[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2017 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 49
Transportation
________________________
Parts 400 to 571
Revised as of October 1, 2017
Containing a codification of documents of general
applicability and future effect
As of October 1, 2017
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 49:
SUBTITLE B--Other Regulations Relating to Transportation
(Continued)
Chapter IV--Coast Guard, Department of Homeland
Security 5
Chapter V--National Highway Traffic Safety
Administration, Department of Transportation 19
Finding Aids:
Table of CFR Titles and Chapters........................ 1145
Alphabetical List of Agencies Appearing in the CFR...... 1165
List of CFR Sections Affected........................... 1175
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 49 CFR 450.1 refers
to title 49, part 450,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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LEGAL STATUS
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register.
October 1, 2017.
[[Page ix]]
THIS TITLE
Title 49--Transportation is composed of nine volumes. The parts in
these volumes are arranged in the following order: Parts 1-99, parts
100-177, parts 178-199, parts 200-299, parts 300-399, parts 400-571,
parts 572-999, parts 1000-1199, and part 1200 to end. The first volume
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
177) and the third volume (parts 178-199) contain the current
regulations issued under chapter I--Pipeline and Hazardous Materials
Safety Administration (DOT); the fourth volume (parts 200-299) contains
the current regulations issued under chapter II--Federal Railroad
Administration (DOT); the fifth volume (parts 300-399) contains the
current regulations issued under chapter III--Federal Motor Carrier
Safety Administration (DOT); the sixth volume (parts 400-571) contains
the current regulations issued under chapter IV--Coast Guard (DHS), and
some of chapter V--National Highway Traffic Safety Administration (DOT);
the seventh volume (parts 572-999) contains the rest of the regulations
issued under chapter IV, and the current regulations issued under
chapter VI--Federal Transit Administration (DOT), chapter VII--National
Railroad Passenger Corporation (AMTRAK), and chapter VIII--National
Transportation Safety Board; the eighth volume (parts 1000-1199)
contains the current regulations issued under chapter X--Surface
Transportation Board and the ninth volume (part 1200 to end) contains
the current regulations issued under chapter X--Surface Transportation
Board, chapter XI--Research and Innovative Technology Administration,
and chapter XII--Transportation Security Administration, Department of
Transportation. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 2017.
In the volume containing parts 100-177, see Sec. 172.101 for the
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards
appear in part 571.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 49--TRANSPORTATION
(This book contains parts 400 to 571)
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Part
SUBTITLE B--Other Regulations Relating to Transportation (Continued)
chapter iv--Coast Guard, Department of Homeland Security.... 450
chapter v--National Highway Traffic Safety Administration,
Department of Transportation.............................. 501
[[Page 3]]
Subtitle B--Other Regulations Relating to Transportation (Continued)
[[Page 5]]
CHAPTER IV--COAST GUARD, DEPARTMENT OF HOMELAND SECURITY
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SUBCHAPTER A [RESERVED]
SUBCHAPTER B--SAFETY APPROVAL OF CARGO CONTAINERS
Part Page
400-449 [Reserved]
450 General..................................... 7
451 Testing and approval of containers.......... 10
452 Examination of containers................... 13
453 Control and enforcement..................... 16
454-499 [Reserved]
[[Page 7]]
SUBCHAPTER A [RESERVED]
SUBCHAPTER B_SAFETY APPROVAL OF CARGO CONTAINERS
PARTS 400 449 [RESERVED]
PART 450_GENERAL--Table of Contents
Subpart A_General Provisions
Sec.
450.1 Purpose.
450.3 Definitions.
450.5 General requirements and applicability.
450.7 Marking.
Subpart B_Procedures for Delegation to Approval Authorities
450.11 Application for delegation of authority.
450.12 Criteria for selection of Approval Authorities.
450.13 Granting of delegation.
450.14 Conditions of delegation.
450.15 Termination of delegation.
450.16 Withdrawal of delegation.
Authority: 46 U.S.C. 80503; Department of Homeland Security
Delegation No. 0170.1.
Editorial Note: Nomenclature changes to part 450 appear at 74 FR
49241, Sept. 25, 2009, and at 77 FR 59790, Oct. 1, 2012.
Subpart A_General Provisions
Sec. 450.1 Purpose.
This subchapter establishes requirements and procedures for safety
approval and periodic examination of cargo containers used in
international transport, as defined in the International Safe Container
Act.
[45 FR 37213, June 2, 1980]
Sec. 450.3 Definitions.
(a) In this subchapter: (1) Approval Authority means a delegate of
the Commandant authorized to approve containers within the terms of the
convention, the International Safe Container Act and this subchapter.
(2) Container means an article of transport equipment:
(i) Of a permanent character and suitable for a repeated use.
(ii) Specially design to facilitate the transport of goods, by one
or more modes of transport, without intermediate reloading.
(iii) Designed to be secured and readily handled, having corner
fittings for these purposes.
(iv) Of a size that the area enclosed by the four outer bottom
corners is either:
(A) At least 14 sq.m. (150 sq.ft.), or
(B) At least 7 sq.m. (75 sq.ft.) if it has top corner fittings.
(v) The term container includes neither vehicles nor packaging;
however, containers when carried on chassis are included.
(3) Convention means the International Convention for Safe
Containers (CSC) done at Geneva, December 2, 1972 and ratified by the
United States on January 3, 1978.
(4) District Commander means the Coast Guard officer designated by
the Commandant to command a Coast Guard District.
(5) New Container means a container, the construction of which began
on or after September 6, 1977.
(6) Existing Container means a container that is not a new
container.
[45 FR 37213, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004]
Sec. 450.5 General requirements and applicability.
(a) Every owner of a new or existing container used or offered for
movement in international transport shall have the container approved in
accordance with the procedures established by the Administration of any
contracting party to the convention, except that existing containers
need not be approved until September 6, 1982.
(b) Every owner of an approved container used or offered for
movement in international transport who:
(1) Is domiciled in the United States and has the head office in the
United States, or
(2) Is domiciled in a country which is not a contracting party to
the convention but has the principal office in the
[[Page 8]]
United States, shall have the container periodically examined in
accordance with part 452 of this subchapter.
(c) Every owner of an approved container used or offered for
movement in international transport who:
(1) Is domiciled in the United States but has the principal office
in the jurisdiction of another contracting party to the convention, or
(2) Is domiciled in the jurisdiction of another contracting party to
the convention but has the principal office in the United States, but
elects to have the container examined in accordance with the procedures
prescribed by the United States, shall conform to part 452 of this
subchapter.
(d) Every owner of an approved container used or offered for
movement in international transport who is neither domiciled in nor has
the principal office in the jurisdiction of a contracting party to the
convention, but elects to have the container examined in accordance with
procedures prescribed by the United States, shall conform to part 452 of
this subchapter.
[45 FR 37213, June 2, 1980]
Sec. 450.7 Marking.
(a) On each container that construction begins on or after January
1, 1984, all maximum gross weight markings on the container must be
consistent with the maximum gross weight information on the safety
approval plate.
(b) On each container that construction begins before January 1,
1984, all maximum gross weight markings on the container must be
consistent with the gross weight information on the safety approval
plate no later than January 1, 1989.
(Approved by the Office of Management and Budget under OMB control
number 1625-0024)
[49 FR 15562, Apr. 19, 1984, as amended at 71 FR 55747, Sept. 25, 2006]
Subpart B_Procedure for Delegation to Approval Authorities
Sec. 450.11 Application for delegation of authority.
(a) Any person or organization seeking delegation of authority to
act as an Approval Authority may apply to the Commandant (CG-OES), Attn:
Office of Operating and Environmental Standards, U.S. Coast Guard Stop
7509, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7509.
Each application must be signed and certified by the applicant or, if
the applicant is an organization, by an authorized officer of the
organization. A list of delegated approval authorities may be obtained
from the Commandant (CG-OES).
(b) The application must include the following information:
(1) Name and address, including place of incorporation, if a
corporation.
(2) A description of the organization, including the ownership,
managerial structure, organizational components and directly affiliated
agencies and their functions utilized for supporting technical services.
(3) A listing of the basic technical services offered.
(4) A general description of the geographic area served.
(5) A general description of the clients being served or intended to
be served.
(6) A description of the types of work performed by the applicant in
the past, noting the amount and extent of such work performed within the
previous three years.
(7) A description of the personnel to be utilized, indicating
general background and qualifications, particularly for the surveyors to
be involved in the actual witnessing of tests.
(8) A description of its means of assuring continued competence of
its personnel.
(9) A detailed schedule of the fees proposed to be charged for the
approval service.
(10) Evidence of financial stability.
(11) At least three business references who will furnish information
regarding work performed by the applicant.
(12) A statement that the Coast Guard may inspect the applicant's
facilities and records of approvals under the convention and these
regulations.
(c) The application may contain any additional information the
applicant deems to be pertinent.
(d) The applicant must furnish any additional information to
evaluate the applicant's qualifications, if requested by the Chief,
Office of Operating and
[[Page 9]]
Environmental Standards (CG-OES), U.S. Coast Guard.
(e) Applications from foreign nationals or organizations must
contain an affidavit stating that the agency responsible for
implementing the Convention in their country has delegated to the
applicant an approval authority, and that it also delegates similar
authority to United States citizens or organizations having delegations
from the United States. The affidavit must also contain the name and
address of the agency to which U.S. citizens or organizations must apply
for delegation as an approval authority.
[45 FR 37213, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004; 74 FR 49241, Sept. 25, 2009; 78 FR 60165,
Sept. 30, 2013]
Sec. 450.12 Criteria for selection of Approval Authorities.
(a) The Chief, Office of Operating and Environmental Standards (CG-
OES), U.S. Coast Guard selects persons or organizations in accordance
with the following criteria:
(1) The person or organization is independent of manufacturers and
owners in that:
(i) It has sufficient breadth of interest or activity, so that the
loss or award of a specific contract to approve containers would not be
a substantial factor in the financial well-being of the organization.
(ii) The employment status of the personnel of the organization is
free from influence or control of manufacturers, owners, operators or
lessors of containers.
(2) The person or organization has demonstrated the ability to
competently carry out the procedures required for approval.
(3) The person or organization has an acceptable degree of financial
security.
[45 FR 37213, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004]
Sec. 450.13 Granting of delegation.
(a) The Chief, Office of Operating and Environmental Standards (CG-
OES), U.S. Coast Guard acts on applications for delegation within 60
days of receipt.
(b) If an applicant for delegation does not provide sufficient
information with regard to all the criteria for delegation, the Chief,
Office of Operating and Environmental Standards (CG-OES), U.S. Coast
Guard denies the application. A denial of an application on this basis
is without prejudice to the submission of a new or amended application.
(c) If an applicant satisfies all the criteria for delegation the
Chief, Office of Operating and Environmental Standards (CG-OES), U.S.
Coast Guard sends the applicant a letter of delegation, and assigns to
the Approval Authority an alphabetic Approval Authority identification
code.
(d) If an applicant fails to satisfy all the criteria for
delegation, the Chief, Office of Operating and Environmental Standards
(CG-OES), U.S. Coast Guard gives the applicant written notice of denial
of his application. The notice contains all the reasons for the denial.
The applicant may contest the denial by submitting additional oral or
written evidence in support of its qualifications. Upon review of the
evidence, the Chief, Office of Operating and Environmental Standards
(CG-OES), U.S. Coast Guard notifies the applicant of the final decision.
[45 FR 37213, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004]
Sec. 450.14 Conditions of delegation.
(a) The following conditions are part of every delegation:
(1) The Approval Authority shall use only testing equipment that it
has determined by inspection to be suitable for the purpose.
(2) All approval numbers issued by the Approval Authority must
contain the identification code, assigned to the Approval Authority by
the Chief, Office of Operating and Environmental Standards (CG-OES),
U.S. Coast Guard.
(3) Each Approval Authority shall maintain the following records for
a period of at least 15 years from the date of approval. (When the
Approval Authority's delegation is withdrawn before such time, the
records relating to the approvals issued within the prior 15 years must
be turned over to the Chief, Office of Operating and Environmental
Standards (CG-OES), U.S. Coast Guard):
[[Page 10]]
(i) Each notice of approval issued.
(ii) A copy of the application and final approved drawings (if
applicable) to which each approval refers.
(iii) The manufacturer's serial numbers and the owner's
identification numbers of all containers covered by each approval.
(4) Each Approval Authority shall establish and make available to
the public a schedule of fees for the approval services performed under
these regulations. The fees must not be disproportionate to the costs
(including transportation expense, if any) actually incurred.
(5) The Approval Authority shall grant the Coast Guard the right to
inspect records and shall cooperate in the conduct of such inspections.
(6) The Approval Authority shall comply with any other term or
condition stated in its letter of delegation.
[45 FR 37213, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004]
Sec. 450.15 Termination of delegation.
(a) An Approval Authority may voluntarily terminate its delegation
by giving written notice of its intent to the Chief, Office of Operating
and Environmental Standards (CG-OES), U.S. Coast Guard. This notice must
contain the date on which the termination is to be effective.
[45 FR 37213, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004]
Sec. 450.16 Withdrawal of delegation.
(a) The Chief, Office of Operating and Environmental Standards (CG-
OES), U.S. Coast Guard withdraws a delegation if: (1) It is determined
that the application for delegation contained a material
misrepresentation.
(2) An Approval Authority fails to comply with a condition of
delegation.
(3) An Approval Authority is incompetent.
(b) When a delegation is withdrawn, the Chief, Office of Operating
and Environmental Standards (CG-OES), U.S. Coast Guard gives to the
Approval Authority:
(1) Written notice of the facts or conduct believed to warrant the
withdrawal.
(2) Opportunity to submit oral or written evidence.
(3) Opportunity to demonstrate or achieve compliance with the
applicable requirement.
[45 FR 37213, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004]
PART 451_TESTING AND APPROVAL OF CONTAINERS--Table of Contents
Subpart A_Approval of Existing Containers
Sec.
451.1 Application for approval.
451.3 Action by Approval Authority.
451.5 Resubmission or appeal.
451.7 Alternative approval of existing containers.
Subpart B_Approval of New Containers
451.11 Application for approval-general.
451.12 Application for approval by design type.
451.13 Action by approval authority-approval by design type.
451.14 Alternative approval of new containers by design type.
451.15 Application for individual approval.
451.16 Action by approval authority-individual approval.
451.18 Review of denials of approval.
Subpart C_Safety Approval Plate
451.21 Safety approval plate required.
451.23 Plate specifications.
451.25 Required information.
Authority: 46 U.S.C. 80503; Department of Homeland Security
Delegation No. 0170.1.
Source: 45 FR 37214, June 2, 1980, unless otherwise noted.
Editorial Note: Nomenclature changes to part 451 appear at 74 FR
49241, Sept. 25, 2009, and at 77 FR 59790, Oct. 1, 2012.
Subpart A_Approval of Existing Containers
Sec. 451.1 Application for approval.
(a) Any owner of an existing container may apply for approval to the
Commandant (CG-OES), Attn: Office of Operating and Environmental
Standards, U.S. Coast Guard Stop 7509, 2703 Martin Luther King Jr.
Avenue SE., Washington, DC 20593-7509 or to any Approval Authority.
(b) Each application must include the following for each container:
[[Page 11]]
(1) Date and place of manufacture.
(2) Manufacturer's identification number, if available.
(3) Maximum operating gross weight capacity.
(4) Allowable stacking weight for 1.8G (1.8 x Gross weight in
kilograms or pounds).
Note: This value is the total load the container is designed to
support when subjected to a vertical acceleration of 1.8G.
(5) A statement that the owner possesses documentary evidence that:
(i) Container of this type has been safely used in marine or inland
transport for a period of at least two years; or
(ii) The container was manufactured to a design type which had been
tested and found to comply with the technical conditions set out in
Annex II to the convention with the exception of those technical
conditions relating to the end-wall and side-wall strength tests; or
(iii) The container was constructed to standards that were
equivalent to the technical conditions set out in Annex II to the
convention with the exception of those technical conditions relating to
end-wall and side-wall strength tests.
(6) A certification by the owner, or, if the owner is a corporation,
partnership or unincorporated association, by a person authorized to
make such statements for the organization, that the information provided
in the application is true and correct.
[45 FR 37214, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004; 74 FR 49241, Sept. 25, 2009; 78 FR 60166,
Sept. 30, 2013]
Sec. 451.3 Action by Approval Authority.
(a) The Approval Authority (or the Chief, Office of Operating and
Environmental Standards (CG-OES), U.S. Coast Guard, if the application
was submitted to the Coast Guard) issues to the owner a notice of
approval or notifies the owner in writing that approval is denied,
setting forth the deficiencies causing denial. Notification of approval
entitles the owner to affix a safety approval plate to each container
after an examination of each container concerned has been carried out in
accordance with part 452 of this subchapter. In the case of an
application submitted to the Coast Guard, the Chief, Office of Operating
and Environmental Standards (CG-OES), U.S. Coast Guard acts on the
application within 30 days of receipt of the application.
[45 FR 37214, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004]
Sec. 451.5 Resubmission or appeal.
(a) Upon receipt of a denial of approval for certain containers, an
owner may correct the noted deficiencies and resubmit the application
without prejudice.
(b) An applicant aggrieved by a decision of an approval authority
may obtain review of the decision by the Chief, Office of Operating and
Environmental Standards (CG-OES), U.S. Coast Guard. The decision of the
Chief, Office of Operating and Environmental Standards (CG-OES), U.S.
Coast Guard is a final agency action.
[45 FR 37214, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58352, Sept. 30, 2004]
Sec. 451.7 Alternative approval of existing containers.
(a) Existing containers that do not qualify for approval under this
subpart may be presented for approval under the provisions of subpart B
of this part. For such containers, the requirements of subpart B of this
part, relating to the end and sidewall strength tests, do not apply.
Upon showing that the containers have performed satisfactorily in
service, the applicant may omit the presentation of drawings and
testing, other than the lifting and floor strength test, if permitted by
the approval authority.
[45 FR 37214, June 2, 1980, as amended at 69 FR 58352, Sept. 30, 2004]
Subpart B_Approval of New Containers
Sec. 451.11 Application for approval-general.
(a) An owner of a new container, or a manufacturer acting on behalf
of an
[[Page 12]]
owner, may apply for approval to any approval authority.
Sec. 451.12 Application for approval by design type.
(a) For approval of new containers by design type, each application
must include the following:
(1) Engineering drawings and plans showing platform, end framing,
welds and hardware, connections of cross-members, top and bottom rails,
roof bows, detailed subassemblies of major structural components and
attachments, and any other plans and drawings required by the approval
authority.
(2) Design and material specifications including type and size of
materials. Material specifications of the safety approval plate must
also be given.
(3) The manufacturer's identification number assigned to each
container in the type series.
(4) The identification code assigned to each container in the series
by the owner, lessee, or bailee responsible for maintenance.
(5) The written assurance from the manufacturer, that the
manufacturer will:
(i) Produce to the approval authority such containers as the
approval authority may wish to examine;
(ii) Advise the approval authority of any change in the design or
specification and await its approval before affixing the Safety Approval
Plate to the container;
(iii) Affix the Safety Approval Plate to each container in the
design type and to no others;
(iv) Keep a record of containers manufactured to the approved design
type containing at least the manufacturer's identification numbers, date
of delivery, and names and addresses of customers to whom the containers
are delivered; and
(v) Supply to the approval authority the information contained in
paragraphs (a)(3) and (4) of this section if not available at the time
of original application.
(6) A statement as to whether this design type has been examined by
any approval authority previously and judged unacceptable. Affirmative
statements must be documented with the name of the approving authority,
the reason for nonacceptance, and the nature of modifications made to
the design type.
[45 FR 37214, June 2, 1980, as amended at 69 FR 58353, Sept. 30, 2004]
Sec. 451.13 Action by approval authority-approval by design type.
(a) The approval authority arranges with the manufacturer, with
notification to the owner, to witness the prototype tests required by
the convention, and to examine any number of containers that the
approval authority considers appropriate. Upon witnessing successful
completion of prototype tests and examination of several containers the
approval authority issues to the owner, a notice of approval which
authorizes the attachment of safety approval plates to the containers.
Absence of individual inspections will not relieve the manufacturer of
any responsibility to maintain proper quality control. If a prototype
container fails to pass the tests, the approval authority may require
testing of as many further representative containers as necessary to
ensure the adequacy of the design.
Sec. 451.14 Alternative approval of new containers by design type.
(a) New containers manufactured before June 16, 1978 without being
approved under the preceding section may be approved by submission to an
approval authority of an application corresponding to that required
under Sec. 451.1(b) for existing containers. All new containers so
approved must have safety approval plates affixed and receive their
first periodic examination in accordance with the procedures prescribed
in Sec. 452.3 by January 1, 1985.
[47 FR 50496, Nov. 8, 1982]
Sec. 451.15 Application for individual approval.
(a) For approval of new containers by individual approval, each
application must include the following:
(1) The manufacturer's identification number.
(2) The identification code of the owner, lessee, or bailee
responsible for maintenance of the container.
[[Page 13]]
Sec. 451.16 Action by approval authority-individual approval.
