized at 49 U.S.C. 5318 and 
implemented by 49 CFR part 665. On October 5, 2009, FTA published a 
Final Rule in the Federal Register (74 FR 51083) that incorporated 
brake performance and emissions tests into FTA's bus testing program as 
required by 49 U.S.C. 5318, as well as several other non-statutory 
changes that will improve the program, including the establishment of 
protocols to determine the appropriate loading of vehicles during test 
procedures and addressing buses that exceeded weight limits when fully 
loaded.
    During the comment period leading to the Final Rule, FTA received 
two comments outside the scope of the notice recommending that FTA 
increase the simulated ballast weight from the proposed 150 lbs per 
passenger provided in the definitions of ``gross vehicle weight'' and 
``seated load weight'' (the value that had been in use since the 
beginning of the program) to an amount that more accurately reflects 
the changes to the average weight of Americans over the last several 
decades. FTA acknowledged that the suggestion was well taken, but noted 
that the establishment of a more accurate average passenger weight was 
of Department-wide interest, and committed itself to initiate a new 
rulemaking to amend Part 665 only after consultations within the 
Department. FTA has consulted within the Department, and as a result of 
those consultations, is issuing this NPRM.
    In its previous rulemaking action, FTA made note of the fact that a 
number of buses tested at the Bus Testing Center had not been tested in 
their fully loaded condition (i.e., with all seats and standee 
positions occupied) because doing so would have caused their actual 
weight to exceed either their gross vehicle weight ratings (GVWR) or a 
front or rear gross axle weight rating (GAWR). Instead, buses were 
loaded to the maximum weight rating and a notation was made in the 
vehicle's final test report.
    In its earlier NPRM, FTA noted that the test data might not reflect 
the actual performance of these buses in real-life service, 
particularly during rush hour when operators frequently allow all seats 
and aisles to be filled without regard to the GVWR or GAWR to avoid 
leaving passengers behind at a stop. FTA sought comment on three 
possible approaches for addressing this situation: (1) Performing tests 
on the test track (which is not a public roadway) with all seats and 
standee positions ballasted, (2) deleting ballast until the vehicle 
does not exceed its GVWR and noting such fact in the test report (which 
had been the policy up to that time), or (3) declining to test a bus 
that exceeds its GAWR or GVWR when loaded to full capacity.
    FTA determined that declining to test a vehicle whose GVW exceeds 
its GVWR is impractical, noting that the entire purpose of the bus 
testing program is to carry out the statutory mandate of verifying that 
the bus can withstand the rigors of regular transit service, and 
testing a bus up to its GVWR but no higher, despite the inability to 
embark the equivalent of a full complement of passengers, is 
unrealistic and may not accurately reflect rush-hour operating 
conditions when every available seat is filled and drivers commonly 
allow ``crush loads'' of standees in the aisle.
    Under FTA's revised testing protocol, buses are now ballasted with 
a fully loaded passenger complement of seated and standee passengers 
during the gross vehicle weight portion and with all seats filled 
during the seated load weight portion of the testing because FTA 
believes data on how a bus performs under fully loaded conditions is 
essential to the purchaser in supporting acquisition decisions, 
developing preventive maintenance schedules, and budgeting for 
unscheduled maintenance. In addition, purchasing a vehicle appropriate 
for actual operating conditions will lessen premature structural 
fatigue and assist in avoiding catastrophic failures caused by 
overstressed and overworked structural and operational components, 
ensuring the availability of such vehicles for passenger service.
    This NPRM is based on modern scientific data. FTA's earlier 
selection of the 150 pound passenger weight assumption was based on the 
number established by FTA's sister DOT mode, the National Highway 
Traffic Safety Administration (NHTSA), in its calculation of the Gross 
Vehicle Weight Rating at 49 CFR 567.4(g)(3). Although NHTSA did not 
provide an explanation for this figure in its 1971 rulemaking 
documents, NHTSA staff believes their average was based on data derived 
from the National Health Examination Survey for 1960-1962. That survey 
has been continued by the Centers for Disease Control and Prevention 
(CDC) through the National Health and Nutrition Examination Survey 
(NHANES). In its October 22, 2008, National Health Statistics Report 
(http://www.cdc.gov/nchs/data/nhsr/nhsr010.pdf), the CDC's National 
Center for Health Statistics calculated a mean average weight of 194.7 
pounds for male adults 20 years of age and older, and a median weight