(a) The approval authority arranges with the manufacturer or owner
to witness testing in accordance with Annex II to the convention. Upon
witnessing successful completion of the tests, the approval authority
issues to the owner a notice of approval that authorizes the attachment
of a safety approval plate.
Sec. 451.18 Review of denials of approval.
(a) An applicant aggrieved by a decision of an approval authority
may obtain review of the decision by the Chief, Office of Operating and
Environmental Standards (CG-OES), U.S. Coast Guard. The decision of the
Chief, Office of Operating and Environmental Standards (CG-OES), U.S.
Coast Guard is a final agency action.
[45 FR 37214, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58353, Sept. 30, 2004]
Subpart C_Safety Approval Plate
Sec. 451.21 Safety approval plate required.
(a) The safety approval plate must be supplied by the owner or
manufacturer.
Sec. 451.23 Plate specifications.
(a) The safety approval plate must be of the size and in the format
specified in the appendix to Annex I to the convention.
(b) The safety approval plate must be:
(1) Designed to withstand and remain legible after a 15 minute
exposure to a medium intensity fire producing a temperature of 1,000
deg.F (540 deg.C), when mounted on the specified material of
construction of the container.
(2) Designed to resist the corrosive effects of its environment,
both at sea and ashore, so as to remain legible for the working life of
the container.
(3) Designed to have a legible life expectancy equal to or greater
than the life expectancy of the container to which the plate is affixed.
Sec. 451.25 Required information.
(a) The safety approval number appearing on line 1 of the safety
approval plate must be of the form ``USA/(approval number, which
includes the approval authority identification code)/(year in which
approval was granted).''
(b) The date upon which approval was granted must be the same for
all containers of a design-type or type-series covered by one notice of
approval.
(c) The safety approval number must be the same for all containers
of a design-type or type-series covered by one notice of approval.
(d) The owner's International Organization for Standardization (ISO)
alpha numeric identification numbers may be used in place of the
manufacturer's identification numbers on line 3 of the safety approval
plate. If owner's identification numbers are used and the manufacturer's
are available, the owner shall keep records correlating the owner's
identification numbers used with the manufacturer's number. If a
container marked with owner's identification numbers changes ownership,
and the owner's identification number is changed as a result, the new
owner must add the new owner's identification number, following the
original owner's identification number on line 3 of the safety approval
plate. In the event that the new owner's identification number cannot be
legibly added to line 3 of the safety approval plate following the
original owner's identification number, the new owner is authorized to
put a new safety approval plate on the freight container provided that
all the information contained on the original safety approval plate is
retained in the owners files.
PART 452_EXAMINATION OF CONTAINERS--Table of Contents
Sec.
452.1 Periodic examination required.
452.3 Elements of periodic examinations.
452.5 Examinations made in conjunction with other inspections.
452.7 Continuous examination program.
452.9 Elements of a continuous examination program.
Authority: 46 U.S.C. 80503; Department of Homeland Security
Delegation No. 0170.1.
Sec. 452.1 Periodic examination required.
(a) Except as provided for in Sec. 452.7, each owner of an approved
container
[[Page 14]]
subject to this part shall examine the container or have it examined in
accordance with the procedures prescribed in Sec. 452.3 at intervals of
not more than 30 months, except that for containers approved as new
containers, the interval from the date of manufacture to the date of the
first examination must not exceed five years. For containers approved,
examined and plated as existing containers before January 1, 1985 and
containers approved and plated as new containers before January 1, 1985,
the subsequent examination must be carried out in accordance with the
following schedule:
------------------------------------------------------------------------
Date of initial plating Subsequent examination
------------------------------------------------------------------------
Existing containers before Sept. 30, 1981 Before Jan. 1986.
and new containers before Dec. 31, 1978.
Existing containers between Oct. 1, 1981 Before May 1986.
and Sept. 30, 1982 and new containers
between Jan. 1, 1979 and Dec. 31, 1979.
Existing containers between Oct. 1, 1982 Before Sept. 1986.
and Sept. 30, 1983 and new containers
between Jan. 1, 1980 and Dec. 31, 1980.
Existing containers between Oct. 1, 1983 Before Jan. 1987.
and Dec. 31, 1984 and new containers
between Jan. 1, 1981 and Dec. 31, 1981.
------------------------------------------------------------------------
Note: Containers plated under Sec. 451.14 are considered existing
containers in the above schedule.
(b) Upon completion of an examination required by this part, the
owner shall mark on the safety approval plate, or on the container
itself as close as practicable to the safety approval plate, the month
and year before which the container must next be examined. This marking
must be on all containers by January 1, 1987. The marking may be by a
decal, sticker, stencil, or other means so long as it is capable of
remaining legible for at least 24 months. Affixing such a marking to a
container that has not been examined in accordance with Sec. 452.3
constitutes a misrepresentation in a matter within the jurisdiction of
an agency of the United States, and makes the owner punishable under 18
U.S.C. 1001.
(c) The owner of containers subject to this section shall have those
containers examined in accordance with the program prescribed in this
section regardless of whether the examinations are preformed within or
outside the United States.
[45 FR 37216, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 49
FR 15562, Apr. 19, 1984; 69 FR 58353, Sept. 30, 2004]
Sec. 452.3 Elements of periodic examinations.
(a) Periodic examinations required by Sec. 452.1 must conform to
the following minimum requirements:
(1) Each examination must include a detailed visual inspection for
defects such as cracks, failures, corrosion, missing or deteriorated
fasteners, and any other safety related deficiency or damage which could
place any person in danger. Any such deficiencies disclosed by the
examination must be corrected by the owner before the container is
continued in service.
(2) Each examination must take into account the particular
characteristics of various kinds of containers and materials of
construction.
(3) Each examination must be performed by qualified personnel,
trained and experienced in the detection of container structural damage.
(4) The examinations must be scheduled so as to allow adequate time
for thorough performance.
(5) Each examination must apply owner established or industry
accepted pass/fail criteria to determine whether a container has any
deficiency that must be remedied before the container is returned to
service.
(b) Examinations must be documented, and the records retained by the
owner, until the next examination is completed and recorded. The records
must include, in addition to identification of the container, a record
of the date of last examination and a means of identifying the examiner.
The records must be maintained in an office under the control of the
owner and be made available for inspection by the Coast Guard upon
demand. If the original records are maintained outside the United
States, its territories or possessions, supplementary records must be
available in written or data processing form to be produced on demand of
the Commandant or his representative.
[45 FR 37216, June 2, 1980, as amended at 69 FR 58353, Sept. 30, 2004]
[[Page 15]]
Sec. 452.5 Examinations made in conjunction with other inspections.
(a) Periodic examinations may be made in conjunction with or as part
of routine change-of-custody inspections, or in any other manner
convenient to the owner so long as the examinations conform to the
requirements of Sec. 452.3.
[45 FR 37216, June 2, 1980]
Sec. 452.7 Continuous examination program.
(a) In lieu of a periodic examination under Sec. 452.1, each owner
of an approved container meeting Sec. 450.5 may examine the container
or have it examined using an approved continuous examination program. An
owner must submit the continuous examination program for approval to the
Commandant (CG-OES), Attn: Office of Operating and Environmental
Standards, U.S. Coast Guard Stop 7509, 2703 Martin Luther King Jr.
Avenue SE., Washington, DC 20593-7509. When submitting a continuous
examination program for approval the owner must show the continuous
examination complies with Sec. 452.9.
(b) The owner must mark the container with the letters ``ACEP/USA/
(year continuous examination program is approved)'' to indicate the
container is being periodically examined under an approved continuous
examination program. This marking must be as close as practicable to the
safety approval plate. This marking must be on all containers covered by
a continuous examination program by January 1, 1987.
(c) The owner of containers subject to this section shall have those
containers examined in accordance with the program prescribed in this
section regardless of whether the examinations are performed within or
outside the United States.
(The information collection requirements contained in paragraphs (a) and
(b) have been approved by the Office of Management and Budget under OMB
control number 1625-0024)
[49 FR 15562, Apr. 19, 1984, as amended at 69 FR 58353, Sept. 30, 2004;
74 FR 49241, Sept. 25, 2009; 74 FR 49241, Sept. 25, 2009; 77 FR 59790,
Oct. 1, 2012; 78 FR 60166, Sept. 30, 2013]
Sec. 452.9 Elements of a continuous examination program.
(a) Examinations required by Sec. 452.7 must conform to the
following minimum requirements:
(1) A thorough examination that must include a detailed visual
inspection for defects such as cracks, failures, corrosion, missing or
deteriorated fasteners, and any other safety related deficiency or
damage that could place any person in danger. Any such deficiencies
disclosed by the examination must be corrected by the owner before the
container is continued in service. A thorough examination must be done
each time a container undergoes a major repair, refurbishment or on-
hire/off-hire interchange. In no case is the time period between
thorough examinations to exceed 30 months.
(2) Each thorough examination must be performed by qualified
personnel, trained and experienced in the detection of container
structural damage.
(3) Each thorough examination must apply owner established or
industry accepted pass/fail criteria to determine whether a container
has any deficiency that must be remedied before the container is
returned to service.
(b) Thorough examinations must be documented, and the records
retained by the owner, until the next examination is completed and
recorded. The records must include, in addition to identification of the
container, a record of the date of last examination and a means of
identifying the examiner. The records must be maintained in an office
under the control of the owner and be made available for inspection by
the Coast Guard upon demand. If the original records are maintained
outside the United States, its territories or possessions, supplementary
records must be available in written or data processing form to be
produced on demand of the Commandant or his representative.
(The information collection requirements contained in paragraph (b) have
been approved by the Office of Management and Budget under OMB control
number 1625-0024)
[49 FR 15562, Apr. 19, 1984, as amended at 69 FR 58353, Sept. 30, 2004]
[[Page 16]]
PART 453_CONTROL AND ENFORCEMENT--Table of Contents
Sec.
453.1 Unsafe and noncomplying containers subject to detention or
control.
453.3 Detention orders and other orders.
453.5 Termination of detention orders and other orders.
453.7 Appeal provisions.
Authority: 46 U.S.C. 80503; Department of Homeland Security
Delegation No. 0170.1.
Editorial Note: Nomenclature changes to part 453 appear at 74 FR
49241, Sept. 25, 2009.
Sec. 453.1 Unsafe and noncomplying containers subject to detention
or control.
(a) Any container used in or offered for movement in international
transport which does not have a valid safety approval plate attached to
it is subject to detention or other control by a District Commander or
Captain of the Port. However, upon receipt of evidence that a container
which does not have a valid safety approval plate attached to it meets
the standards of the convention, the District Commander or Captain of
the Port may authorize limited movement of such container under
conditions he deems appropriate. This paragraph becomes effective on
January 3, 1979 for new containers and on January 1, 1985 for existing
containers.
(b) If a District Commander or Captain of the Port finds that a
container used in or offered for movement in international transport,
even though it has a valid safety approval plate attached to it, is in a
condition that creates an obvious risk to safety, he issues a detention
order causing the container to be removed from service until it is
restored to a safe condition. In addition to removing a container from
transport, a detention order may require any special handling, including
unloading prior to movement, necessary to ensure safety.
(c) If a District Commander or Captain of the Port finds that a
container used or offered for movement in international transport has
not been timely examined, the District Commander or Captain of the Port
affixes to the container, at a place on the container where it will be
readily noticeable to anyone loading or unloading the container, a mark
or tag indicating that the container must be examined before being
reloaded and again used in international transport. The mark or tag
affixed by the District Commander or Captain of the Port indicates the
place and the date on which it was affixed, and is capable of remaining
legible and in place for at least 12 months. Such mark or tag must not
be removed until the container is examined in accordance with Sec.
452.3 of this subchapter. If a District Commander or Captain of the Port
finds that container marked or tagged as provided for in this paragraph
was reloaded and used or offered for movement in international transport
without having been examined, the District Commander or Captain of the
Port issues a detention order causing the container to be removed from
service until it is brought into compliance.
[45 FR 37217, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982]
Sec. 453.3 Detention orders and other orders.
(a) The terms of any detention order or other order issued under
Sec. 453.1, to the maximum extent practicable, make provisions to avoid
loss or damage to cargo.
(b) Written notice of any detention order or other order issued
under Sec. 453.1 is given immediately to the terminal operator,
stevedore, or other person having actual control over the container
involved. Prompt notification is also given to the owner of the
container, or his agent. The notification identifies the container
involved, its location, and describes the condition which gave rise to
the order.
[45 FR 37217, June 2, 1980]
Sec. 453.5 Termination of detention orders and other orders.
(a) When a container, which is the subject of a detention order or
other order, is restored to a safe condition or otherwise brought into
compliance, it must be examined in accordance with Sec. 452.3 and a new
re-examination date marked on the container in accordance with Sec.
452.1(b) of this subchapter.
(b) The owner or the owner's agent shall notify the District
Commander or
[[Page 17]]
Captain of the Port who issue the order, in writing, that the container
has been brought into compliance. Upon giving such notice, the owner, or
his agent, may return the container to service.
[45 FR 37217, June 2, 1980]
Sec. 453.7 Appeal provisions.
(a) The owner, his agent, or the custodian of a container subject to
a detention order or other order, may petition the Chief, Office of
Operating and Environmental Standards (CG-OES), U.S. Coast Guard to
review that order.
(b) The Chief, Office of Operating and Environmental Standards (CG-
OES), U.S. Coast Guard requires independent surveys to determine the
extent of deficiencies, if necessary. Upon completion of his review,
including review of the results of any required independent surveys, the
Chief, Office of Operating and Environmental Standards (CG-OES), U.S.
Coast Guard affirms, sets aside, or modifies the order.
(c) The owner of a container is liable for any costs incident to a
petition for review including any independent surveys, and for any other
costs incident to or resulting from detention or other control of a
container.
(d) Unless otherwise determined by the Chief, Office of Operating
and Environmental Standards (CG-OES), U.S. Coast Guard, a detention
order or other order remains in effect pending the outcome of any
petition or appeal of that order.
(e) The Chief, Office of Operating and Environmental Standards (CG-
OES), U.S. Coast Guard acts on all appeals within ten days of receipt.
[45 FR 37217, June 2, 1980, as amended at 47 FR 50496, Nov. 8, 1982; 69
FR 58353, Sept. 30, 2004; 77 FR 59790, Oct. 1, 2012]
PARTS 454 499 [RESERVED]
[[Page 19]]
CHAPTER V--NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION
--------------------------------------------------------------------
Part Page
500 [Reserved]
501 Organization and delegation of powers and
duties.................................. 21
509 OMB control numbers for information
collection requirements................. 27
510 Information gathering powers................ 28
511 Adjudicative procedures..................... 34
512 Confidential business information........... 60
520 Procedures for considering environmental
impacts................................. 68
523 Vehicle classification...................... 85
525 Exemptions from average fuel economy
standards............................... 90
526 Petitions and plans for relief under the
Automobile Fuel Efficiency Act of 1980.. 94
529 Manufacturers of multistage automobiles..... 96
531 Passenger automobile average fuel economy
standards............................... 99
533 Light truck fuel economy standards.......... 108
534 Rights and responsibilities of manufacturers
in the context of changes in corporate
relationships........................... 115
535 Medium- and heavy-duty vehicle fuel
efficiency program...................... 118
536 Transfer and trading of fuel economy credits 178
537 Automotive fuel economy reports............. 184
538 Manufacturing incentives for alternative
fuel vehicles........................... 192
541 Federal motor vehicle theft prevention
standard................................ 194
542 Procedures for selecting light duty truck
lines to be covered by the theft
prevention standard..................... 203
543 Exemption from vehicle theft prevention
standard................................ 205
545 Federal motor vehicle theft prevention
standard phase-in and small-volume line
reporting requirements.................. 209
551 Procedural rules............................ 211
[[Page 20]]
552 Petitions for rulemaking, defect, and
noncompliance orders.................... 218
553 Rulemaking procedures....................... 222
554 Standards enforcement and defects
investigation........................... 234
555 Temporary exemption from motor vehicle
safety and bumper standards............. 236
556 Exemption for inconsequential defect or
noncompliance........................... 243
557 Petitions for hearings on notification and
remedy of defects....................... 245
562 Lighting and marking of agricultural
equipment............................... 246
563 Event data recorders........................ 247
564 Replaceable light source and sealed beam
headlamp information.................... 258
565 Vehicle identification number (VIN)
requirements............................ 262
566 Manufacturer identification................. 274
567 Certification............................... 275
568 Vehicles manufactured in two or more
stages--All incomplete, intermediate and
final-stage manufacturers of vehicles
manufactured in two or more stages...... 282
569 Regrooved tires............................. 284
570 Vehicle in use inspection standards......... 285
571 Federal motor vehicle safety standards...... 296
[[Page 21]]
PART 500 [RESERVED]
PART 501_ORGANIZATION AND DELEGATION OF POWERS AND DUTIES--
Table of Contents
Sec.
501.1 Purpose.
501.2 General.
501.3 Organization and general responsibilities.
501.4 Succession to Administrator.
501.5 Exercise of authority.
501.6 Secretary's reservations of authority.
501.7 Administrator's reservations of authority.
501.8 Delegations.
Authority: 49 U.S.C. 105 and 322, and delegations of authority at 49
CFR 1.81 and 1.95.
Source: 81 FR 5938, Feb. 4, 2016, unless otherwise noted.
Sec. 501.1 Purpose.
This part describes the organization of the National Highway Traffic
Safety Administration (NHTSA), an operating administration within the
U.S. Department of Transportation, and provides for the performance of
duties imposed on, and the exercise of powers vested in, the
Administrator of NHTSA.
Sec. 501.2 General.
The responsibilities and authorities delegated to NHTSA and the
Administrator are set forth in Sec. Sec. 1.81, 1.94, and 1.95 of this
title.
Sec. 501.3 Organization and general responsibilities.
NHTSA consists of a headquarters organization located in Washington,
DC, a unified field organization consisting of ten geographic regions
with a Regional Office located in each region, the Vehicle Research and
Test Center located in East Liberty, Ohio, and the Uniform Tire Quality
Grading Test Facility located in San Angelo, Texas. The organization of,
and general spheres of responsibility within, NHTSA are as follows:
(a) Office of the Administrator--(1) Administrator. (i) Represents
the Department and is the principal advisor to the Secretary in all
matters related to 49 U.S.C. chapters 301, 303, 321, 323, 325, 327, 329
and 331; 23 U.S.C. chapter 4, except section 409; 23 U.S.C. 153, 154,
158, 161, 163, 164 and 313 (with respect to matters within the primary
responsibility of NHTSA); and such other responsibilities and
authorities as are delegated by the Secretary of Transportation (49 CFR
1.94 and 1.95);
(ii) Establishes NHTSA program policies, objectives, and priorities
and directs the development of action plans to accomplish the NHTSA
mission;
(iii) Directs, controls, and evaluates the organization, program
activities, performance of NHTSA staff, program and field offices;
(iv) Approves broad legislative, budgetary, fiscal and program
proposals and plans; and
(v) Takes management actions of major significance, such as those
relating to changes in basic organizational structure, appointment of
key personnel, allocation of resources, and matters of special political
or public interest or sensitivity.
(2) Deputy Administrator. Assists the Administrator in discharging
responsibilities. Directs and coordinates the Administration's
management and operational programs, and related policies and procedures
at headquarters and in the field.
(3) Executive Director. As the principal advisor to the
Administrator and Deputy Administrator, provides direction on internal
management and mission support programs. Provides executive direction
over the Associate Administrators, Chief Financial Officer, and Chief
Information Officer.
(4) Director, Office of Civil Rights. As the principal advisor to
the Administrator and Deputy Administrator on all matters pertaining to
civil rights, serves as Director of Equal Employment Opportunity and of
Title VI Compliance (Civil Rights Act of 1964, as amended, and related
regulations). Assures agency compliance with Section 504 of the
Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA),
and other nondiscrimination statutes, regulations, Executive Orders, and
policies. Periodically reviews and evaluates the civil rights programs
of State Department of Motor Vehicles and Highway Safety Offices to
ensure that recipients of
[[Page 22]]
NHTSA financial assistance meet applicable Federal civil rights
requirements. Monitors the implementation of and compliance with civil
rights requirements, investigates complaints of discrimination, conducts
compliance reviews, provides technical assistance to recipients of NHTSA
financial assistance and stakeholders, and provides assistance to the
Office of the Secretary in investigating and adjudicating formal
complaints of discrimination.
(5) Director, Office of Governmental Affairs, Policy & Strategic
Planning. As the principal advisor to the Administrator and Deputy
Administrator on all intergovernmental matters, including communications
with Congress, communicates agency policy and serves as coordinator on
legislative affairs. Also, serves as coordinator of agency policy
discussions and activities and communicates with other operating
administrations and the Office of Secretary on strategic planning
efforts.
(6) Director of Communications. As the principal advisor to the
Administrator and Deputy Administrator on external communications and
information dissemination, serves as coordinator on public affairs.
(b) Chief Counsel. As chief legal officer for the Administrator and
the Administration, provides general legal services and legal services
related to legislative activities; prepares litigation and issues
subpoenas; and effects rulemaking actions.
(c) Associate Administrators, Chief Financial Officer, and Chief
Information Officer--(1) Associate Administrator for Administration.
Administers and conducts NHTSA's personnel management activities;
initiates and oversees a comprehensive program of administrative support
services to meet agency requirements, including development,
maintenance, and operation of NHTSA's manuals, notices, and orders,
property management, and the purchase, delivery, and administration of a
range of supplies, equipment, and other support services; is responsible
for administrative operational expenses and working capital fund
operations; serves as the agency's technical expert for all
administrative activities; and administers an executive correspondence
program and maintains policy files for the Administrator and Deputy
Administrator.
(2) Associate Administrator for Communications and Consumer
Information. Represents NHTSA to the general public and others; provides
reliable, timely, and accurate traffic safety information to the general
public, consumers, partner organizations, and citizens groups through
media and public education efforts; and provides scheduling and
speechwriting support for the Administrator.
(3) Associate Administrator for Enforcement. Directs matters related
to the enforcement of motor vehicle safety, fuel economy, theft
prevention, damageability, consumer information, and odometer laws and
regulations; conducts testing, inspection, and investigation necessary
for the identification and correction of safety-related defects in motor
vehicles and motor vehicle equipment; and ensures recalls of
noncomplying and defective vehicles and motor vehicle equipment are
effective and are conducted in accordance with Federal law and
regulations.
(4) Associate Administrator for National Center for Statistics and
Analysis. Provides the data, analysis, and evaluation to support
determination of the nature, causes, and injury outcomes of motor
vehicle traffic crashes, the strategies and interventions that will
reduce crashes and their consequences, and the potential impact, costs,
and benefits of highway safety programs and regulatory activities;
targets the collection and analysis of data and the dissemination of
information to identify potential highway safety problems, evaluate
expected program and regulatory impact and actual goal achievement, and
support data driven decisions; and identifies, advances, and promotes
new methodologies, technologies, systems, and procedures that improve
the completeness, accuracy, timeliness, and accessibility of data
collection, analysis, and evaluation.
(5) Associate Administrator for Regional Operations and Program
Delivery. Directs the management of State and community highway safety
programs; administers and coordinates all Regional activities, including
activities
[[Page 23]]
having a headquarters-regional interface; develops, reviews, implements,
and coordinates related programs, policies, and procedures; and
coordinates with the Federal Highway Administration, the Federal Motor
Carrier Safety Administration, and other Federal agencies on traffic
safety programs, as appropriate.
(6) Associate Administrator for Research and Program Development.
Administers traffic safety programs and provides national leadership and
technical assistance to States, local communities, national
organizations, and other partners in the identification, research,
planning, development, demonstration, implementation, evaluation, and
dissemination of highway safety programs designed to prevent or reduce
traffic-related crashes and the resulting deaths, injuries, property
damage, and associated costs. Coordinates with the Federal Highway
Administration, the Federal Motor Carrier Safety Administration, and
other Federal agencies on traffic safety programs, as appropriate.
(7) Associate Administrator for Rulemaking. Develops and promulgates
Federal standards dealing with motor vehicle safety, theft prevention,
consumer information, the National Driver Register, and fuel economy,
and directs programs relating to bumper standards, safety performance
standards, and other regulations for new and used motor vehicles and
equipment, including tires. Develops and conducts the New Car Assessment
Program.
(8) Associate Administrator for Vehicle Safety Research. Develops
and conducts research, development, test, and evaluation programs and
projects necessary to support consumer information programs, guidelines,
industry voluntary standards, and Federal motor vehicle regulations;
manages the facilities and programs related to these activities; and
conducts crash data analyses in defining safety problems.
(9) Chief Financial Officer. Administers the agency planning and
budget activities in coordination with the Department of Transportation,
the Office of Management and Budget, and Congress; assures the
appropriate development of budget requests and the subsequent execution
of operating budgets within the agency to meet all programmatic
requirements; conducts all necessary accounting transactions to assure
full and accurate accountability for all financial resources of the
agency; initiates and oversees a comprehensive program of acquisition
support for agency buying and supplier requirements, including
acquisition planning, purchasing, payments, and administration;
facilitates, coordinates, tracks, and monitors all external audits,
reviews, and other oversight activities of agency programs, finances,
transactions, or activities--working closely with responsible program
and operational officials; facilitates and oversees the agency travel
program, including the administration and operation of the travel
management system, the travel card program, and the provision of travel
management advice and guidance; and serves as the agency's technical
expert for all financial management activities.
(10) Chief Information Officer. Administers all NHTSA Information
Technology functions and needs to ensure that IT resources are
effectively acquired and managed to maximize mission performance and
return on IT investments.
Sec. 501.4 Succession to Administrator.
(a) The Deputy Administrator is the ``first assistant'' to the
Administrator for purposes of the Federal Vacancies Reform Act of 1998
(5 U.S.C. 3345-3349d) and shall, in the event the Administrator dies,
resigns, or is otherwise unable to perform the functions and duties of
the office, serve as the Acting Administrator, subject to the
limitations established by law.
(b) In the event both the Administrator and the Deputy Administrator
die, resign, and/or are otherwise unable to perform the functions and
duties of their respective offices, or in the event that both positions
are vacant, the following officials, subject to paragraph (c) and in the
order indicated, shall serve as Acting Deputy Administrator and shall
perform the functions and duties of the Administrator, except for any
non-delegable statutory and/or regulatory functions and duties:
(1) The Chief Counsel;
(2) The Executive Director;
[[Page 24]]
(3) Further officials as may be designated in an internal order on
succession.
(c) In order to qualify for the line of succession, officials must
be encumbered in their position on a permanent basis.
Sec. 501.5 Exercise of authority.
(a) All authorities lawfully vested in and reserved to the
Administrator in this title, part, or other NHTSA regulation or
directive may be exercised by the Deputy Administrator and, in the
absence or disability of both officials, by the Chief Counsel, unless
specifically prohibited by statute, regulation, or order.
(b) In exercising the powers and performing the duties delegated by
this part, officers of NHTSA and their delegates are governed by
applicable laws, executive orders, regulations, and other directives,
and by policies, objectives, plans, standards, procedures, and
limitations as may be issued from time to time by or on behalf of the
Secretary of Transportation, the Administrator, the Deputy
Administrator, the Chief Counsel, and the Executive Director or, with
respect to matters under their jurisdiction, by or on behalf of the
Associate Administrators, the Regional Administrators, and the Directors
of Staff Offices.
(c) Each officer to whom authority is delegated by this part may
redelegate and authorize successive redelegations of that authority
subject to any conditions the officer prescribes.
(d) Each officer to whom authority is delegated will administer and
perform the functions described in the officer's respective functional
statements.
Sec. 501.6 Secretary's reservations of authority.
The authorities reserved to the Secretary of Transportation are set
forth in Sec. 1.21 of this title.
Sec. 501.7 Administrator's reservations of authority.
The delegations of authority in this part do not extend to the
following authority, which is reserved to the Administrator, except when
exercised pursuant to Sec. Sec. 501.4 and 501.5(a):
(a) The authority under 23 U.S.C. chapter 4 (except section 403) and
any uncodified provision of law to apportion authorization amounts and
distribute obligation limitations or award grants to States for highway
safety programs or other highway safety purposes;
(b) The authority to issue, amend, or revoke uniform State highway
safety guidelines and rules identifying highly effective highway safety
programs under 23 U.S.C. 402;
(c) The authority to fix the rate of compensation for non-government
members of agency sponsored committees which are entitled to
compensation.
(d) The authority under 49 U.S.C. chapter 301 to:
(1) Issue, amend, or revoke final Federal motor vehicle safety
standards and regulations;
(2) Make final decisions concerning alleged safety-related defects
and noncompliances with Federal motor vehicle safety standards;
(3) Grant or renew temporary exemptions from Federal motor vehicle
safety standards; and
(4) Grant or deny appeals from determinations upon a manufacturer's
petition for decision of inconsequential defect or noncompliance and
exemption from the notification and remedy requirements of 49 U.S.C.
chapter 301 in connection with a defect or noncompliance.
(e) The authority under 49 U.S.C. chapters 303, 321, 323, 325, and
329 (except section 32916(b)) to:
(1) Issue, amend, or revoke final rules and regulations; and
(2) Assess civil penalties and approve manufacturer fuel economy
credit plans under chapter 329.
(f) The authority to carry out, in coordination with the Federal
Motor Carrier Safety Administrator, the authority vested in the
Secretary by 49 U.S.C. chapter 311 subchapter III, to promulgate safety
standards for commercial motor vehicles and equipment subsequent to
initial manufacture when the standards are based upon and similar to a
Federal Motor Vehicle Safety Standard promulgated, either simultaneously
or previously, under 49 U.S.C. chapter 301.
[[Page 25]]
Sec. 501.8 Delegations.
(a) Deputy Administrator. The Deputy Administrator is delegated
authority to act for the Administrator, except where specifically
limited by law, order, regulation, or instructions of the Administrator.
The Deputy Administrator is delegated authority to assist the
Administrator in providing executive direction to all organizational
elements of NHTSA.
(b) Executive Director. The Executive Director is delegated line
authority for executive direction over the Associate Administrators, the
Chief Financial Officer, and the Chief Information Officer.
(c) Director, Office of Civil Rights. The Director, Office of Civil
Rights is delegated authority to:
(1) Serve as the Director of Equal Employment Opportunity.
(2) Serve as the compliance coordinator for:
(i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.), as amended, and related regulations;
(ii) Section 504 of the Rehabilitation Act of 1973;
(iii) The Americans with Disabilities Act (ADA); and
(iv) Other nondiscrimination statutes, regulations, Executive
Orders, and policies.
(3) Investigate complaints of civil rights discrimination, conduct
compliance reviews, and provide technical assistance to recipients of
NHTSA financial assistance and stakeholders.
(4) Review and evaluate the civil rights programs of State
Department of Motor Vehicles and Highway Safety Offices to ensure that
recipients of NHTSA financial assistance meet applicable Federal civil
rights requirements.
(d) Chief Counsel. The Chief Counsel is delegated authority to:
(1) Exercise the powers and perform the duties of the Administrator
with respect to:
(i) Issuing odometer regulations authorized under 49 U.S.C. chapter
327.
(ii) Providing technical assistance and granting extensions of time
to the states under 49 U.S.C. 32705.
(iii) Granting or denying petitions for approval of alternate motor
vehicle mileage disclosure requirements under 49 U.S.C. 32705.
(2) Establish the legal sufficiency of all investigations and
enforcement actions conducted under the authority of 49 U.S.C. chapters
301, 303, 321, 323, 325, 327, 329 and 331; to make an initial penalty
demand based on a violations of any of these chapters; and to
compromise:
(i) Any civil penalty imposed under 49 U.S.C. 30165 in an amount of
$1,000,000 or less.
(ii) Any civil penalty or monetary settlement other than those
imposed under 49 U.S.C. 30165 in an amount of $100,000 or less.
(3) Exercise the powers of the Administrator under 49 U.S.C.
30166(c), (g), (h), (i), and (k).
(4) Issue subpoenas, after notice to the Administrator, for the
attendance of witnesses and production of documents pursuant to 49
U.S.C. chapters 301, 321, 323, 325, 327, 329 and 331.
(5) Issue authoritative interpretations of the statutes administered
by NHTSA and the regulations issued by the agency.
(6) Administer 5 U.S.C. 552 (FOIA) and 49 CFR part 7 (Public
Availability of Information) in connection with the records of NHTSA.
(7) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR
part 10 (Maintenance of and Access to Records Pertaining to Individuals)
in connection with the records of NHTSA.
(8) Carry out the functions and exercise the authority vested in the
Secretary for 23 U.S.C. 313 (Buy America), with respect to matters
within the primary responsibility of NHTSA.
(e) Associate Administrator for Administration. The Associate
Administrator for Administration is delegated authority to administer
and conduct NHTSA's personnel management activities; conduct
administrative and management services in support of NHTSA missions and
programs; and administer an executive correspondence program.
(f) Associate Administrator for Communications and Consumer
Information. The Associate Administrator for Communications and Consumer
Information is
[[Page 26]]
delegated authority to manage and coordinate market research, planning
coordination, development, and promotion of public education campaigns
for both paid media and unpaid public services to support program
efforts; develop overall agency messaging and communications strategies
in support of program initiatives; and develop agency policies on
messaging and communications procedures and processes.
(g) Associate Administrator for Enforcement. The Associate
Administrator for Enforcement is delegated authority to administer the
NHTSA enforcement program for all laws, standards, and regulations
pertinent to vehicle safety, fuel economy, theft prevention,
damageability, consumer information, and odometers, authorized under 49
U.S.C. chapters 301, 323, 325, 327, 329, and 331; conduct testing,
inspection, and investigation necessary for the identification and
correction of safety-related defects in motor vehicles and motor vehicle
equipment and noncompliances with Federal motor vehicle safety
standards; make initial decisions concerning alleged safety-related
defects and noncompliances with Federal motor vehicle safety standards;
grant or deny a manufacturer's petition for decision of inconsequential
defect or noncompliance and exemption from the notification and remedy
requirements of 49 U.S.C. chapter 301 in connection with a defect or
noncompliance; issue regulations relating to the importation of motor
vehicles under 49 U.S.C. 30141-30147; and grant and deny petitions for
import eligibility determinations submitted to NHTSA by motor vehicle
manufacturers and registered importers under 49 U.S.C. 30141.
(h) Associate Administrator for National Center for Statistics and
Analysis. The Associate Administrator for National Center for Statistics
and Analysis is delegated authority to provide the data, analysis, and
evaluation and create and maintain information systems necessary to
support the purposes of 49 U.S.C. chapters 301, 303, 323, 325, 327, 329,
and 331, 23 U.S.C. chapter 4, any uncodified provisions of law related
to such issues, and any cross-cutting safety initiatives; to develop,
maintain, and operate the National Driver Register and a nationwide
clearinghouse of problem drivers; and to support State integrated
highway and traffic records safety information systems.
(i) Associate Administrator for Regional Operations and Program
Delivery. The Associate Administrator for Regional Operations and
Program Delivery is delegated authority, except for authority reserved
to the Administrator, to exercise the powers and perform the duties of
the Administrator with respect to grants to States for highway safety
programs or other State programs under 23 U.S.C. chapter 4 (except
section 403) and uncodified provisions of law, including approval and
disapproval of State highway safety plans and vouchers, in accordance
with the procedural requirements of the Administration. The Associate
Administrator for Regional Operations and Program Delivery is also
delegated authority over programs with respect to the authority vested
by section 210(2) of the Clean Air Act, as amended (42 U.S.C. 7544(2));
the authority vested by 49 U.S.C. 20134(a) with respect to laws
administered by NHTSA pertaining to highway, traffic, and motor vehicle
safety, in coordination with the Associate Administrator for Research
and Program Development; the authority vested by 23 U.S.C. 153, 154,
158, 161, 163, and 164, in coordination with the Federal Highway
Administrator as appropriate; and the authority vested by 23 U.S.C. 404,
in coordination with the Associate Administrator for Communications and
Consumer Information.
(j) Associate Administrator for Research and Program Development.
The Associate Administrator for Research and Program Development is
delegated authority to develop and conduct research and development
programs and projects necessary to support the purposes of 23 U.S.C.
chapter 4, any uncodified provisions of law related to that chapter, and
cross-cutting safety initiatives; conduct research and development
activities described or specifically enumerated in 23 U.S.C. 403; carry
out the functions and exercise the authority vested in the Secretary and
Administrator under section 10202 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users, Public Law 109-
59 [42 U.S.C. 300d-4], as amended by section 31108 of
[[Page 27]]
the Moving Ahead for Progress in the 21st Century Act, Public Law 112-
141, relating to emergency medical services, except for authority
reserved to the Secretary under Sec. 1.21 or the Administrator under
Sec. 501.7; and exercise the authority vested by 49 U.S.C. 20134(a)
with respect to laws administered by NHTSA pertaining to highway,
traffic, and motor vehicle safety, in coordination with the Associate
Administrator for Regional Operations and Program Delivery.
(k) Associate Administrator for Rulemaking. The Associate
Administrator for Rulemaking is delegated authority, except for
authority reserved to the Administrator or delegated to the Chief
Counsel, to exercise the powers and perform the duties of the
Administrator with respect to the setting of motor vehicle safety and
theft prevention standards, fuel economy standards, procedural
regulations, the National Driver Register, and the development of
consumer information and odometer regulations authorized under 49 U.S.C.
chapters 301, 303, 321, 323, 325, 327, 329, and 331, and any uncodified
provisions of law related to such issues. The Associate Administrator
for rulemaking is also delegated authority to perform activities that
support the development of these regulations and standards; extend
comment periods (both self-initiated and in response to a petition or
request for extension of time) for noncontroversial rulemakings; make
technical amendments or corrections to a final rule; extend the
effective date of a noncontroversial final rule; and develop and conduct
the New Car Assessment Program.
(l) Associate Administrator for Vehicle Safety Research. The
Associate Administrator for Vehicle Safety Research is delegated
authority to develop and conduct research, development, test, and
evaluation programs and projects necessary to support the purposes of 49
U.S.C. chapters 301, 323, 325, 327, 329, and 331, any uncodified
provisions of law related to such issues, and any cross-cutting safety
initiatives.
(m) Chief Financial Officer. The Chief Financial Officer is
delegated authority to direct the NHTSA planning and evaluation system
in conjunction with Departmental requirements and planning goals;
coordinate the development of the Administrator's plans, budgets, and
programs, and analyses of their expected impact; exercise procurement
authority with respect to NHTSA requirements; administer NHTSA financial
management programs, including systems of funds control and accounts of
all financial transactions; and enter into inter- and intra-departmental
reimbursable agreements other than with the head of another Department
or agency, provided that this authority to enter into such agreements
may be redelegated only to Office Directors and Contracting Officers.
(n) Chief Information Officer. The Chief Information Officer is
delegated authority to formulate IT policy, guidance, procedures,
security, and best practices; implement an IT capital planning program,
an integrated Enterprise Architecture program, and a mission information
protection program that ensures privacy, security, and critical
infrastructure protection for NHTSA systems and data; and provide for
other NHTSA IT functions to support the agency's mission, performance
goals, and objectives.
PART 509_OMB CONTROL NUMBERS FOR INFORMATION COLLECTION REQUIREMENTS
--Table of Contents
Sec.
509.1 Purpose.
509.2 Display.
Authority: 44 U.S.C. 3507.
Sec. 509.1 Purpose.
This part collects and displays the control numbers assigned to
information collection requirements of NHTSA by the Office of Management
and Budget (OMB). NHTSA intends that this part comply with the
requirements of 44 U.S.C. 3507(f), which mandates that agencies display
a current control number assigned by the Director of the OMB for each
agency information collection requirement.
[48 FR 51310, Nov. 8, 1983]
[[Page 28]]
Sec. 509.2 Display.
------------------------------------------------------------------------
49 CFR part or section containing information collection OMB control
requirement No.
------------------------------------------------------------------------
Part 512................................................... 2127-0025
Part 537................................................... 2127-0019
Part 538................................................... 2127-0554
Part 541................................................... 2127-0510
Part 542................................................... 2127-0539
Part 543................................................... 2127-0542
Part 544................................................... 2127-0547
Section 551.45............................................. 2127-0040
Part 552 and Part 527...................................... 2127-0046
Part 556................................................... 2127-0045
Part 557................................................... 2127-0039
Part 566................................................... 2127-0043
Consolidated owners' manual requirements for vehicles and 2127-0541
equipment (Sec. Sec. 571.126, 571.205 571.208, 571.210,
and 575.105)..............................................
Consolidatd labeling requirements for tires and rims (parts 2127-0503
569 and 574, Sec. Sec. 571.109, 571.110, 571.117,
571,119, and 571.120).....................................
Consolidated VIN and Theft Prevention Standard and Labeling 2127-0510
Requirements (parts 541, 565, 567 and Sec. 571.115).....
Consolidated lighting requirements (part 564 and Sec. 2127-0563
571.108)..................................................
Section 571.106............................................ 2127-0052
Section 571.116............................................ 2127-0521
Section 571.125............................................ 2127-0506
Section 571.205............................................ 2127-0038
Section 571.209............................................ 2127-0512
Section 571.213............................................ 2127-0511
Section 571.214............................................ 2127-0558
Section 571.217............................................ 2127-0505
Section 571.218............................................ 2127-0518
Part 573................................................... 2127-0004
Part 574................................................... 2127-0050
Part 575 excluding UTQGS................................... 2127-0049
Section 575.104 (UTQGS).................................... 2127-0519
Part 576................................................... 2127-0042
Part 580................................................... 2127-0047
Part 585................................................... 2127-0535
Parts 591 and 592.......................................... 2127-0002
------------------------------------------------------------------------
[57 FR 21215, May 19, 1992]
PART 510_INFORMATION GATHERING POWERS--Table of Contents
Sec.
510.1 Scope and purpose.
510.2 Definitions.
510.3 Compulsory process, the service thereof, claims for confidential
treatment, and terms of compliance.