[[Page 13581]]

of 188.8 pounds. For women 20 years of age and older, the CDC 
calculated a mean weight of 164.7 pounds, and a median weight of 155.8 
pounds.
    Based on the suggestions from the commenters and confirmation using 
the statistical NHANES data from the CDC, FTA believes that 175 pounds 
is an appropriate average weight to assume for testing buses. This is 
also within the range of average passenger weights used by other 
transportation modes with regulatory authority such as the Federal 
Aviation Administration's 190 lb. summer weight and 195 lb. winter 
weight passenger weight averages (See, Advisory Circular 120-27E, 
``Aircraft Weight and Balance Control,'' June 10, 2005) and the United 
States Coast Guard's 185 lb Assumed Average Weight Per Person (See, 
``Passenger Weight and Inspected Vessel Stability Requirements: Final 
Rule, 75 FR 78064, December 14, 2010).
    Because of the increase in passenger weight, FTA is also 
commensurately proposing to increase the assumed dimensions for a 
standing passenger from 1.5 square feet of free floor space to 1.75 
square feet of free floor space to acknowledge the expanding girth of 
the average passenger. FTA also seeks comments on this figure.
    FTA wishes to emphasize that it is not proposing the increase to 
175 pounds in order to ``toughen'' the testing protocol. Rather, this 
action is being proposed in order to ensure that the Bus Testing 
protocols better reflect the actual loads that buses are already 
carrying in service today.
    To avoid conflicts with NHTSA's regulatory definition of gross 
vehicle weight in 49 CFR part 567 and elsewhere, FTA is proposing to 
remove the definition of ``gross weight'' or ``gross vehicle weight'' 
from the definitions in section 665.5 and inserting a new definition, 
``fully loaded weight,'' which incorporates the heavier and wider 
dimensions of an average bus rider. FTA is also proposing to amend 
Appendix A, Section 5, replacing ``gross weight'' and ``gross vehicle 
weight'' with ``full load weight'' when conducting the structural 
integrity portions of the test.

Grandfathering

    Similar to the approach taken by FTA in the October 2009 Final 
Rule, FTA is proposing that the date on which a bus testing contract 
was signed will determine the applicability of the new testing 
procedures. New bus models for which testing contracts were signed 
before the effective date of the final rule and that continue to be 
produced without major changes in any structure or systems will not be 
required to return to the Bus Testing Center to undergo additional 
testing using the new fully loaded weight procedures. Buses required to 
undergo full or partial testing after the effective date would be 
subjected to the new procedures.

Implementation Period

    FTA is proposing to delay the effective date of the final rule for 
one year after publication. FTA believes this will give bus 
manufacturers adequate time to review the advertised passenger 
capacities of their product lines, to identify chassis suitable for the 
advertised passenger loads, and if necessary to redesign their vehicles 
to reduce passenger capacity and/or accommodate a heavier-duty chassis. 
FTA seeks comment regarding the adequacy of the phase-in period.

Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under the authority of 49 U.S.C. 5318 and 
49 U.S.C. 1.51.

B. Executive Order 13132: Federalism

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

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

    Executive Order 13175 requires agencies to assure meaningful and 
timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. FTA has analyzed this action under Executive Order 
13175 and believes that this will not have substantial, direct effects 
on one or more Indian tribes; will not impose substantial direct 
compliance costs on Indian tribal governments; and will not preempt 
tribal laws. Therefore, a tribal impact statement is not required.

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

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

E. Executive Orders and DOT Regulatory Policies and Procedures

    FTA has determined that this action is not considered a significant 
regulatory action under Executive Order 12866 and the Regulatory 
Policies and Procedures of the Department of Transportation (44 FR 
11032). Executive Order 12866 requires agencies to regulate in the 
``most cost-effective manner,'' to make a ``reasoned determination that 
the benefits of the intended regulation justify its costs,'' and to 
develop regulations that ``impose the least burden on society.'' 
Consistent with Executive Order 13563 (76 FR 3821, January 21, 2011), 
FTA has assessed the benefits of the NPRM against potential costs, has 
attempted to minimize any potential economic burdens, has based its 
determination on modern scientific data, and provides flexibility and 
freedom of choice for the affected entities.
    The bus testing program itself is statutorily mandated and cannot 
be eliminated as a means of minimizing an economic burden. Under 49 
U.S.C. 5318, FTA funds may not be used to acquire a new bus until a bus 
of that model has completed testing at a statutorily prescribed 
facility, with approximately 15 to 20 new bus models completing testing 
every year. These buses are tested in 4-, 5-, 7-, 10-, or 12-year 
service life categories as set forth in 49 CFR 665.11(e). In preparing 
this NPRM, FTA reviewed the data from ten recent test reports and found 
that one of the buses exceeded their GVWR at their seated load weight 
using either the 150 pound figure or the 175 pound figure. When tested 
at the gross vehicle load, i.e., carrying a full complement of