510.4 Subpoenas, generally.
510.5 Information gathering hearings.
510.6 Administrative depositions.
510.7 General or special orders.
510.8 Written requests for the production of documents and things.
510.9 Motions to modify, limit, or quash process.
510.10 Supplementation of responses to process.
510.11 Fees.
510.12 Remedies for failure to comply with compulsory process.
Authority: Secs. 112 and 119, National Traffic and Motor Vehicle
Safety Act 1966, as amended (15 U.S.C. 1401 and 1407); secs. 104, 204,
414, and 505, Motor Vehicle Information and Cost Savings Act, as amended
(15 U.S.C. 1914, 1944, 1990d, and 2005); delegation of authority (49 CFR
1.51).
Source: 45 FR 29042, May 1, 1980, unless otherwise noted.
Sec. 510.1 Scope and purpose.
This rule governs the use of the information gathering powers of the
National Highway Traffic Safety Administration contained in section 112
of the National Traffic and Motor Vehicle Safety Act of 1966, as amended
15 U.S.C. 1401, and sections 104, 204, 414, and 505 of the Motor Vehicle
Information and Cost Savings Act, as amended 15 U.S.C. 1914, 1944,
1990d, and 2005.
Sec. 510.2 Definitions.
(a) NHTSA means the National Highway Traffic Safety Administration.
(b) Administrator means the Administrator of the National Highway
Traffic Safety Administration.
(c) Chief Counsel means the Chief Counsel of the National Highway
Traffic Safety Administration.
(d) Deputy Administrator means the Deputy Administrator of the
National Highway Traffic Safety Administration.
(e) Person includes agents, officers, and employees of sole
proprietorships, partnerships, corporations, and other entities.
[45 FR 29042, May 1, 1980; 45 FR 32001, May 15, 1980]
Sec. 510.3 Compulsory process, the service thereof, claims for
confidential treatment, and terms of compliance.
(a) NHTSA may use any of the following means to conduct
investigations, inspections, or inquiries to obtain information to carry
out its functions under the National Traffic and Motor Vehicle Safety
Act of 1966, as amended, 15 U.S.C. 1381 et seq., and the Motor Vehicle
Information and Cost Savings Act, as amended, 15 U.S.C. 1901 et seq.:
(1) Subpoenas;
(2) Information gathering hearings;
(3) Administrative depositions;
(4) General or special orders; and
[[Page 29]]
(5) Written requests for the production of documents and things.
(b) A person, sole proprietorship, partnership, corporation, or
other entity served with compulsory process under this part shall be
provided with the following information at the time of the service:
(1) The name of the person, sole proprietorship, partnership,
corporation, or other entity to which the process is addressed;
(2) The statutory provision under which the compulsory process is
issued;
(3) The date, time, and place of return;
(4) A brief statement of the subject matter of the investigation,
inspection, or inquiry; and
(5) In the case of a subpoena duces tecum or a written request for
the production of documents and things, a reasonably specific
description of the documents or things to be produced.
(c) Service of the compulsory processes specified in paragraph (a)
of this section is effected:
(1) By personal service upon the person, agent-in-charge, or agent
designated to receive process under 15 U.S.C. 1399(e) of the sole
proprietorship, partnership, corporation or other entity being
investigated, inspected, or inquired of; or
(2) By mail (registered or certified) or delivery to the last known
residence or business address of such person or agent.
(d) The date of service of any compulsory process specified in
paragraph (a) of this section is the date on which the process is mailed
by the agency, or delivered in person, as the case may be. Whenever a
period is prescribed for compliance with compulsory process, and the
process is served upon the party by mail, 3 days are added to the
period.
(e)(1) Any person, sole proprietorship, partnership, corporation, or
other entity submitting information or producing documents or things in
response to any compulsory process issued under this part may request
confidential treatment for all or part of that information or for those
documents or things.
(2)(i) Except as provided in paragraph (e)(2)(ii) of this section,
requests for confidentiality shall be in writing, and addressed to the
Chief Counsel.
(ii) Requests for confidentiality made during an information
gathering hearing or an administrative deposition may be made orally to
the presiding officer. Any oral request for confidentiality shall be
supplemented by a written request, and this written request must be
addressed to the Chief Counsel and received by NHTSA within five days of
the date of the oral request.
(iii) A written request for confidentiality under paragraph (e) of
this section shall specify the information, documents, or things which
are to be kept confidential, specify the grounds upon which the claim is
based, provide such information as may be necessary to permit the NHTSA
to determine whether the claim is valid, and specify the period of time
for which confidential treatment is requested.
(f) The Chief Counsel, or his or her delegate, is authorized to
negotiate and approve the terms of satisfactory compliance with any
compulsory process issued under this part.
Sec. 510.4 Subpoenas, generally.
NHTSA may issue to any person, sole proprietorship, partnership,
corporation, or other entity a subpoena requiring the production of
documents or things (subpoena duces tecum) and testimony of witnesses
(subpoena ad testificandum), or both, relating to any matter under
investigation or the subject of any inquiry. Subpoenas are issued by the
Chief Counsel. When a person, sole proprietorship, partnership,
corporation, or other entity is served with a subpoena ad testificandum
under this part, the subpoena will describe with reasonable
particularity the matters on which the testimony is required. In
response to a subpoena ad testificandum, the sole proprietorship,
partnership, corporation, or other entity so named shall designate one
or more officers, directors, or managing agents, or other persons who
consent to testify on its behalf, and set forth, for each person
designated, the matters on which he or she will testify. The persons so
designated shall testify as to matters
[[Page 30]]
known or reasonably available to the entity.
[53 FR 26261, July 12, 1988]
Sec. 510.5 Information gathering hearings.
(a) NHTSA may issue a subpoena to compel any person, sole
proprietorship, partnership, corporation, or other entity to provide
information at an information gathering hearing. The subpoenas are used
for the purpose of obtaining testimony from a witness under oath and
obtaining relevant documents and things. The Administrator, or a NHTSA
employee designated by the Administrator, presides at the hearing.
Information gathering hearings are open to the public unless the
presiding officer rules otherwise, and the hearings are stenographically
reported.
(b) In addition to the presiding officer, one or more other persons
may comprise the panel. Each member of the panel may question any
witness at the hearing. No person who is not a member of the panel may
ask questions of a witness. However, any person may submit to the panel,
in writing, proposed questions to be asked of a witness. A member of the
panel may pose these questions to the witness if that member deems the
questions useful and appropriate. Proposed questions may be submitted to
the panel at any time before or during the course of the hearing.
(c) The stenographic record of each witness's testimony will be
available to the public, unless the testimony was not given publicly and
the witness requests confidential treatment for some or all of his or
her testimony. When an oral request for confidential treatment is made
during the course of a witness's testimony, the presiding officer may
order the hearing closed to the public at that point and continue the
questioning of the witness, or may note the request for confidentiality
and direct the witness not to answer the question at that time, but
require the witness to answer the question in writing within some
specified period, or take such other action as the presiding officer
deems appropriate. If a request for confidential treatment is made, the
release of the record is governed by the applicable laws or regulations
relating to the handling of allegedly confidential information. To the
extent that some or all of a witness's testimony is not publicly
available, that witness may procure a copy of his or her testimony as
recorded upon payment of lawfully prescribed costs.
(d)(1) Any person who is required by subpoena or designated by an
entity that is required by subpoena to provide information at an
information gathering hearing conducted under this section may be
accompanied, represented, and advised by counsel. Any member of the bar
of a Federal court or the courts of any State or Territory of the United
States, the Commonwealth of Puerto Rico, or the District of Columbia,
and any representative, official, or employee of the sole
proprietorship, partnership, corporation or other entity under subpoena
may act as counsel.
(2) A witness appearing in response to subpoena may confer in
confidence with his or her counsel or representative concerning any
questions asked of the witness. If such witness, counsel, or
representative objects to a question, he or she shall state the
objection and basis therefor on the record.
(e) The presiding officer at an information gathering hearing takes
all necessary action to regulate the course of the hearing, to avoid
delay, and to assure that reasonable standards of orderly and ethical
conduct are maintained. In any case in which counsel for or a
representative of a witness has refused to comply with the presiding
officer's directions, or to adhere to reasonable standards of orderly
and ethical conduct in the course of a hearing, the presiding officer
states on the record the reasons given, if any, for the refusal and, if
the presiding officer is someone other than the Administrator,
immediately reports the refusal to the Administrator. The Administrator
thereupon takes such action as the circumstances warrant.
(f) Where appropriate, the procedures established in this subsection
may be utilized in informal hearings conducted by NHTSA pursuant to its
authority under sections 152 and 156 of the Safety Act (15 U.S.C. 1412,
1416) to receive data, views and arguments concerning alleged safety-
related defects. The
[[Page 31]]
rights accorded to witnesses in this subsection may also be accorded to
witnesses who appear voluntarily at such hearings.
Sec. 510.6 Administrative depositions.
(a) NHTSA may issue a subpoena to compel any person, sole
proprietorship, partnership, corporation, or other entity to provide
information as a witness at an administrative deposition. These
depositions are for the purpose of obtaining information from the
witness under oath and receiving documents and things relevant to an
agency investigation. These depositions shall be taken before an officer
authorized to administer oaths by the laws of the United States or of
the place where the deposition is taken. Unless otherwise ordered by the
Administrator, administrative depositions are closed to the public.
(b) Any person who is required by subpoena or designated by an
entity that is required by subpoena to produce documents or things or to
give testimony as a witness at an administrative deposition conducted
under this section may be accompanied, represented, and advised by
counsel. Any member of the bar or a Federal court or the courts of any
State or Territory of the United States, the Commonwealth of Puerto
Rico, or the District of Columbia and any representative, official, or
employee of the person, sole proprietorship, partnership, corporation,
or other entity under subpoena may act as counsel.
(c) During an administrative deposition:
(1) The presiding officer before whom the deposition is to be taken
puts the witness on oath and personally, or by someone acting under his
or her direction and in his or her presence, records the testimony of
the witness. The testimony is stenographically reported.
(2) After NHTSA has examined the witness at the deposition, that
witness' counsel or representative may examine the witness. NHTSA may
then reexamine the witness and the witness' counsel or representative
may reexamine the witness and so forth, as appropriate.
(3) A witness appearing in response to a subpoena may confer in
confidence with his or her counsel or representative concerning any
questions asked of the witness. If such witness, counsel, or
representative objects to a question, he or she shall state the
objection and the basis therefor on the record.
(4) Objections to the qualifications of the officer taking the
deposition, or to the manner of taking it, or to the evidence presented,
and any other objection to the proceedings shall be noted by the officer
on the record, and shall be treated as continuing. Evidence objected to
shall be taken subject to the objections. Errors and irregularities
occurring at a deposition in the manner of the taking of the deposition,
in the form of questions or answers, or in the oath or affirmation, and
errors of any kind which might be obviated, removed, or cured if
promptly presented shall be deemed to be waived unless reasonable
objection is made thereto at the taking of the deposition.
(5) If the witness refuses to answer any question or answers
evasively, or if the witness or his or her counsel engages in conduct
likely to delay or obstruct the administrative deposition, such refusal,
evasive answer or conduct shall be a failure to comply with the subpoena
issued to the witness.
(6) Upon completion of the examination of a witness, the witness may
clarify on the record any of his or her answers.
(d) The transcript of the testimony of a witness who testified in
response to a subpoena at an administrative deposition is submitted to
the witness for signature, unless the witness waives the right to sign
the transcript. If a witness desires to make any changes in the form or
substance contained in the transcript, the witness shall submit,
together with the transcript, a separate document setting forth the
changes and stating the reasons for such changes. If the deposition is
not signed by the witness within 30 days of its submission to the
witness, or such other period as the NHTSA may designate, the officer
before whom the deposition was taken or a NHTSA employee signs the
transcript and states on the record the fact of the waiver of
[[Page 32]]
the right to sign or the fact of the witness' unavailability or
inability or refusal to sign together with the reasons, if any, given
therefor.
(e) The transcript of the testimony of a witness will be inspected
by NHTSA to determine if there are any errors in the transcription of
the questions posed to the witness and the testimony in response to
those questions. If NHTSA discovers any errors, it notes that fact and
forwards the notation of errors together with the transcript to the
witness, requesting the witness to stipulate that the transcript is in
error and that the corrections made by NHTSA are accurate. If the
witness will not make this stipulation, NHTSA may make a motion to the
presiding officer to include its notation of error and its corrections
in the record along with the version of the testimony signed by the
witness.
(f)(1) Upon payment of lawfully prescribed costs, any person who is
required by subpoena or designated by a sole proprietorship,
partnership, corporation, or other entity that is required by subpoena
to appear as a witness at an administrative deposition may procure a
copy of the deposition as recorded, except that in a nonpublic
investigatory proceeding, the witness may, for good cause, be limited to
an inspection of the record of the deposition.
(2) A copy of the record of the deposition may be furnished to the
witness without charge or at a reduced charge if the Associate
Administrator for Administration determines that waiver of the fee is in
the public interest because furnishing the copy can be considered as
primarily benefitting the general public. Any witness who seeks a waiver
of the copying charge may apply in writing to the Associate
Administrator for Administration, and shall state the reasons justifying
waiver of the fee in the application.
(g) The testimony obtained in an adminstrative deposition may be
used or considered by the NHTSA in any of its activities, and may be
used or offered into evidence in any administrative proceeding in
accordance with the provisions of 5 U.S.C. 554, or in any judicial
proceeding.
Sec. 510.7 General or special orders.
The NHTSA may require by the issuance of general or special orders
any person, sole proprietorship, partnership, corporation, or other
entity to file with the NHTSA, in such form as NHTSA may prescribe,
periodic or special reports or answers in writing to specific questions.
The responses to general or special orders will provide NHTSA with such
information as it may require, including, but not limited to,
information relating to the organization of that person, sole
proprietorship, partnership, corporation, or other entity, its business,
conduct, practices, management, and relation to any other person or
entity. General or special orders which are required to be answered
under oath are issued by the Chief Counsel. Any general or special order
issued under this section contains the information specified in Sec.
510.3(b). Reports and answers filed in response to general or special
orders must be made under oath, or otherwise, as NHTSA may prescribe.
Sec. 510.8 Written requests for the production of documents and
things.
The NHTSA may, by the issuance of a written request for the
production of documents and things, require any person, sole
proprietorship, partnership, corporation, or other entity to produce
documents or things. A written request for the production of documents
and things may be issued alone, or as a part of a general or special
order issued under Sec. 510.7. Written requests for the production of
documents and things are issued by the Chief Counsel. Any written
request for the production of documents and things issued under this
section shall contain the information specified in Sec. 510.3(b).
Sec. 510.9 Motions to modify, limit, or quash process.
(a)(1) Any person, sole proprietorship, partnership, corporation, or
other entity served with a subpoena issued under Sec. 510.4 may file
with the Deputy Administrator a motion to modify, limit, or quash that
subpoena. If there is no Deputy Administrator, or the Deputy
Administrator is not available, such motions shall be filed with and
decided
[[Page 33]]
by the Associate Administrator for Administration. A motion to modify,
limit, or quash must be filed not later than 15 days after the service
of the process or five days before the return date specified in the
process, whichever is earlier, except that, if the process is served
within five days of its return date, such motion may be filed at any
time before the return date. Any motion must set forth the grounds and
theories of why and how the party believes the process should be
modified, limited, or quashed and must contain all facts and arguments
which support those grounds and theories.
(2) The Deputy Administrator may, upon receiving a motion filed
pursuant to paragraph (a)(1) of this section:
(i) Deny the motion;
(ii) Modify the return date of the subpoena;
(iii) Modify, limit or quash the subpoena;
(iv) Condition granting the motion upon certain requirements; or
(v) Take any other action he or she believes to be appropriate in
the circumstances.
(3) The Office of the Deputy Administrator serves the decision on
the motion on the moving party or the counsel or representative of the
moving party. This service may be made by personal service, by
registered or certified mail, or by reading a copy of the decision to
the moving party or the counsel or representative of the moving party.
(4) A denial of any motion properly filed under this section shall
be in writing, and shall contain a brief statement of the facts involved
and the conclusions drawn from those facts by the Deputy Administrator.
(b) The Deputy Administrator's decision on the motion to modify,
limit, or quash, filed under paragraph (a) of this section is not
subject to reconsideration by NHTSA.
Sec. 510.10 Supplementation of responses to process.
(a) A person, sole proprietorship, partnership, corporation, or
other entity which has provided NHTSA with information under this part,
which information was complete and accurate at the time the information
was given to NHTSA, is not required to supplement that information in
the light of after acquired information, except:
(1) The person or entity to whom the process is addressed shall
supplement the response with respect to any question directly addressed
to the identity and location of persons having knowledge of information
obtainable under this part.
(2) The person or entity to whom the process is addressed shall
seasonably amend a prior response if that person or entity obtains
information upon the basis of which the person or entity knows that the
response was incorrect when made or the person or entity knows that the
response, though correct when made, is no longer true and the
circumstances are such that a failure to amend the response is in
substance a knowing concealment.
(b) The requirement to supplement information set forth in paragraph
(a) of this section terminates when:
(1) The compulsory process stated that it was issued in connection
with a contemplated rulemaking action, and a final rule is issued on
that subject or a notice is issued announcing that the rulemaking action
has been suspended or terminated.
(2) The compulsory process stated that it was issued in connection
with an enforcement investigation, and the investigation is closed.
(3) The compulsory process does not state that it is issued in
connection with a specific rulemaking action or enforcement
investigation, and 18 months have passed since the date of the original
response.
(c) This section in no way limits NHTSA's authority to obtain
supplemental information by specific demands through the means specified
in Sec. 510.3.
Sec. 510.11 Fees.
Any person compelled to appear in person in response to a subpoena
issued under this part at an information gathering hearing or an
administrative deposition is paid the same attendance and mileage fees
as are paid witnesses in the courts of the United States, in accordance
with title 28, U.S.C., section 1821.
[[Page 34]]
Sec. 510.12 Remedies for failure to comply with compulsory process.
Any failure to comply with compulsory process authorized by law and
issued under this part is a violation of this part. In the event of such
failure to comply, NHTSA may take appropriate action pursuant to the
authority conferred by the National Traffic and Motor Vehicle Safety Act
or the Motor Vehicle Information and Cost Savings Act, as appropriate,
including institution of judicial proceedings to enforce the order and
to collect civil penalties.
PART 511_ADJUDICATIVE PROCEDURES--Table of Contents
Subpart A_Scope of Rules; Nature of Adjudicative Proceedings,
Definitions
Sec.
511.1 Scope of the rules.
511.2 Nature of adjudicative proceedings.
511.3 Definitions.
Subpart B_Pleadings; Form; Execution; Service of Documents
511.11 Commencement of proceedings.
511.12 Answer.
511.13 Amendments and supplemental pleadings.
511.14 Form and filing of documents.
511.15 Time.
511.16 Service.
511.17 Public participation.
511.18 Joinder of proceedings.
Subpart C_Prehearing Procedures; Motions; Interlocutory Appeals; Summary
Judgment; Settlement
511.21 Prehearing conferences.
511.22 Prehearing briefs.
511.23 Motions.
511.24 Interlocutory appeals.
511.25 Summary decision and order.
511.26 Settlement.
Subpart D_Discovery; Compulsory Process
511.31 General provisions governing discovery.
511.32 Written interrogatories to parties.
511.33 Production of documents and things.
511.34 Requests for admission.
511.35 Testimony upon oral examination.
511.36 Motions to compel discovery.
511.37 Sanctions for failure to comply with order.
511.38 Subpoenas.
511.39 Orders requiring witnesses to testify or provide other
information and granting immunity.
Subpart E_Hearings
511.41 General rules.
511.42 Powers and duties of Presiding Officer.
511.43 Evidence.
511.44 Expert witnesses.
511.45 In camera materials.
511.46 Proposed findings, conclusions, and order.
511.47 Record.
511.48 Official docket.
511.49 Fees.
Subpart F_Decision
511.51 Initial decision.
511.52 Adoption of initial decision.
511.53 Appeal from initial decision.
511.54 Review of initial decision in absence of appeal.
511.55 Final decision on appeal or review.
511.56 Reconsideration.
511.57 Effective date of order.
Subpart G_Settlement Procedure in Cases of Violation of Average Fuel
Economy Standards
511.61 Purpose.
511.62 Definitions.
511.63 Criteria for settlement.
511.64 Petitions for settlement; timing, contents.
511.65 Public comment.
511.66 Confidential business information.
511.67 Settlement order.
Subpart H_Appearances; Standards of Conduct
511.71 Who may make appearances.
511.72 Authority for representation.
511.73 Written appearances.
511.74 Attorneys.
511.75 Persons not attorneys.
511.76 Qualifications and standards of conduct.
511.77 Restrictions as to former members and employees.
511.78 Prohibited communications.
Appendix I to Part 511--Final Prehearing Order
Authority: 15 U.S.C. 2002; delegation of authority at 49 CFR 1.50.
Source: 45 FR 81578, Dec. 11, 1980, unless otherwise noted.
[[Page 35]]
Subpart A_Scope of Rules; Nature of Adjudicative Proceedings,
Definitions
Sec. 511.1 Scope of the rules.
This part establishes rules of practice and procedure for
adjudicative proceedings conducted pursuant to section 508(a)(2) of the
Motor Vehicle Information and Cost Savings Act (15 U.S.C. Pub. L. 94-
163, 89 Stat. 911, section 2008(a)(2)), which are required by statute to
be determined on the record after opportunity for a public hearing.
Sec. 511.2 Nature of adjudicative proceedings.
Adjudicative proceedings shall be conducted in accordance with title
5, U.S.C., sections 551 through 559 and this part. It is the policy of
the agency that adjudicative proceedings shall be conducted
expeditiously and with due regard to the rights and interests of all
persons affected, and to the public interest. Therefore, the presiding
officer and all parties shall make every effort at each stage of a
proceeding to avoid unnecessary delay.
Sec. 511.3 Definitions.
(a) As used in this part:
(1) The term application means an ex parte request by a party for an
order that may be granted or denied without opportunity for response by
any other party.
(2) The term NHTSA means the National Highway Traffic Safety
Administration.
(3) The term Administrator means the Administrator of the National
Highway Traffic Safety Administration.
(4) The term Complaint Counsel means prosecuting counsel for the
NHTSA.
(5) The term motion means a request by a party for a ruling or order
that may be granted or denied only after opportunity for response by
each affected party.
(6) The term party means the NHTSA, and any person named as a
respondent in a proceeding governed by this part.
(7) The term person means any individual, partnership, corporation,
association, public or private organization, or Federal, State or
municipal governmental entity.
(8) The term petition means a written request, made by a person or a
party and addressed to the Presiding Officer or the Administrator, that
the addressee take some action.
(9) The term Presiding Officer means the person who conducts an
adjudicative hearing under this part, who shall be an administrative law
judge qualified under title 5, U.S.C., section 3105 and assigned by the
Chief Administrative Law Judge, Office of Hearings, United States
Department of Transportation.
(10) The term Respondent means any person against whom a complaint
has been issued.
(11) The term Office of Hearings means the Officer of Hearings,
Department of Transportation.
(12) The term staff means the staff of the National Highway Traffic
Safety Administration.
(13) The term Chief Administrative Law Judge means the Chief
Administrative Law Judge of the Office of Hearings, Department of
Transportation.
(14) The term Docket Section means the Docket Section, Office of the
Secretary of Transportation.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15782, May 3, 1988]
Subpart B_Pleadings; Form; Execution; Service of Documents
Sec. 511.11 Commencement of proceedings.
(a) Notice of institution of an enforcement proceeding. An
adjudicative proceeding under this part is commenced by the issuance of
a complaint by the NHTSA.
(b) Form and content of complaint. The complaint shall be signed by
the Complaint Counsel and shall contain the following:
(1) Recital of the legal authority for instituting the proceeding,
with specific designation of the statutory provisions involved in each
allegation.
(2) Identification of each respondent.
(3) A clear and concise statement of the charges, sufficient to
inform each respondent with reasonable definiteness of the factual basis
of the allegations of violation. A list and summary of documentary
evidence supporting the charges shall be attached.
[[Page 36]]
(4) A statement of the civil penalty which the Complaint Counsel
believes is in the public interest, or which is required by law. In the
case of civil penalties assessed for violations of section 507(3) of the
Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2007(3)), the
amount of such penalty shall be calculated from the time of the alleged
violation. In the case of civil penalties assessed for violations of
section 507 (1) or (2) of that Act, any monetary credits available to
offset those civil penalties shall be specified.
(5) The right of the respondent to a hearing on the alleged
violations.
(c) Notice to the public. Once a complaint is issued, notice of it
shall be immediately submitted to the Federal Register for publication.
The notice in the Federal Register shall briefly describe the nature of
the proceeding and state that petitions to participate in the proceeding
must be filed no later than the first prehearing conference.
Sec. 511.12 Answer.
(a) Time for filing. A respondent shall have twenty (20) days after
service of a complaint within which to file an answer.
(b) Content of answer. An answer shall conform to the following:
(1) Request for hearing. Respondent shall state whether it requests
a full, adjudicatory hearing or whether it desires to proceed on the
basis of written submissions. If a hearing is requested, respondent
shall specify those issues on which a hearing is desired.
(2) Contested allegations. An answer in which the allegations of a
complaint are contested shall contain:
(i) Specific admission or denial of each allegation in the
complaint. If the respondent is without knowledge or information
sufficient to form a belief as to the truth of an allegation, respondent
shall so state. Such a statement shall have the effect of a denial.
Denials shall fairly meet the substance of the allegations denied.
Allegations not thus answered shall be deemed to have been admitted.
(ii) A concise statement of the factual and/or legal defenses to
each allegation of the complaint.
(3) Admitted allegations. If the respondent admits or fails to deny
any factual allegation, he or she shall be deemed to have waived a
hearing as to such allegation.
(c) Default. Failure of the respondent to file an answer within the
time provided (or within an extended time, if provided), shall be deemed
to constitute a waiver of the right to appear and contest the
allegations set forth in the complaint and to authorize the Presiding
Officer to make such findings of fact as are reasonable under the
circumstances.
Sec. 511.13 Amendments and supplemental pleadings.
Whenever determination of a controversy on the merits will be
facilitated thereby, the Presiding Officer upon motion, may allow
appropriate amendments and supplemental pleadings which do not unduly
broaden the issues in the proceeding or cause undue delay.
Sec. 511.14 Form and filing of documents.
(a) Filing. Except as otherwise provided, all documents submitted to
the Administrator or a Presiding Officer shall be filed with the Docket
Section, Office of the Secretary, Department of Transportation, Room
4107, 400 Seventh Street, SW., Washington, DC 20590. Documents may be
filed in person or by mail and shall be deemed filed on the day of
filing or mailing.
(b) Caption. Every document shall contain a caption setting forth
the name of the action in connection with which it is filed, the docket
number, and the title of the document.
(c) Copies. An original and nine (9) copies of all documents shall
be filed. Documents may be reproduced by printing or any other process,
provided that all copies filed are clear and legible.
(d) Signature. (1) The original of each document filed shall be
signed by a representative of record for the party; or in the case of
parties not represented, by the party; or by a partner, officer, or
regular employee of any corporation, partnership, or association, who
files an appearance on behalf of the party.
(2) The act of signing a document constitutes a representation by
the signer that the signer has read it; that
[[Page 37]]
to the best of the signer's knowledge, information and belief, the
statements made in it are true; and that it is not filed for purposes of
delay.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15782, May 3, 1988]
Sec. 511.15 Time.
(a) Computation. In computing any period of time prescribed or
allowed by the rules in this part, the day of the act, event, or default
from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included,
unless it is a Saturday, a Sunday, or a legal holiday, in which event
the period runs until the end of the next day which is not a Saturday, a
Sunday, or a legal holiday. When the period of time prescribed or
allowed is less than 7 days, intermediate Saturdays, Sundays, and legal
holidays shall be excluded in the computation. As used in this part,
``legal holiday'' includes New Year's Day, Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's Day,
Thanksgiving Day, Christmas Day, and any other day appointed as a
holiday by the President or the Congress of the United States.
(b) Additional time after service by mail. Whenever a party is
required or permitted to do an act within a prescribed period after
service of a document and the document is served by mail, three (3) days
shall be added to the prescribed period.
(c) Extensions. For good cause shown, the Presiding Officer may
extend any time limit prescribed or allowed under this part or by order
of the Administrator or the Presiding Officer, except those governing
the filing of interlocutory appeals and appeals from Initial Decisions
and those expressly requiring the Administrator's action. Except as
otherwise provided by law, the Administrator, for good cause shown, may
extend any time limit prescribed under this part, or by order of the
Administrator or the Presiding Officer. A party or participant may
petition the Presiding Officer or the Administrator, as appropriate, for
an extension under this paragraph. Such a petition shall be filed prior
to the occurrence of the time limit which is the subject of the
petition.
Sec. 511.16 Service.
(a) Mandatory service. Every document filed with the Office of
Hearings shall be served upon all parties and participants to a
proceeding, i.e., Complaint Counsel, respondent(s), and participants,
and upon the Presiding Officer.
(b) Service of complaint, ruling, order, decision, or subpoena.
Service of a complaint, ruling, order, decision, or subpoena may be
effected as follows:
(1) By registered or certified mail. A copy of the document shall be
addressed to the person, partnership, corporation or unincorporated
association to be served at his or its residence or principal office or
place of business; registered or certified; and mailed; or
(2) By delivery to an individual. A copy of the document may be
delivered to the person to be served; or to a member of the partnership
to be served; or to the president, secretary, or other executive
officer, or a director of the corporation or unincorporated association
to be served; or to an agent authorized by appointment or by law to
receive service; or
(3) By delivery to an address. A copy of the document may be left at
the principal office or place of business of the person, partnership,
corporation, unincorporated association, or authorized agent with an
officer, a managing or general agent; or it may be left with a person of
suitable age and discretion residing therein, at the residence of the
person or of a member of the partnership or of an executive officer,
director, or agent of the corporation or unincorporated association to
be served.
(c) Service of documents with prescribed response periods. When
service of a document starts the running of a prescribed period of time
for the submission of a responsive document or the occurrence of an
event, the document shall be served as provided in paragraph (b) of this
section.
(d) Service of other documents. All documents other than those
specified in paragraph (c) of this section may be served as provided in
paragraph (b) of this section, or by ordinary first-class
[[Page 38]]
mail, properly addressed, postage prepaid.
(e) Service on a representative. When a party has appeared by an
attorney or other representative, service upon that attorney or other
representative shall constitute service on the party.
(f) Certificate of service. The original of every document filed
with the agency and required to be served upon all parties to a
proceeding shall be accompanied by a certificate of service signed by
the party making service, stating that such service has been made upon
each party to the proceeding. Certificates of service may be in
substantially the following form:
I hereby certify that I have this day served the foregoing document
upon all parties of record in this proceeding by mailing, postage
prepaid (or by delivering in person) a copy to each such party.
Dated at -------------------- this ---- day of --------------------,
19----.
(Signature)_____________________________________________________________
For_____________________________________________________________________
(g) Date of service. The date of service of a document shall be the
date on which the document is deposited in the United States mail or is
delivered in person.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988]
Sec. 511.17 Public participation.
Participant Status. Any person interested in a proceeding commenced
pursuant to Sec. 511.11 who desires to participate in the proceeding,
shall file with the Docket Section a notice of intention to participate
in the proceeding and shall serve a copy of such notice on each party to
the proceeding. A notice of intention to participate shall be filed not
later than the commencement of the hearing. Untimely filings will not be
accepted absent a determination by the Presiding Officer that the person
making the request has made a substantial showing of good cause for
failure to file on time. Any person who files a notice to participate in
the proceeding as a nonparty shall be known as a ``participant'' and
shall have the rights specified in Sec. 511.41(d).
[53 FR 15783, May 3, 1988]
Sec. 511.18 Joinder of proceedings.
Two or more matters which have been scheduled for adjudicative
proceedings, and which involve one or more common questions of law or
fact, may be consolidated for the purpose of hearing, appeal or the
Administrator's review. A motion for consolidation for the purpose of
hearing may be filed with the Presiding Officer by any party to such
proceedings not later than thirty (30) days prior to the hearing. A
motion for consolidation for the purpose of appeal may be filed by any
party to such proceedings within 10 days after issuance of the Initial
Decision. A motion to consolidate shall be served upon all parties to
all proceedings whose joinder is contemplated. The proceedings may be
consolidated where to do so would tend to avoid unnecessary costs or
delay. Such consolidation may also be ordered upon the initiative of the
Presiding Officer or the Administrator, as appropriate. The Presiding
Officer may order separate hearings on any issue where to do so would
promote economy or convenience or would avoid prejudice to a party.
Subpart C_Prehearing Procedures; Motions; Interlocutory Appeals; Summary
Judgment; Settlement
Sec. 511.21 Prehearing conferences.
(a) When held. (1) A prehearing conference shall be held in person
or by conference telephone call, except in unusual circumstances,
approximately fifty (50) days after publication in the Federal Register
of the complaint, upon ten (10) days notice to all parties and
participants, to consider any or all the following:
(i) Motions for consolidation of proceedings;
(ii) Identification, simplification and clarification of the issues;
(iii) Necessity or desirability of amending the pleadings;
(iv) Stipulations and admissions of fact and of the content and
authenticity of documents;
(v) Oppositions to notices of oral examination;
(vi) Motions for protective orders to limit or modify discovery;
[[Page 39]]
(vii) Issuance of subpoenas to compel the appearance of witnesses
and the production of documents;
(viii) Limitation of the number of witnesses, particularly the
avoidance of duplicate expert witnesses;
(ix) Matters of which official notice will be taken and matters
which may be resolved by reliance upon findings of other Federal
agencies; and
(x) Other matters which may expedite the conduct of the hearing.
Sec. 511.22 Prehearing briefs.
Not later ten (10) days prior to the hearing, the parties shall,
except when ordered otherwise by the Presiding Officer in unusual
circumstances, simultaneously serve and file prehearing briefs, which
shall set forth (a) a statement of the facts expected to be proved, and
of the anticipated order of proof; (b) a statement of the issues and the
legal argument in support of the party's contentions with respect to
each issue; and (c) a table of authorities with a designation by
asterisk of the principal authorities relied upon.
Sec. 511.23 Motions.
(a) Presentations and dispositions. During the time a proceeding is
before a Presiding Officer, all motions, whether oral or written, except
those filed under Sec. 511.42(e), shall be addressed to the Presiding
Officer, who shall rule upon them promptly after affording an
opportunity for response.
(b) Written motions. All written motions shall state the particular
order, ruling, or action desired and the grounds therefor. If a motion
is supported by memoranda, affidavits or other documents, they shall be
served and filed with the motion. All motions shall contain a proposed
order setting forth the relief sought. All written motions shall be
filed with the Executive Secretary and served on all parties, and all
motions addressed to the Administrator shall be in writing.
(c) Responses. Within ten (10) days after service of any written
motion or petition or within such longer or shorter time as may be
designated by these Rules or by the Presiding Officer or the
Administrator, the opposing party or parties shall file a written
response to such motion. Where a motion would affect only a single
party, or an identifiable group of parties, the Presiding Officer or
Administrator may limit the response to the motion to the affected party
or parties. Failure to respond to a written motion may, in the
discretion of the Presiding Officer be deemed as consent to the granting
of the relief sought in the motion. The moving party shall have no right
to reply, except as permitted by the Presiding Officer or the
Administrator.
(d) Rulings on motions for dismissal. When a motion to dismiss a
complaint or motion for other relief is granted with the result that the
proceeding before the Presiding Officer is terminated, the Presiding
Officer shall issue an Initial Decision and Order thereon in accordance
with the provisions of Sec. 511.51. If such a motion is granted as to
all issues alleged in the complaint in regard to some, but not all, of
the respondents, or is granted as to any part of the allegations in
regard to any or all of the respondents, the Presiding Officer shall
enter an order on the record and consider the remaining issues in the
Initial Decision. The Presiding Officer may elect to defer ruling on a
motion to dismiss until the close of the case.
Sec. 511.24 Interlocutory appeals.
(a) General. Rulings of the Presiding Officer may not be appealed to
the Administrator prior to the Initial Decision, except as provided
herein.
(b) Exceptions--(1) Interlocutory appeals to Administrator. The
Administrator may, in his or her discretion, entertain interlocutory
appeals where a ruling of the Presiding Officer:
(i) Requires the production or disclosure of records claimed to be
confidential;
(ii) Requires the testimony of a supervisory official of the agency
other than one especially cognizant of the facts of the matter in
adjudication;
(iii) Excludes an attorney from participation in a proceeding
pursuant to Sec. 511.42(b).
(2) Procedures for interlocutory appeals. Within ten (10) days of
issuance of a ruling, any party may petition the Administrator to
entertain an interlocutory appeal on a ruling in the categories
enumerated above. The petition
[[Page 40]]
shall not exceed fifteen (15) pages. Any other party may file a response
to the petition within ten (10) days of its service. The response shall
not exceed fifteen (15) pages. The Administrator shall thereupon act
upon the petition, or the Administrator shall request such further
briefing or oral presentation as he may deem necessary.
(3) Interlocutory appeals from all other rulings--(i) Grounds.
Interlocutory appeals from all other rulings by the Presiding Officer
may proceed only upon motion to the Presiding Officer and a
determination by the Presiding Officer in writing, with justification in
support thereof, that the ruling involves a controlling question of law
or policy as to which there is substantial ground for differences of
opinion and that an immediate appeal from the ruling may materially
advance the ultimate termination of the litigation, or that subsequent
review will be an inadequate remedy.
(ii) Form. If the Presiding Officer determines, in accordance with
paragraph (b)(3)(i) of this section that an interlocutory appeal may
proceed, a petition for interlocutory appeal may be filed with and acted
upon by the Administrator in accordance with paragraph (b)(2) of this
section.
(c) Proceedings not stayed. A petition for interlocutory appeal
under this part shall not stay the proceedings before the Presiding
Officer unless the Presiding Officer shall so order, except that a
ruling of the Presiding Officer requiring the production of records
claimed to be confidential shall be automatically stayed for a period of
(10) days following the issuance of such ruling to allow an affected
party the opportunity to file a petition for an interlocutory appeal
pursuant to Sec. 511.24(b)(2). The filing of such a petition shall
automatically extend the stay of such a ruling pending the
Administrator's action on such petition.
Sec. 511.25 Summary decision and order.
(a) Motion. Any party may move, with a supporting memorandum, for a
Summary Decision and Order in its favor upon all or any of the issues in
controversy. Complaint Counsel may so move at any time after thirty (30)
days following issuance of a complaint, and any other party may so move
at any time after issuance of a complaint. Any such motion by any party
shall be filed at least twenty (20) days before the date fixed for the
adjudicatory hearing.
(b) Response to motion. Any other party may, within ten (10) days
after service of the motion, file a response thereto with a supporting
memorandum.
(c) Grounds. A Summary Decision and Order shall be granted if the
pleadings and any testimony upon oral examination, answers to
interrogatories, admissions, and/or affidavits show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a Summary Decision and Order as a matter of law.
(d) Legal effect. A Summary Decision and Order upon all the issues
being adjudicated shall constitute the Initial Decision of the Presiding
Officer, and may be appealed to the Administrator in accordance with
Sec. 511.53. A Summary Decision, interlocutory in character, may be
rendered on fewer than all issues and may not be appealed prior to
issuance of the Initial Decision, except in accordance with Sec.
511.24.
(e) Case not fully adjudicated on motion. A Summary Decision and
Order that does not dispose of the whole case shall include a statement
of those material facts as to which there is no substantial controversy,
and of those material facts that are actually and in good faith
controverted. The Summary Order shall direct such further proceedings as
are just.
Sec. 511.26 Settlement.
(a) Applicability. This section applies only to cases of alleged
violations of section 507(3) of the Motor Vehicle Information and Cost
Savings Act, Pub. L. 94-163, 89 Stat. 911 (15 U.S.C. section 2007(3)).
Settlement in other cases may be made only in accordance with subpart G
of this part.
(b) Availability. Any party shall have the opportunity to submit an
offer of settlement to the Presiding Officer.
(c) Form. Offers of settlement shall be in the form of a consent
agreement and order, shall be signed by the party submitting the offer
or his representative, and may be signed by any other party.
[[Page 41]]
Each offer of settlement shall be accompanied by a motion to transmit to
the Administrator the proposed agreement and order, outlining the
substantive provisions of the agreement, and the reasons why it should
be accepted.
(d) Contents. The proposed consent agreement and order which
constitute the offer of settlement shall contain the following:
(1) An admission of all jurisdictional facts;
(2) An express waiver of further procedural steps, and of all rights
to seek judicial review or otherwise to contest the validity of the
order;
(3) A description of the alleged noncompliance, or violation;
(4) Provisions to the effect that the allegations of the complaint
are resolved by the proposed consent agreement and order;
(5) A listing of the acts or practices from which the respondent
shall refrain;
(6) A detailed statement of the corrective action(s) which the
respondent shall excute and the civil penalty, if any, that respondent
shall pay.
(e) Transmittal. The Presiding Officer shall transmit to the
Administrator for decision all offers of settlement and accompanying
memoranda that meet the requirements enumerated in paragraph (d) of this
section. The Presiding Officer may, but need not, recommend acceptance
or rejection of such offers. Any party or participant may object to a
proposed consent agreement by filing a motion and supporting memorandum
with the Administrator.
(f) Stay of proceedings. When an offer of settlement has been agreed
to by the parties and has been transmitted to the Administrator, the
proceedings shall be stayed until the Administrator has ruled on the
offer. When an offer of settlement has been made and transmitted to the
Administrator but has not been agreed to by all parties, the proceedings
shall not be stayed pending the Administrator's decision on the offer.
(g) Administrator's ruling. The Administrator will rule upon all
transmitted offers of settlement. If the Administrator accepts the
offer, the Administrator shall issue an appropriate order. The order
shall become effective upon issuance. In determining whether to accept
an offer of settlement, the Administrator will consider the gravity of
the alleged violation, and any good faith efforts by the respondent to
comply with applicable requirements.
(h) Rejection. If the Administrator rejects an offer of settlement,
the Administrator shall give written notice of that decision and the
reasons therefor to the parties and the Presiding Officer. Promptly
thereafter, the Presiding Officer shall issue an order notifying the
parties of the resumption of the proceedings, including any
modifications to the schedule resulting from the stay of the
proceedings.