[[Page 13582]]

seated and standing passengers, five bus models would have exceeded 
their GVWR using the 150 pound figure, with two more exceeding the GVWR 
using the 175 pound figure.
    Testing buses using the 175 pound figure will not result in any 
mandatory additional costs on transit vehicle manufactures or the 
public transit operators that purchase such vehicles. Rather, FTA is 
attempting to modify its testing procedures to more accurately reflect 
a bus model's expected usage based on demonstrable scientific data, 
namely, the 2008 CDC Report and the most recent bus testing reports.
    In addition to providing more accurate test data to assist buyers 
of public transit vehicles, the NPRM attempts to maximize flexibility 
and freedom of choice for transit operators who may refuse to carry 
standees to avoid exceeding a vehicle's GVWR now that the vehicle's 
carrying capacity has been identified in a test report, buyers may 
order vehicles with more durable components, or purchase a lighter-duty 
vehicle if they do not expect to carry capacity passenger loads. 
Transit vehicle manufactures similarly have the flexibility and freedom 
of choice to continue using the same components to meet buyers' needs, 
or they may choose to upgrade individual components, such as chassis, 
wheels, tires, brakes, or suspensions.
    For those manufacturers that choose to upgrade their buses to a 
more robust configuration, FTA estimates the cost of upgrading a 
vehicle's components could be as low as $2,500 per vehicle in the 4- to 
5-year paratransit-type vehicle categories, between $5,000 and $7,000 
in the minibus categories, to as high as $25,000 per vehicle in the 10- 
to 12-year full-size bus categories. But as noted above, any necessary 
upgrades are not mandated by the NPRM, but rather, would be negotiated 
between the buyer and the manufacturer. FTA notes that any cost 
increase due to a decision to upgrade components would be offset by 
FTA's financial assistance program which covers at least 80% of a 
vehicle's capital costs, minimizing any economic impact of this 
rulemaking on public transit vehicles manufacturers and their 
customers.
    This NPRM's benefits outweigh potential costs because the new 
testing protocol will allow transit agencies to more accurately 
identify vehicles that are more likely to meet service life 
expectations, advertised passenger capacities, and actual loading 
conditions. The acquisition of sturdier vehicles will decrease 
maintenance and replacement costs, ensure that vehicles meet their 
anticipated service lives, and thereby enhance the availability and 
reliability of transit vehicles for the riding public.
    Although the result of this proposed rule may have the effect of 
encouraging transit agencies to modify their specifications on future 
procurements to reflect projected passenger loads or transit vehicle 
manufacturers to upgrade vehicle components to more accurately reflect 
advertised service loads, this proposed new testing procedure rule will 
affect only data collected for those vehicles procured with FTA 
financial assistance and will not directly affect vehicles acquired 
using private funds or funds from Federal agencies other than FTA, 
although non-FTA purchasers are likely to be indirect beneficiaries 
through reviewing the publicly-available bus testing reports prior to 
purchasing their vehicles and if vehicle manufacturers decide to use 
the FTA bus testing results as a basis to upgrade components across 
their full product line.
    This action is not expected to adversely affect any sector of the 
economy. In addition, these changes will not interfere with any action 
taken or planned by another agency and will not materially alter the 
budgetary impact of any entitlements, grants, user fees, or loan 
programs.

F. Unfunded Mandates Reform Act of 1995

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

G. Executive Order 13211: Energy Effects

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

H. Paperwork Reduction Act

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

I. Regulation Identifier Number (RIN)

    The U.S. DOT assigns a regulation identifier number (RIN) to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN number contained in the 
heading of this document may be used to cross-reference this action 
with the Unified Agenda.

J. Privacy Act

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

List of Subjects in 49 CFR Part 665

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

    Accordingly, for the reasons stated in the preamble, 49 CFR part 
665 is proposed to be amended as follows:

PART 665--BUS TESTING

    1. The authority citation for part 665 continues to read as 
follows:

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

    2. Amend Sec.  665.5 as follows:
    a. By removing the definition for Gross weight, also gross vehicle 
weight;
    b. In the definition of ``Seated load weight'' by removing ``150 
pounds of ballast'' and adding in its place ``175 pounds of ballast''; 
and
    c. By adding a definition for Fully loaded weight.
    The addition reads as follows:


Sec.  665.5  Definitions.

* * * * *
    Fully loaded weight means the curb weight of the bus plus 
passengers simulated by adding 175 pounds of ballast to each seating 
position and 175 pounds for each standing position (assumed to be each 
1.75 square foot of free floor space).
* * * * *
    3. Amend Appendix A to part 665 by revising the introductory text 
and paragraphs a.(1) and (2) of section 5 to read as follows:

[[Page 13583]]

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

* * * * *

5. Structural Integrity

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

a. Structural Strength and Distortion Tests

    (1) A shakedown of the bus structure should be conducted by 
loading and unloading the bus with a distributed load equal to 2.5 
times the fully loaded weight. The bus should then be unloaded and 
inspected for any permanent deformation on the floor or coach 
structure. This test should be repeated a second time, and should be 
repeated up to one more time if the permanent deflections vary 
significantly between the first and second tests.
    (2) The bus should be loaded to its fully loaded weight, with 
one wheel on top of a curb and then in a pothole. This test should 
be repeated for all four wheels. The test verifies:
    (i) Normal operation of the steering mechanism; and
    (ii) Operability of all passenger doors, passenger escape 
mechanisms, windows, and service doors. A water leak test should be 
conducted in each suspension travel condition.
* * * * *

    Issued on: March 8, 2011.
Peter M. Rogoff,
Administrator.

[FR Doc. 2011-5831 Filed 3-11-11; 8:45 am]
BILLING CODE 4910-57-P