(i) Effect of rejected offer. Rejected offers of settlement shall
not be admissible in evidence over the objection of any signatory, nor
shall the fact of the proposal of the offer be admissible in evidence.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988]
Subpart D_Discovery; Compulsory Process
Sec. 511.31 General provisions governing discovery.
(a) Applicability. The discovery rules established in this subpart
are applicable to the discovery of information among the parties to a
proceeding. Parties seeking information from persons not parties may do
so by subpoena in accordance with Sec. 511.38.
(b) Discovery methods. Parties may obtain discovery by one or more
of the following methods: (1) Written interrogatories; (2) requests for
production of documents or things; (3) requests for admissions; or (4)
testimony upon oral examination. Unless the Presiding Officer otherwise
orders under paragraph (d) of this section, the frequency of use of
these methods is not limited.
(c) Scope of discovery. The scope of discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter
not privileged, which is relevant to the subject matter involved in the
proceedings, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party. It is
not ground for objection
[[Page 42]]
that the information sought will be inadmissible at the hearing if the
information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
(2) Exception. Parties may not obtain discovery of documents which
accompanied the staff's recommendation as to whether a complaint should
issue or of documents or portions thereof which would be exempt from
discovery under Rule 26(b)(3) of the Federal Rules of Civil Procedure.
(3) Hearing preparation: Experts. A party may obtain discovery of
facts known and opinions held by experts, regardless of whether they are
acquired or developed in anticipation of or for litigation. Such
discovery may be had by any of the methods provided in paragraph (b) of
this section.
(d) Protective orders. Upon motion by a party or person and for good
cause shown, the Presiding Officer may make any order which justice
requires to protect such party or person from annoyance, embarrassment,
competitive disadvantage, oppression or undue burden or expense,
including one or more of the following: (1) That the discovery shall not
be had; (2) that the discovery may be had only on specified terms and
conditions, including a designation of the time and/or place; (3) that
the discovery shall be had only by a method of discovery other than that
selected by the party seeking discovery; (4) that certain matters shall
not be inquired into, or that the scope of discovery shall be limited to
certain matters; (5) that discovery shall be conducted with no one
present except persons designated by the Presiding Officer; (6) that a
trade secret or other confidential research, development, or commercial
information shall not be disclosed or shall be disclosed only in a
designated way or only to designated parties; and (7) that responses to
discovery shall be placed in camera in accordance with Sec. 511.45.
If a motion for a protective order is denied in whole or in part, the
Presiding Officer may, on such terms or conditions as are just, order
that any party provide or permit discovery.
(e) Sequence and timing of discovery. Discovery may commence at any
time after filing of the answer. Unless otherwise provided in these
Rules or by order of the Presiding Officer, methods of discovery may be
used in any sequence and the fact that a party is conducting discovery
shall not operate to delay any other party's discovery.
(f) Supplementation of responses. A party who has responded to a
request for discovery shall supplement the response with information
thereafter acquired.
(g) Completion of discovery. All discovery shall be completed as
soon as practical but in no case longer than one hundred fifty (150)
days after issuance of a complaint unless otherwise ordered by the
Presiding Officer in exceptional circumstances and for good cause shown.
All discovery shall be served by a date which affords the party from
whom discovery is sought the full response period provided by these
Rules.
(h) Service and filing of discovery. All discovery requests and
written responses, and all notices of the taking of testimony, shall be
filed with the Docket Section and served on all parties and the
Presiding Officer.
(i) Control of discovery. The use of these discovery procedures is
subject to the control of the Presiding Officer, who may issue any just
and appropriate order for the purpose of ensuring their timely
completion.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988]
Sec. 511.32 Written interrogatories to parties.
(a) Availability; procedures for use. Any party may serve upon any
other party written interrogatories to be answered by the party served
or, if the party served is a public or private corporation or a
partnership or association or governmental agency, by any officer or
agent, who shall furnish such information as is available to the party.
Interrogatories may, without leave of the Presiding Officer, be served
upon any party after filing of the answer.
(b) Procedures for response. Each interrogatory shall be answered
separately and fully in writing under oath, unless it is objected to, in
which event the reasons for objection shall be stated in lieu of an
answer. The answers
[[Page 43]]
are to be signed by a responsible representative of the respondent and
the objections signed by the representative making them. The party upon
whom the interrogatories have been served shall serve a copy of the
answers, and objections if any, within 30 days after service of the
interrogatories. The Presiding Officer may allow a shorter or longer
time for response. The party submitting the interrogatories may move for
an order under Sec. 511.36 with respect to any objection to or other
failure to answer an interrogatory.
(c) Scope of interrogatories. Interrogatories may relate to any
matters which can be inquired into under Sec. 511.31(c)(1), and the
answers may be used to the extent permitted under this part. An
interrogatory otherwise proper is not objectionable merely because an
answer to the interrogatory would involve an opinion or contention that
relates to fact or to the application of law to fact, but the Presiding
Officer may order that such an interrogatory need not be answered until
a later time.
(d) Option to produce business records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon whom the interrogatory has been served, or from an
examination, audit or inspection of such business records, or from a
compilation, abstract or summary based thereon, and the burden of
deriving the answer is substantially the same for the party serving the
interrogatory as for the party served, it is a sufficient answer to the
interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit or inspect such
records and to make copies, complications, abstracts, or summaries.
Sec. 511.33 Production of documents and things.
(a) Scope. Any party may serve upon any other party a request (1) to
produce and permit the party making the request, or someone acting on
behalf of that party, to inspect and copy any designated documents
(including writings, drawings, graphs, charts, photographs, phono-
records, and any other data-compilation from which information can be
obtained, translated, if necessary, by the party in possession into
reasonably usable form), or (2) to inspect and copy, test or sample
tangible things which constitute or contain matters within the scope of
Sec. 511.31(c)(1) and which are in the possession, custody or control
of the party upon whom the request is served.
(b) Procedure for request. The request may be served at any time
after the filing of the answer without leave of the Presiding Officer.
The request shall set forth the items to be inspected either by
individual item or by category, and shall describe each item or category
with reasonable particularity. The request shall specify a reasonable
time, place and manner for making the inspection and performing the
related acts.
(c) Procedure for response. The party upon whom the request is
served shall serve a written response within twenty (20) days after
service of the request. The Presiding Officer may allow a shorter or
longer time for response. The response shall state, with respect to each
item or category requested, that inspection and related activities will
be permitted as requested, unless the request is objected to, in which
event the reasons for objection shall be stated. If objection is made to
only part of an item or category, that part shall be so specified. The
party submitting the request may move for an order under Sec. 511.36
with respect to any objection to or other failure to respond to the
request or any part thereof, or to any failure to permit inspection as
requested.
Sec. 511.34 Requests for admission.
(a) Procedure for request. A party may serve upon any other party a
written request for the admission, for the purposes of the pending
proceeding only, of the truth of any matters within the scope of Sec.
511.31(c)(1) set forth in the request that relate to statements or
opinions of fact or of the application of law to fact, including the
genuineness of documents described in the request. Copies of documents
shall be served with the request unless they have been, or are otherwise
furnished or made
[[Page 44]]
available for inspection and copying. The request may, without leave of
the Presiding Officer, be served upon any party after filing of the
answer. Each matter as to which an admission is requested shall be
separately set forth.
(b) Procedure for response. The matter as to which an admission is
requested is deemed admitted unless within thirty (30) days after
service of the request, or within such shorter or longer time as the
Presiding Officer may allow, the party to whom the request is directed
serves upon the party requesting the admission a written answer or
objection addressed to the matter, signed by the party or the party's
representatives. If objection is made, the reasons therefore shall be
stated.
The answer shall specifically admit or deny the matter or set forth in
detail the reasons why the answering party cannot truthfully admit or
deny the matter. A denial shall fairly meet the substance of the
requested admission. When good faith requires that a party qualify an
answer or deny only a part of the matter as to which an admission is
requested, the party shall specify the portion that is true and qualify
or deny the remainder. An answering party may not give lack of
information or knowledge as a reason for failure to admit or deny,
unless the party states that he or she has made reasonable inquiry and
that the information known or readily available to him or her is
insufficient to enable him or her to admit or deny. A party who
considers that a matter as to which an admission has been requested
presents a genuine issue for hearing may not, on that ground alone,
object to the request but may deny the matter or set forth reasons why
the party cannot admit or deny it. The party who has requested an
admission may move to determine the sufficiency of the answer or
objection thereto in accordance with Sec. 511.36. If the Presiding
Officer determines that an answer does not comply with the requirements
of this section, he or she may order that the matter be deemed admitted
or that an amended answer be served.
(c) Effect of admission. Any matter admitted under this section is
conclusively established unless the Presiding Officer on motion permits
withdrawal or amendment of such admission. The Presiding Officer may
permit withdrawal or amendment when the presentation of the merits of
the action will be served thereby and the party that obtained the
admission fails to satisfy the Presiding Officer that withdrawal or
amendment will prejudice that party in maintaining an action or defense
on the merits.
Sec. 511.35 Testimony upon oral examination.
(a) When testimony may be taken. At any time after the answer is
filed under Sec. 511.12, upon leave of the Presiding Officer and under
such terms and conditions as the Presiding Officer may prescribe, any
party may take the testimony of any other party, including the agents,
employees, consultants or prospective witnesses of that party at a place
convenient to the witness. The attendance of witnesses and the
production of documents and things at the examination may be compelled
by subpoena as provided in Sec. 511.38.
(b) Notice of oral examination--(1) Examination of a party. A party
desiring to examine another party to the proceeding shall, after
obtaining leave from the Presiding Officer, serve written notice of the
examination on all other parties and the Presiding Officer at least ten
(10) days before the date of the examination. The notice shall state (i)
the time and place for making the examination; (ii) the name and address
of each person to be examined, if known, or if the name is not known, a
general description sufficient to identify him; and (iii) the subject
matter of the expected testimony. If a subpoena duces tecum is to be
served on the person to be examined, the designation of the materials to
be produced, as set forth in the subpoena, shall be attached to or
included in the notice of examination.
(2) Examination of a nonparty. A party desiring to examine a person
who is not a party to the proceeding shall make application for a
subpoena, in accordance with Sec. 511.38, to compel the attendance,
testimony and/or production of documents by such person who is not a
party. The party desiring such examination shall serve written notice of
the examination on all other parties to
[[Page 45]]
the proceeding, after issuance of the subpoena by the Presiding Officer
or a designated alternate.
(3) Opposition to notice. A person served with a notice of
examination may, within 3 days of the date of service, oppose, in
writing, the examination. The Presiding Officer shall rule on the notice
and any opposition and may order the taking of all noticed examinations,
upon a showing of good cause therefor. The Presiding Officer may, for
good cause shown, enlarge or shorten the time for the taking of an
examination.
(c) Persons before whom examinations may be taken. Examinations may
be taken before any person authorized to administer oaths by the laws of
the United States or of the place where the examination is held. No
examination shall be taken before a person who is a relative or employee
or attorney or representative of any party, or who is a relative or
employee of such attorney or representative, or who is financially
interested in the action.
(d) Procedure--(1) Examination. Each witness shall be duly sworn,
and all testimony shall be duly recorded. All parties or their
representatives may be present and participate in the examination.
Examination and cross-examination of witnesses may proceed as permitted
at the hearing. Questions objected to shall be answered subject to the
objections. Objections shall be in short form, and shall state the
grounds relied upon. The questions propounded and the answers thereto,
together with all objections made, shall be recorded by the official
reporter before whom the examination is made. The original or a verified
copy of all documents and things produced for inspection during the
examination of the witness shall, upon a request of any party present,
be marked for identification and annexed to the record of the
examination.
(2) Motion to terminate or limit examination. At any time during the
examination, upon motion of any party or of the witness, and upon
showing that the examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass or oppress the witness or
party, the Presiding Officer may, upon motion, order the party
conducting the examination to terminate the examination, or may limit
the scope and manner of the examination as provided in Sec. 511.31(d).
(3) Participation by parties not present. In lieu of attending an
examination, any party may serve written questions in a sealed envelope
on the party conducting the examination. That party shall transmit the
envelope to the official reporter, who shall unseal it and propound the
questions contained therein to the witness.
(e) Transcription and filing of testimony--(1) Transcription. Upon
request by any party, the testimony recorded at an examination shall be
transcribed. When the testimony is fully transcribed, the transcript
shall be submitted to the witness for examination and signing, and shall
be read to or by the witness, unless such examination and signature are
waived by the witness. Any change in form or substance which the witness
desires to make shall be entered upon the transcript of the official
reporter with a statement of the reasons given by the witness for making
them. The transcript shall then be signed by the witness, unless the
parties by stipulation waive the signing, or the witness is ill or
cannot be found or refuses to sign. If the transcript is not signed by
the witness within thirty (30) days of its submission to him, the
official reporter shall sign it and state on the record the fact of the
waiver of signature or of the illness or absence of the witness or the
fact of the refusal to sign, together with a statement of the reasons
therefor. The testimony may then be used as fully as though signed, in
accordance with paragraph (i) of this section.
(2) Certification and filing. The official reporter shall certify on
the transcript that the witness was duly sworn and that the transcript
is a true record of the testimony given and corrections made by the
witness. The official reporter shall then seal the transcript in an
envelope endorsed with the title and docket number of the action and
marked ``Testimony of [name of witness]'' and shall promptly file the
transcript with the Docket Section. The Presiding Officer shall notify
all parties of the filing of the transcript and the Docket Section shall
furnish a copy of the transcript to any party or to the
[[Page 46]]
witness upon payment of reasonable charges therefor.
(f) Costs of examination. The party who notices the examination
shall pay for the examination. The party who requests transcription of
the examination shall pay for the transcription.
(g) Failure to attend or to serve subpoena; expenses. If a party who
notices an examination fails to attend and proceed therewith and another
party attends in person or by a representative pursuant to the notice,
the Presiding Officer may order the party who gave the notice to pay the
attending party the reasonable expenses incurred. If a party who notices
an examination fails to serve a subpoena upon the witness and as a
result the witness does not attend, and if another party attends in
person or by a representative because that party expects the examination
to be made, the Presiding Officer may order the party who gave notice to
pay the attending party the reasonable expenses incurred.
(h) Examination to preserve testimony--(1) When available. By leave
of the Presiding Officer, a party may examine a witness for the purpose
of perpetuating the testimony of that witness. A party who wishes to
conduct such an examination shall obtain prior leave of the Presiding
Officer by filing a motion. The motion shall include a showing of
substantial reason to believe that the testimony could not be presented
at the hearing. If the Presiding Officer is satisfied that the
perpetuation of the testimony may prevent a failure of justice or is
otherwise reasonably necessary, he or she shall order that the
deposition be taken.
(2) Procedure. Notice of an examination to preserve testimony shall
be served at least fifteen (15) days prior to the examination. The
examination shall be taken in accordance with the provisions of
paragraph (d) of this section. Any examination taken to preserve
testimony shall be fully transcribed and filed in accordance with
paragraph (e) of this section.
(i) Use of testimony obtained under this section. At the hearing or
upon a motion or an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of evidence applied as
though the witness were then present and testifying, may be used against
any party who was present or represented at the taking of the deposition
or who had reasonable notice thereof, in accordance with any of the
following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of a person who at the time of the
taking of his testimony was an officer, director or managing agent of a
party may be used against that party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the Presiding Officer finds:
(i) That the witness is dead; or
(ii) That the witness is at a greater distance than 100 miles from
the place of the hearing, or is out of the United States, unless it
appears that the absence of the witness was procured by the party
offering the deposition; or
(iii) That the witness is unable to attend or testify because of
age, illness, infirmity, or imprisonment; or
(iv) That the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
(v) Upon application and notice, that such exceptional circumstances
exist as to make it desirable, in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally
in open court, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require him to introduce any other part which ought
in fairness to be considered with the part introduced, and any party may
introduce any other parts.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988]
Sec. 511.36 Motions to compel discovery.
If a party fails to respond to discovery, in whole or in part, the
party seeking discovery may move within twenty (20) days for an order
compelling an answer, or compelling inspection or production of
documents, or otherwise compelling discovery. For
[[Page 47]]
purposes of this subsection, an evasive or incomplete response is to be
treated as a failure to respond. If the motion is granted, the Presiding
Officer shall issue an order compelling discovery. If the motion is
denied in whole or in part, the Presiding Officer may make such
protective order as he or she would have been empowered to make on a
motion pursuant to Sec. 511.31(d). When making oral examinations, the
discovering party shall continue the examination to the extent possible
with respect to other areas of inquiry before moving to compel
discovery.
Sec. 511.37 Sanctions for failure to comply with order.
If a party fails to obey an order to provide or permit discovery,
the Presiding Officer may take such action as is just, including but not
limited to the following:
(a) Infer that the admission, testimony, document or other evidence
would have been adverse to the party;
(b) Order that for the purposes of the proceeding, the matters
regarding which the order was made or any other designated facts shall
be taken to be established in accordance with the claim of the party
obtaining the order;
(c) Order that the party withholding discovery not introduce into
evidence or otherwise rely, in support of any claim or defense, upon the
documents or other evidence withheld;
(d) Order that the party withholding discovery not introduce into
evidence or otherwise use at the hearing, information obtained in
discovery;
(e) Order that the party withholding discovery not be heard to
object to introduction and use of secondary evidence to show what the
withheld admission, testimony, documents, or other evidence would have
shown;
(f) Order that a pleading, or part of a pleading, or a motion or
other submission by the party, concerning which the order was issued, be
stricken, or that decision on the pleadings be rendered against the
party, or both; and
(g) Exclude the party or representative from proceedings, in
accordance with Sec. 511.42(b).
Any such action may be taken by order at any point in the proceedings.
Sec. 511.38 Subpoenas.
(a) Availability. A subpoena shall be addressed to any party or any
person not a party for the purpose of compelling attendance, testimony
and production of documents at a hearing or oral examination.
(b) Form. A subpoena shall identify the action with which it is
connected; shall specify the person to whom it is addressed and the
date, time and place for compliance with its provisions; and shall be
issued by order of the Presiding Officer and signed by the Chief
Counsel, or by the Presiding Officer. A subpoena duces tecum shall
specify the books, papers, documents, or other materials or data-
compilations to be produced.
(c) How obtained--(1) Content of application. An application for the
issuance of a subpoena stating reasons shall be submitted in triplicate
to the Presiding Officer.
(2) Procedure of application. The original and two copies of the
subpoena, marked ``original,'' ``duplicate'' and ``triplicate,'' shall
accompany the application. The Presiding Officer shall rule upon an
application for a subpoena ex parte, by issuing the subpoena or by
issuing an order denying the application.
(d) Issuance of a subpoena. The Presiding Officer shall issue a
subpoena by signing and dating, or ordering the Chief Counsel to sign
and date, each copy in the lower right-hand corner of the document. The
``duplicate'' and ``triplicate'' copies of the subpoena shall be
transmitted to the applicant for service in accordance with these Rules;
the ``original'' copy shall be retained by or forwarded to the Chief
Counsel for retention in the docket of the proceeding.
(e) Service of a subpoena. A subpoena may be served in person or by
certified mail, return receipt requested, as provided in Sec.
511.16(b). Service shall be made by delivery of the signed ``duplicate''
copy to the person named therein.
(f) Return of service. A person serving a subpoena shall promptly
execute a return of service, stating the date, time, and manner of
service. If service is effected by mail, the signed return receipt shall
accompany the return of
[[Page 48]]
service. In case of failure to make service, a statement of the reasons
for the failure shall be made. The ``triplicate'' of the subpoena,
bearing or accompanied by the return of service, shall be returned
forthwith to the Chief Counsel after service has been completed.
(g) Motion to quash or limit subpoena. Within five (5) days of
receipt of a subpoena, the person against whom it is directed may file
with the Presiding Officer a motion to quash, modify, or limit the
subpoena, setting forth the reasons why the subpoena should be withdrawn
or why it should be modified or limited in scope. Any such motion shall
be answered within five (5) days of service, and shall be ruled on
immediately thereafter. The order shall specify the date, if any, for
compliance with the specifications of the subpoena and the reasons for
the decision.
(h) Consequences of failure to comply. In the event of failure to
comply with a subpoena, the Presiding Officer may take any of the
actions enumerated in Sec. 511.37 or may order any other appropriate
relief to compensate for the withheld testimony, documents, or other
materials. If in the opinon of the Presiding Officer such relief is
insufficient, the Presiding Officer shall certify to the Administrator a
request for judicial enforcement of the subpoena.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 26261, July 12, 1988]
Sec. 511.39 Orders requiring witnesses to testify or provide other
information and granting immunity.
(a) A party who desires the issuance of an order requiring a witness
to testify or provide other information upon being granted immunity from
prosecution under title 18, U.S.C., section 6002, may make a motion to
that effect. The motion shall be made and ruled on in accordance with
Sec. 511.22, and shall include a showing:
(1) That the testimony or other information sought from a witness or
prospective witness may be necessary to the public interest; and
(2) That such individual has refused or is likely to refuse to
testify or provide such information on the basis of that individual's
privilege against self-incrimination.
(b) If the Presiding Officer determines that the witness' testimony
appears necessary and that the privilege against self-incrimination may
be invoked, he or she may certify to the Administrator a request that he
or she obtain the approval of the Attorney General of the United States
for the issuance of an order granting immunity.
(c) Upon application to and approval of the Attorney General of the
United States, and after the witness has invoked the privilege against
self-incrimination, the Presiding Officer shall issue the order granting
immunity unless he or she determines that the privilege was improperly
invoked.
(d) Failure of a witness to testify after a grant of immunity or
after a denial of the issuance of an order granting immunity shall
result in the imposition of appropriate sanctions as provided in Sec.
511.37.
Subpart E_Hearings
Sec. 511.41 General rules.
(a) Public hearings. All hearings pursuant to this part shall be
public unless otherwise ordered by the Presiding Officer. Notice of the
time and location of the hearing shall be served on each party and
participant, and published in the Federal Register.
(b) Expedition. Hearings shall proceed with all reasonable speed,
insofar as practicable and with due regard to the convenience of the
parties and shall continue without suspension until concluded, except in
unusual circumstances.
(c) Rights of parties. Every party shall have the right of timely
notice and all other rights essential to a fair hearing, including, but
not limited to, the rights to present evidence, to conduct such cross-
examination as may be necessary in the judgment of the Presiding Officer
for a full and complete disclosure of the facts, and to be heard by
objection, motion, brief, and argument.
(d) Rights of participants. Every participant shall have the right
to make a written or oral statement of position, file proposed findings
of fact, conclusions of law and a posthearing brief, in accordance with
Sec. 511.17(b).
[[Page 49]]
(e) Rights of witnesses. Any person compelled to testify in a
proceeding in response to a subpoena may be accompanied, represented,
and advised by counsel or other representative, and may obtain a
transcript of his or her testimony at no cost.
Sec. 511.42 Powers and duties of Presiding Officer.
(a) General. A Presiding Officer shall have the duty to conduct
full, fair, and impartial hearings, to take appropriate action to avoid
unnecessary delay in the disposition of proceedings, and to maintain
order. He or she shall have all powers necessary to that end, including
the following powers:
(1) To administer oaths and affirmations;
(2) To compel discovery and to impose appropriate sanctions for
failure to make discovery;
(3) To issue subpoenas;
(4) To rule upon offers of proof and receive relevant and probative
evidence;
(5) To regulate the course of the hearings and the conduct of the
parties and their representatives therein;
(6) To hold conferences for simplification of the issues, settlement
of the proceedings, or any other proper purposes;
(7) To consider and rule, orally or in writing, upon all procedural
and other motions appropriate in an adjudicative proceeding;
(8) To issue initial decisions, rulings, and orders, as appropriate;
(9) To certify questions to the Administrator for determination; and
(10) To take any action authorized in this part or in conformance
with the provisions of title 5, U.S.C., sections 551 through 559.
(b) Exclusion of parties by Presiding Officer. A Presiding Officer
shall have the authority, for good cause stated on the record, to
exclude from participation in a proceeding any party, participant, and/
or representative who shall violate requirements of Sec. 511.76. Any
party, participant and/or representative so excluded may appeal to the
Administrator in accordance with the provisions of Sec. 511.23. If the
representative of a party or participant is excluded, the hearing shall
be suspended for a reasonable time so that the party or participant may
obtain another representative.
(c) Substitution of Presiding Officer. In the event of the
substitution of a new Presiding Officer for the one originally
designated, any motion predicated upon such substitution shall be made
within five (5) days of the substitution.
(d) Interference. In the performance of adjudicative functions, a
Presiding Officer shall not be responsible to or subject to the
supervision or direction of the Administrator or of any officer,
employee, or agent engaged in the performance of investigative or
prosecuting functions for NHTSA. All directions by the Administrator to
a Presiding Officer concerning any adjudicative proceeding shall appear
on and be made a part of the record.
(e) Disqualification of Presiding Officer. (1) When a Presiding
Officer deems himself or herself disqualified to preside in a particular
proceeding, he or she shall withdraw by notice on the record and shall
notify the Chief Administrative Law Judge of the withdrawal.
(2) Whenever, for any reason, any party shall deem the Presiding
Officer to be disqualified to preside, or to continue to preside, in a
particular proceeding, that party may file with the Chief Administrative
Law Judge a motion to disqualify and remove, supported by affidavit(s)
setting forth the alleged grounds for disqualification. A copy of the
motion and supporting affidavit(s) shall be served by the Chief
Administrative Law Judge on the Presiding Officer whose removal is
sought. The Presiding Officer shall have ten (10) days from service to
reply in writing. Such motion shall not stay the proceeding unless
otherwise ordered by the Presiding Officer or the Administrator. If the
Presiding Officer does not disqualify himself or herself, the
Administrator will determine the validity of the grounds alleged, either
directly or on the report of another Presiding Officer appointed to
conduct a hearing for that purpose, and shall in the event of
disqualification take appropriate action, by assigning another Presiding
[[Page 50]]
Officer or requesting assignment of another Administrative Law Judge
through the Office of Hearings.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988]
Sec. 511.43 Evidence.
(a) Applicability of Federal Rules of Evidence. The Federal Rules of
Evidence shall apply to proceedings held under this part only as a
general guide. The Presiding Officer may admit any relevent and
probative evidence.
(b) Burden of proof. (1) Complaint counsel shall have the burden of
sustaining the allegations of any complaint.
(2) Any party who is the proponent of a legal and/or factual
proposition shall have the burden of sustaining the proposition.
(c) Presumptions. A presumption imposes on the party against whom it
is directed the burden of going forward with evidence to rebut or meet
the presumption, but does not shift to such party the burden of proof in
the sense of the risk of nonpersuasion, which remains throughout the
hearing upon the party on whom it was originally cast.
(d) Admissibility. All relevant and reliable evidence is admissible,
but may be excluded if its probative value is substantially outweighed
by unfair prejudice or by considerations of undue delay, waste of time,
immateriality, or needless presentation of cumulative evidence.
(e) Official notice--(1) Definition. Official notice means use by
the Presiding Officer of extra-record facts and legal conclusions drawn
from those facts. An officially noticed fact or legal conclusion must be
one not subject to reasonable dispute in that it is either (i) generally
known within the jurisdiction of the Presiding Officer or (ii) known by
the Presiding Officer in areas of his or her expertise; or (iii) capable
of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.
(2) Method of taking official notice. The Presiding Officer may at
any time take official notice upon motion of any party or upon its own
initiative. The record shall reflect the facts and conclusions which
have been officially noticed.
(3) Opportunity to challenge. Any party may upon application in
writing rebut officially noticed facts and conclusions by supplementing
the record. The Presiding Officer shall determine the permissible extent
of this challenge; that is, whether to limit the party to presentation
of written materials, whether to allow presentation of testimony,
whether to allow cross-examination, or whether to allow oral argument.
The Presiding Officer shall grant or deny the application on the record.
(f) Objections and exceptions. Objections to evidence shall be
timely interposed, shall appear on the record, and shall contain the
grounds upon which they are based. Rulings on all objections, and the
bases therefore, shall appear on the record. Formal exception to an
adverse ruling is not required to preserve the question for appeal.
(g) Offer of proof. When an objection to proffered testimony or
documentary evidence is sustained, the sponsoring party may make a
specific offer, either in writing or orally, of what the party expects
to prove by the testimony or the document. When an offer of proof is
made, any other party may make a specific offer, either in writing or
orally, of what the party expects to present to rebut or contradict the
offer of proof. Written offers of proof or of rebuttal, adequately
marked for identification, shall accompany the record and be available
for consideration by any reviewing authority.
Sec. 511.44 Expert witnesses.
(a) Definition. An expert witness is one who, by reason of
education, training, experience, or profession, has peculiar knowlege
concerning the matter of science or skill to which his or her testimony
relates and from which he or she may draw inferences based upon
hypothetically stated facts or from facts involving scientific or
technical knowledge.
(b) Method of presenting testimony of expert witness. Except as may
be otherwise ordered by the Presiding Officer, a detailed written
statement of the elements of the direct testimony of an expert witness
shall be filed on the record and exchanged between the parties no
[[Page 51]]
later than 10 days preceding the commencement of the hearing. The
statement must contain a full explanation of the methodology underlying
any analysis, and a full disclosure of the basis of any opinion. The
direct testimony of an expert witness shall not include points not
contained in the written statement. A party may waive direct examination
of an expert witness by indicating that the written statement be
considered the testimony of the witness. In such a case, the written
testimony shall be incorporated into the record and shall constitute the
testimony of the witness.
(c) Cross-examination and redirect examination of expert witness.
Cross-examination, redirect examination, and re-cross-examination of an
expert witness will proceed in due course based upon the written
testimony and any amplifying oral testimony.
(d) Failure to file and/or to exchange written statement. Failure to
file and/or to exchange the written statement of an expert witness as
provided in this section shall deprive the sponsoring party of the use
of the expert witness and of the conclusions which that witness would
have presented.
Sec. 511.45 In camera materials.
(a) Definition. In camera materials are documents, testimony, or
other data which by order of the Presiding Officer or the Administrator,
as appropriate under this part, are kept confidential and excluded from
the public record. Only materials exempt under the Freedom of
Information Act may be kept confidential and excluded from the public
record. Pursuant to 49 CFR part 512, the Chief Counsel of the NHTSA is
responsible for determining whether an alleged confidential business
record is exempt from the Freedom of Information Act. The right of the
Presiding Officer, the Administrator and reviewing courts to order
disclosure of in camera materials is specifically reserved.
(b) In camera treatment of documents and testimony. The Presiding
Officer or the Administrator, as appropriate under this part, shall have
authority, when good cause is found on the record, to order documents or
testimony offered in evidence, whether admitted or rejected, to be
received and preserved in camera. The order shall specify the length of
time for in camera treatment and shall include:
(1) A description of the documents and/or testimony;
(2) The reasons for granting in camera treatment for the specified
length of time.
(c) Access and disclosure to parties. (1) The Administrator and
Presiding Officer, and their immediate advisory staffs shall have
complete access to all in camera materials. All other parties shall also
have complete access to all in camera materials, except that these
parties may seek access only in accordance with paragraph (c)(2) of this
section when:
(i) The in camera materials consist of information obtained by the
government from persons not parties to the proceeding; or
(ii) The in camera materials consist of information provided by one
of the parties to the proceeding which is confidential as to the other
parties to the proceeding.
(2) Any party desiring access to and/or disclosure of the in camera
materials specified in paragraph (c)(1) (i) and (ii) of this section for
the preparation and presentation of that party's case shall make a
motion which sets forth the justification therefor. The Presiding
Officer or the Administrator, as appropriate under this part, may grant
such motion on the record for substantial good cause shown and shall
enter a protective order prohibiting unnecessary disclosure and
requiring other necessary safeguards. The Presiding Officer or the
Administrator, as appropriate, may examine the in camera materials and
excise portions thereof before disclosing the materials to the moving
party.
(d) Segregation of in camera materials. In camera materials shall be
segregated from the public record and protected from public view.
(e) Public release of in camera materials. In camera materials
constitute a part of the confidential records of the NHTSA and shall not
be released to the public until the expiration of in camera treatment.
(f) Reference to in camera materials. In the submission of proposed
findings,
[[Page 52]]
conclusions, briefs, or other documents, all parties shall refrain from
disclosing specific details of in camera materials. Such refraining
shall not preclude general references to such materials. To the extent
that parties consider it necessary to include specific details of in
camera materials, the references shall be incorporated into separate
proposed findings, briefs, or other documents marked ``CONFIDENTIAL,
CONTAINS IN CAMERA MATERIAL,'' which shall be placed in camera and
become part of the in camera record. These documents shall be served
only on parties accorded access to the in camera materials in accordance
with paragraph (c)(2) of this section.
Sec. 511.46 Proposed findings, conclusions, and order.
Within a reasonable time after the closing of the record and receipt
of the transcript, all parties and participants may, simultaneously,
file post-hearing briefs, including proposed findings of fact,
conclusions of law and a proposed order, together with reasons
therefore. The Presiding Officer shall establish a date certain for the
filing of the briefs, which shall not exceed 45 days after the close of
the record except in unusual circumstances. The briefs shall be in
writing, shall be served upon all parties, and shall contain adequate
references to the record and authorities relied on. Replies shall be
filed within fifteen (15) days of the date for the filing of briefs
unless otherwise established by the Presiding Officer. The parties and
participants may waive either or both submissions.
Sec. 511.47 Record.
(a) Reporting and transcription. Hearings shall be recorded and
transcribed under the supervision of the Presiding Officer by a reporter
appointed by the Administrator. The original transcript shall be a part
of the record and the official transcript. Copies of transcripts are
available from the reporter at a cost not to exceed the maximum rates
fixed by contract between the NHTSA and the reporter.
(b) Corrections. Corrections of the official transcript may be made
only when they involve errors affecting substance and then only in the
manner herein provided. The Presiding Officer may order corrections,
either on his or her own motion or on motion of any party. The Presiding
Officer shall determine the corrections to be made and so order.
Corrections shall be interlineated or otherwise inserted in the official
transcript so as not to obliterate the original text.
Sec. 511.48 Official docket.
(a) The official docket in adjudicatory proceedings will be
maintained in the Docket Section, Office of the Secretary, Room 4107,
400 Seventh Street SW., Washington, DC 20590, and will be available for
inspection during normal working hours (9:00 a.m.-5:00 p.m.) Monday
through Friday.
(b) Fees for production or disclosure of records contained in the
official docket shall be levied as prescribed in the Department of
Transportation's regulations on Public Availability of Information (49
CFR part 7).
[53 FR 15783, May 3, 1988]
Sec. 511.49 Fees.
(a) Witnesses. Any person compelled to appear in person in response
to a subpoena or notice of oral examination shall be paid at least the
same attendance and mileage fees as are paid witnesses in the courts of
the United States, in accordance with title 28, U.S.C., section 1821.
(b) Responsibility. The fees and mileage referred to in this section
shall be paid by the party at whose instance witnesses appear.
Subpart F_Decision
Sec. 511.51 Initial decision.
(a) When filed. The Presiding Officer shall endeavor to file an
Initial Decision with the Administrator within sixty (60) days of the
close of the record, the filing of post-hearing briefs, or the filing of
replies thereto, whichever is latest.
(b) Content. The Initial Decision shall be based upon a
consideration of the entire record and it shall be supported by
reliable, probative, and substantial evidence. It shall include:
(1) Findings and conclusions, as well as the reasons or bases
therefor, upon
[[Page 53]]
the material questions of fact, material issues of law, or discretion
presented on the record, and should, where practicable, be accompanied
by specific page citations to the record and to legal and other
materials relied upon.
(2) An appropriate order.
(c) By whom made. The Initial Decision shall be made and filed by
the Presiding Officer who presided over the hearing, unless otherwise
ordered by the Administrator.
(d) Reopening of proceeding by presiding officer; termination of
jurisdiction. (1) At any time prior to or concomitant with the filing of
the Initial Decision, the Presiding Officer may reopen the proceedings
for the reception of further evidence.
(2) Except for the correction of clerical errors, the jurisdiction
of the Presiding Officer is terminated upon the filing of the Initial
Decision, unless and until the proceeding is remanded to the Presiding
Officer by the Administrator.
Sec. 511.52 Adoption of initial decision.
The Initial Decision and Order shall become the Final Decision and
Order of the Administrator forty (40) days after issuance unless an
appeal is noted and perfected or unless review is ordered by the
Administrator. Upon the expiration of the fortieth day, the Executive
Secretary shall prepare, sign and enter an order adopting the Initial
Decision and Order.
Sec. 511.53 Appeal from initial decision.
(a) Who may file notice of intention. Any party may appeal an
Initial Decision to the Administrator provided that within ten (10) days
after issuance of the Initial Decision such party files and serves a
notice of intention to appeal.
(b) Appeal brief. The appeal shall be in the form of a brief, filed
within forty (40) days after service of the Initial Decision, duly
served upon all parties and participants. The appeal brief shall
contain, in the order indicated, the following:
(1) A subject index of the matters in the brief, with page
references, and a table of cases (alphabetically arranged), textbooks,
statutes, and other material cited, with page references thereto;
(2) A concise statement of the case;
(3) A specification of the position urged;
(4) The argument, presenting clearly the points of fact and law
relied upon in support of the position on each question, with specific
page references to the record and the legal or other material relied
upon; and
(5) A proposed form of order for the Administrator's consideration
in lieu of the order contained in the Initial Decision.
(c) Answering brief. Within thirty (30) days after service of the
appeal brief upon all parties and participants, any party may file an
answering brief which shall also contain a subject index, with page
references, and a table of cases (alphabetically arranged), textbooks,
statutes, and other material cited, with page references thereto. Such
brief shall present clearly the points of fact and law relied upon in
support of the position taken on each question, with specific page
references to the record and legal or other material relied upon.
(d) Participant's brief. Within thirty (30) days after service of
the appeal brief upon all parties and participants, any participant may
file an appeal brief which should contain a subject index, with page
references, and a table of authorities being relied upon. Such brief
shall present clearly the position taken by the participant on each
question raised by the appellant(s).
(e) Cross appeal. If a timely notice of appeal is filed by a party,
any other party may file a notice of cross-appeal within ten (10) days
of the date on which the first notice of appeal was filed. Cross-appeals
shall be included in the answering brief and shall conform to the
requirements for form, content and filing specified in paragraph (c) of
this section. If an appeal is noticed but not perfected, no cross-appeal
shall be permitted and the notice of cross-appeal shall be deemed void.
(f) Reply brief. A reply brief shall be limited to rebuttal of
matters in answering briefs, including matters raised in cross-appeals.
A reply brief shall be filed and within fourteen (14) days after service
of an answering
[[Page 54]]
brief, or on the day preceding the oral argument, whichever comes first.
(g) Oral argument. The purpose of an oral argument is to emphasize
and clarify the issues. Any party may request oral argument. The
Administrator may order oral argument upon request or upon his or her
own initiative. All oral arguments shall be reported and transcribed.
Sec. 511.54 Review of initial decision in absence of appeal.
The Administrator may, by order, review a case not otherwise
appealed by a party. Thereupon the parties shall and participants may
file briefs in accordance with Sec. 511.53(b), (c), (d), (e), and (f)
except that the Administrator may, in his or her discretion, establish a
different briefing schedule in his or her order. Any such order shall
issue within forty (40) days of issuance of the Initial Decision. The
order shall set forth the issues which the Administrator will review.
Sec. 511.55 Final decision on appeal or review.
(a) Upon appeal from or review of an Initial Decision, the
Administrator shall consider such parts of the record as are cited or as
may be necessary to resolve the issues presented and, in addition,
shall, to the extent necessary or desirable, exercise all the powers
which he or she could have exercised if he or she had made the Initial
Decision.
(b) In rendering his or her decision, the Administrator shall adopt,
modify, or set aside the findings, conclusions, and order contained in
the Initial Decision, and shall include in his or her Final Decision a
statement of the reasons or bases for his or her action. The
Administrator shall issue an order reflecting his or her Final Decision.
Sec. 511.56 Reconsideration.
Within twenty (20) days after issuance of a Final Decision and
Order, any party may file with the Administrator a petition for
reconsideration of such decision or order, setting forth the relief
desired and the grounds in support thereof. Any party desiring to oppose
such a petition shall file an answer thereto within ten (10) days after
service of the petition. The filing of a petition for reconsideration
shall not stay the effective date of the Decision and Order or toll the
running of any statutory time period affecting the decision or order
unless specifically so ordered by the Administrator.
Sec. 511.57 Effective date of order.
(a) Consent orders. An order which has been issued following
acceptance of an offer of settlement in accordance with Sec. 511.26
becomes effective upon issuance.
(b) Litigated orders. All other orders become effective upon the
expiration of the statutory period for court review specified in section
508(c)(1) of the Motor Vehicle Information and Cost Savings Act, title
15, U.S.C. section 2008(c)(1), Pub. L. 94-163, 89 Stat. 911, or, if a
petition for review has been filed, upon court affirmance of the
Administrator's order.
Subpart G_Settlement Procedure in Cases of Violation of Average Fuel
Economy Standards
Sec. 511.61 Purpose.
This subpart establishes the procedures and requirements necessary
to obtain a settlement of a case of violation of section 507 (1) or (2)
of the Motor Vehicle Information and Cost Savings Act, as amended, Pub.
L. 94-163, 89 Stat. 911 (15 U.S.C. section 2007(1)(2)). No settlement of
such cases may be had except as in accordance with this subpart.
Sec. 511.62 Definitions.
Average fuel economy standard means an average fuel economy standard
established by or pursuant to the Motor Vehicle Information and Cost
Savings Act.
Insolvency means the inability to meet expenses when due.
Settlement means a compromise, modification, or remission of a civil
penalty assessed under this part for a violation of an average fuel
economy standard.
Sec. 511.63 Criteria for settlement.
Settlement of a case of violation of an average fuel economy
standard is discretionary with the Administrator.
[[Page 55]]
The Administrator will consider settlement only to the extent:
(a) Necessary to prevent the insolvency or bankruptcy of the person
seeking settlement, or
(b) That the violation of the average fuel economy standard
resulted, as shown by the person seeking settlement, from an act of God,
a strike, or fire, or
(c) That modification of a civil penalty assessed under this part is
necessary to prevent lessening of competition, as determined and as
certified by the Federal Trade Commission under section 508(b)(4) of the
Motor Vehicle Information and Cost Savings Act, Pub. L. 94-163, 89 Stat.
911 (15 U.S.C. section 2008(b)(4)).
Sec. 511.64 Petitions for settlement; timing, contents.
(a) A petition seeking settlement under this subpart must be filed
within 30 days after the issuance of a final order assessing a civil
penalty for a violation of an average fuel economy standard.
(b)(1) A petition for settlement should be sufficient to allow the
Administrator to determine that at least one of the criteria set out in
Sec. 511.63 is satisfied, and that the public interest would be served
by settlement.
(2) A petition asserting that settlement is necessary to prevent
bankruptcy or insolvency must include:
(i) Copies of all pertinent financial records, auditor's reports,
and documents that show that the imposition of a civil penalty would
cause insolvency, or would cause a company to do an act of bankruptcy,
and
(ii) A payment schedule that would allow the petitioner to pay a
civil penalty without resulting in insolvency or an act of bankruptcy.
(3) A petition asserting that the violation of the average fuel
economy standard was caused by an act of God, fire, or strike must
describe corrective and ameliorative steps taken to mitigate the effects
of the act of God, fire, or strike.
(4) A petition based on a certification by the Federal Trade
Commission that modification of the civil penalty assessed is necessary
to prevent a substantial lessening of competition must include a
certified copy of:
(i) The application to the Federal Trade Commission for a
certification under section 508(b)(4) of the Motor Vehicle Information
and Cost Savings Act, Pub. L. 94-163, 89 Stat. 911 (15 U.S.C.
2008(b)(4)), and materials supporting the application.
(ii) The administrative record of any Federal Trade Commission
proceeding held in regard to the application, and
(iii) The certification by the Federal Trade Commission.
(c) It is the policy of the National Highway Traffic Safety
Administration that unconditional settlements of violations of average
fuel economy standards are not in the public interest, and absent
special and extraordinary circumstances, will not be allowed. All
petitions for settlement shall contain a section proposing conditions
for settlement. Conditions for settlement can be specific acts designed
to lead to the reduction of automotive fuel consumption, which the
petitioner is not otherwise required to perform pursuant to any statute,
regulation, or administrative or judicial order, such as sponsoring
public education programs, advertising, accelerating commercial
application of technology, accelerating technology development programs,
or making public the results of privately performed studies, surveys, or
research activities.
Sec. 511.65 Public comment.
Notice and opportunity for comment are provided to the public in
regard to settlements under this part. Subject to Sec. 511.66, notice
of receipt of a petition for settlement is published in the Federal
Register, and a copy of such petitions and any supporting information is
placed in a public docket. Any settlement agreed to by the Administrator
shall be placed in the public docket for 30 days so that interested
persons may comment thereon. No settlement is binding until the
completion of that thirty day period.
Sec. 511.66 Confidential business information.
The Administrator shall have authority to segregate from the public
docket
[[Page 56]]
and to protect from public view information in support of a petition for
settlement which has been determined to be confidential business
information. The provisions of 15 U.S.C. 2005(d) pertaining to
discretionary release by the Administrator of and to limited disclosure
of information determined to be confidential business information shall
apply to this section.
Sec. 511.67 Settlement order.
If, in accordance with this subpart, the Administrator allows a
settlement of a case of violation of an average fuel economy standard,
an order of settlement shall be issued, setting out the terms of the
settlement, and containing a brief discussion of the factors underlying
the exercise of the Administrator's discretion in allowing the
settlement, including a discussion of comments received under Sec.
511.65. If the Administrator rejects a petition for settlement, the
Administrator shall give written notice of the rejection and the reasons
for the rejection to the parties and the Presiding Officer.
[53 FR 15783, May 3, 1988]
Subpart H_Appearances; Standards of Conduct
Sec. 511.71 Who may make appearances.
A party or participant may appear in person, or by a duly authorized
officer, partner, regular employee, or other agent of this party or
participant, or by or with counsel or other duly qualified
representative, in any proceeding under this part.
Sec. 511.72 Authority for representation.
Any individual acting in a representative capacity in any
adjudicative proceeding may be required by the Presiding Officer or the
Administrator to show his or her authority to act in such capacity. A
regular employee of a party who appears on behalf of the party shall be
required by the Presiding Officer or the Administrator to show his or
her authority to so appear.
Sec. 511.73 Written appearances.
(a) Any person who appears in a proceeding shall file a written
notice of appearance with the Executive Secretary or deliver a written
notice of appearance to the reporter at the hearing, stating for whom
the appearance is made and the name, address, and telephone number
(including area code) of the person making the appearance and the date
of the commencement of the appearance. The written appearance shall be
made a part of the record.
(b) Any person who has previously appeared in a proceeding may
withdraw his or her appearance by filing a written notice of withdrawal
of appearance with the Docket Section. The notice of withdrawal shall
state the name, address, and telephone number (including area code) of
the person withdrawing the appearance, for whom the appearance was made,
and the effective date of the withdrawal of the appearance, and such
notice of withdrawal shall be filed within five (5) days of the
effective date of the withdrawal of the appearance.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988]
Sec. 511.74 Attorneys.
An attorney at law who is admitted to practice before the Federal
courts or before the highest court of any State, the District of
Columbia, or any territory or Commonwealth of the United States, may
practice before the NHTSA. An attorney's own representation that he or
she is in good standing before any of such courts shall be sufficient
proof thereof, unless otherwise ordered by the Presiding Officer or the
Administrator.
Sec. 511.75 Persons not attorneys.
(a) Any person who is not an attorney at law may be admitted to
appear in an adjudicative proceeding if that person files proof to the
satisfaction of the Presiding Officer that he or she possesses the
necessary legal, technical or other qualifications to render valuable
service in the proceeding and is otherwise competent to advise and
assist in the presentation of matters in the proceedings. An application
by a person not an attorney at law to appear in a proceeding shall be
submitted in writing to the Docket Section, not later than thirty (30)
days prior to the hearing in the proceedings. The application shall set
forth the applicant's
[[Page 57]]
qualifications to appear in the proceedings.
(b) No person who is not an attorney at law and whose application
has not been approved shall be permitted to appear in the
Administration's proceedings. However, this provision shall not apply to
any person who appears before the NHTSA on his or her own behalf or on
behalf of any corporation, partnership, or association of which the
person is a partner, officer, or regular employee.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15784, May 3, 1988]
Sec. 511.76 Qualifications and standards of conduct.
(a) The NHTSA expects all persons appearing in proceedings before it
to act with integrity, with respect, and in an ethical manner. Business
transacted before and with the NHTSA shall be in good faith.
(b) To maintain orderly proceedings, the Presiding Officer or the
Administrator, as appropriate under this part, may exclude parties,
participants, and their representatives for refusal to comply with
directions, continued use of dilatory tactics, refusal to adhere to
reasonable standards of orderly and ethical conduct, failure to act in
good faith, or violation of the prohibition against certain ex parte
communications. The Presiding Officer may, in addition to the above
sanctions, deny access to additional in camera materials when a party or
participant publicly releases such materials without authorization.
(c) An excluded party, participant, or representative thereof may
petition the Administrator to entertain an interlocutory appeal in
accordance with Sec. 511.24. If, after such appeal, the representative
of a party or participant, is excluded, the hearing shall, at the
request of the party or participant, be suspended for a reasonable time
so that the party or participant may obtain another representative.
Sec. 511.77 Restrictions as to former members and employees.
The postemployee restrictions applicable to former Administrators
and NHTSA employees, as set forth in 18 U.S.C. 207, shall govern the
activities of former Administrators and NHTSA employees in matters
connected with their former duties and responsibilities.
Sec. 511.78 Prohibited communications.
(a) Applicability. This section is applicable during the period
commencing with the date of issuance of a complaint and ending upon
final NHTSA action in the matter.
(b) Definitions. (1) ``Decision-maker'' means those NHTSA personnel
who render decisions in adjudicative proceedings under this part, or who
advise officials who render such decisions, including:
(i) The Administrator,
(ii) The Administrative Law Judges;
(2) ``Ex parte communication'' means:
(i) Any written communication other than a request for a status
report on the proceeding made to a decisionmaker by any person other
than a decisionmaker which is not served on all parties,
(ii) Any oral communication other than a request for a status report
on the proceeding made to a decisionmaker by any person other than a
decisionmaker without advance notice to the parties to the proceeding
and opportunity for them to be present.
(c) Prohibited ex parte communications. Any oral or written ex parte
communication relative to the merits of a proceeding under this part is
a prohibited ex parte communication, except as provided in paragraph (d)
of this section.
(d) Permissible ex parte communications. The following
communications shall not be prohibited under this section:
(1) Ex parte communications authorized by statute or by this part.
(2) Any staff communication concerning judicial review or judicial
enforcement in any matter pending before or decided by the
Administrator.
(e) Procedures for handling prohibited ex parte communication--(1)
Prohibited written ex parte communication. To the extent possible, a
prohibited written ex parte communication received by any NHTSA employee
shall be forwarded to the Docket Section rather than to a decisionmaker.
A prohibited written ex parte communication which reaches a
[[Page 58]]
decisionmaker shall be forwarded by the decisionmaker to the Docket
Section. If the circumstances in which a prohibited ex parte written
communication was made are not apparent from the communication itself, a
statement describing those circumstances shall be forwarded with the
communication.
(2) Prohibited oral ex parte communication. (i) If a prohibited oral
ex parte communication is made to a decisionmaker, he or she shall
advise the person making the communication that the communication is
prohibited and shall terminate the discussion.
(ii) In the event of a prohibited oral ex parte communication, the
decisionmaker shall forward to the Docket Section a dated statement
containing such of the following information as is known to him/her:
(A) The title and docket number of the proceeding;
(B) The name and address of the person making the communication and
his/her relationship (if any) to the parties to the proceeding;
(C) The date and time of the communication, its duration, and the
circumstances (telephone call, personal interview, etc.) under which it
was made;
(D) A brief statement of the substance of the matters discussed;
(E) Whether the person making the communication persisted in doing
so after being advised that the communication was prohibited.
(3) All communications and statements forwarded to the Docket
Section under this section shall be placed in the public file which
shall be associated with, but not made a part of, the record of the
proceedings to which the communication or statement pertains.
(4) Service on parties. The Administrator shall serve a copy of each
communication and statement forwarded under this section on all parties
to the proceedings. However, if the parties are numerous, or if other
circumstances satisfy the Administrator that service of the
communication or statement would be unduly burdensome, he or she may, in
lieu of service, notify all parties in writing that the communication or
statement has been made and filed and that it is available for
inspection and copying.
(5) Service on maker. The Administrator shall forward to the person
who made the prohibited ex parte communication a copy of each
communication or statement filed under this section.
(f) Effect of ex parte communications. No prohibited ex parte
communication shall be considered as part of the record for decision
unless introduced into evidence by a party to the proceedings.
(g) Sanctions. A party or participant who makes a prohibited ex
parte communication, or who encourages or solicits another to make any
such communication, may be subject to any appropriate sanction or
sanctions, including, but not limited to, exclusion from the proceedings
and adverse rulings on the issues which are the subject of the
prohibited communication.
[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15784, May 3, 1988]
Sec. Appendix I to Part 511--Final Prehearing Order
Case Caption
Final Prehearing Order
A prehearing conference was held in this matter pursuant to Rule 21
of the Administration's Rules of Practice for Adjudicative Proceedings,
on the -------------------- day of --------------------, 19----, at ----
o'clock -- M.
Counsel appeared as follows:
For the Administration staff:
For the Respondent(s):
Others:
1. NATURE OF ACTION AND JURISDICTION.
This is an action for --------------------
________________________________________________________________________
and the jurisdiction of the Administration is involved under Section --
-- of Title ---- U.S.C. The jurisdiction of the Administration is (not)
disputed. The questions of jurisdiction was decided as follows:
2. STIPULATIONS AND STATEMENTS.
The following stipulations and statements were submitted, attached
to, and made a part of this order:
(a) A comprehensive written stipulation or statement of all
uncontested facts;
(b) A concise summary of the ultimate facts as claimed by each
party. (Complaint Counsel must set forth the claimed facts,
specifically; for example, if violation is
[[Page 59]]
claimed, Complaint Counsel must assert specifically the acts of
violation complained of; each respondent must reply with equal clarity
and detail.)
(c) Written stipulations or statements setting forth the
qualifications of the expert witnesses to be called by each party;
(d) A written list or lists of the witnesses whom each party will
call, a written list or lists of the additional witnesses whom each
party may call, and a statement of the subject on which each witness
will testify;
(e) An agreed statement of the contested issues of fact and of law,
and/or separate statements by each party or any contested issues of fact
and law not agreed to;
(f) A list of all depositions to be read into evidence and
statements of any objections thereto;
(g) A list and brief description of any charts, graphs, models,
schematic diagrams, and similar objects that will be used in opening
statements or closing arguments, but will not be offered in evidence. If
any other such objects are to be used by any party, they will be
submitted to opposing counsel at least three days prior to hearing. If
there is then any objection to their use, the dispute will be submitted
to the Presiding Officer at least one day prior to hearing;
(h) Written waivers of claims or defenses which have been abandoned
by the parties.
The foregoing were modified at the pretrial conference as follows:
[To be completed at the conference itself. If none, recite ``none'']
3. COMPLAINT COUNSEL'S EVIDENCE.
3.1 The following exhibits were offered by Complaint Counsel,
received in evidence, and marked as follows:
[Identification number and brief description of each exhibit]
The authenticity of these exhibits has been stipulated.
3.2 The following exhibits were offered by the Complaint Counsel and
marked for identification. There was reserved to the respondent(s) and
party intervenors, if any, the right to object to their receipt in
evidence on the grounds stated:
[Identification number and brief description of each exhibit. State
briefly ground of objection, e.g., competency, relevancy, materiality]
4. RESPONDENT'S EVIDENCE.
4.1 The following exhibits were offered by the respondent(s),
received in evidence, and marked as herein indicated:
[Identification number and brief description of each exhibit]
The authenticity of these exhibits has been stipulated.
4.2 The following exhibits were offered by the respondent(s) and
marked for identification. There was reserved to Complaint Counsel and
party intervenors, if any, the right to object to their receipt in
evidence on the grounds stated:
[Identification number and brief description of each exhibit. State
briefly ground of objection, e.g., competency, relevancy, materiality]
5. ADDITIONAL ACTIONS.
The following additional action was taken:
[Amendments to pleadings, agreements of the parties, disposition of
motions, separation of issues of liability and remedy, etc., if
necessary]
6. LIMITATIONS AND RESERVATIONS.
6.1 Each of the parties has the right to further supplement the list
of witnesses not later than ten (10) days prior to trial by furnishing
opposing counsel with the name and address of the witness and general
subject matter of his or her testimony and filing a supplement to this
pretrial order. Thereafter additional witnesses may be added only after
application to the Presiding Officer, for good cause shown.
6.2 Rebuttal witnesses not listed in the exhibits to this order may
be called only if the necessity of their testimony could not reasonably
be foreseen ten (10) days prior to trial. If it appears to counsel at
any time before trial that such rebuttal witnesses will be called,
notice will immediately be given to opposing counsel and the Presiding
Officer.
6.3 The probable length of hearing is -------- days. The hearings
will be commenced on the ---- day of ----------, 19----, at ---- o'clock
-- M. at (location) ----------.
6.4 Prehearing briefs will be filed not later than 5:00 p.m. on ----
----. (Insert date not later than ten (10) days prior to hearing.) All
anticipated legal questions, including those relating to the
admissibility of evidence, must be covered by prehearing briefs.
This prehearing order has been formulated after a conference at
which counsel for the respective parties appeared. Reasonable
opportunity has been afforded counsel for corrections or additions prior
to signing. It will control the course of the hearing, and it may not be
amended except by consent of the parties and the Presiding Officer, or
by order of the Presiding Officer to prevent manifest injustice.
________________________________________________________________________
(Presiding Officer's Name)
(Presiding Officer's Title)
[[Page 60]]
APPROVED AS TO FORM AND SUBSTANCE
Date: ----------.
________________________________________________________________________
Complaint Counsel.
________________________________________________________________________
Attorney for Respondent(s).
Note: Where intervenors appear pursuant to Sec. 511.17 the
prehearing order may be suitably modified; the initial page may be
modified to reflect the intervention.
PART 512_CONFIDENTIAL BUSINESS INFORMATION--Table of Contents
Subpart A_General Provisions
Sec.
512.1 Purpose and scope.
512.2 Applicability.
512.3 Definitions.
Subpart B_Submission Requirements
512.4 When requesting confidentiality, what should I submit?
512.5 How many copies should I submit?
512.6 How should I prepare documents when submitting a claim for
confidentiality?
512.7 Where should I send the information for which I am requesting
confidentiality?
512.8 What supporting information should I submit with my request?
Subpart C_Additional Requirements
512.9 What are the requirements if the information comes from a third
party?
512.10 Duty to amend.
512.11 What if I need an extension of time?
512.12 What if I am submitting multiple items of information?
512.13 What are the consequences for noncompliance with this part?
Subpart D_Agency Determination
512.14 Who makes the confidentiality determination?
512.15 How will confidentiality determinations be made?
512.16 Class determinations.
512.17 How long should it take to determine whether information is
entitled to confidential treatment?
512.18 How will I be notified of the confidentiality determination?
512.19 What can I do if I disagree with the determination?
Subpart E_Agency Treatment of Information Claimed To Be Confidential
512.20 How does the agency treat information submitted pursuant to this
part before a confidentiality determination is made?
512.21 How is information submitted pursuant to this part treated once a
confidentiality determination is made?
512.22 Under what circumstances may NHTSA modify a grant of
confidentiality?
512.23 Under what circumstances may NHTSA publicly release confidential
information?
Appendix A to Part 512--Certificate in Support of Request for
Confidentiality
Appendix B to Part 512--General Class Determinations
Appendix C to Part 512--Early Warning Reporting Class Determinations
Appendix D to Part 512--Vehicle Identification Number Information
Appendix E to Part 512--Consumer Assistance to Recycle and Save (CARS)
Class Determinations
Appendix F to Part 512--OMB Clearance
Authority: 49 U.S.C. 322; 5 U.S.C. 552; 49 U.S.C. 30166; 49 U.S.C.
30167; 49 U.S.C. 32307; 49 U.S.C. 32505; 49 U.S.C. 32708; 49 U.S.C.
32910; 49 U.S.C. 33116; delegation of authority at 49 CFR 1.50.
Source: 68 FR 44228, July 28, 2003, unless otherwise noted.
Subpart A_General Provisions
Sec. 512.1 Purpose and scope.
The purpose of this part is to establish the procedures and
standards by which NHTSA will consider claims that information submitted
to the agency is entitled to confidential treatment under 5 U.S.C.
552(b), most often because it constitutes confidential business
information as described in 5 U.S.C. 552(b)(4), and to address the
treatment of information determined to be entitled to confidential
treatment.
Sec. 512.2 Applicability.
(a) This part applies to all information submitted to NHTSA, except
as provided in paragraph (b) of this section, for which a determination
is sought that the material is entitled to confidential treatment under
5 U.S.C.
[[Page 61]]
552(b), most often because it constitutes confidential business
information as described in 5 U.S.C. 552(b)(4), and should be withheld
from public disclosure.
(b) Information received as part of the procurement process is
subject to the Federal Acquisition Regulation, 48 CFR Chapter 1, as well
as this part. In any case of conflict between the Federal Acquisition
Regulation and this part, the provisions of the Federal Acquisition
Regulation prevail.
Sec. 512.3 Definitions.
Whenever used in this part:
(a) Administrator means the Administrator of the National Highway
Traffic Safety Administration.
(b) Chief Counsel means the Chief Counsel of the National Highway
Traffic Safety Administration.
(c) Confidential business information means trade secrets or
commercial or financial information that is privileged or confidential,
as described in 5 U.S.C. 552(b)(4).
(1) A trade secret is a secret, commercially valuable plan, formula,
process, or device that is used for the making, preparing, compounding,
or processing of trade commodities and that can be said to be the end
product of either innovation or substantial effort.
(2) Commercial or financial information is considered confidential
if it has not been publicly disclosed and:
(i) If the information was required to be submitted and its release
is likely to impair the Government's ability to obtain necessary
information in the future, or is likely to cause substantial harm to the
competitive position of the person from whom the information was
obtained; or
(ii) if the information was voluntarily submitted and is the kind of
information that is customarily not released to the public by the person
from whom it was obtained.
(d) NHTSA means the National Highway Traffic Safety Administration.
(e) ``Substantial competitive harm'' includes ``significant
competitive damage'' under Chapter 329 of Title 49 of the United States
Code, Automobile Fuel Economy, 49 U.S.C. 32910(c).
Subpart B_Submission Requirements
Sec. 512.4 When requesting confidentiality, what should I submit?
Any person submitting information to NHTSA, other than information
in a class identified in appendix C of this Part, and requesting that
the information be withheld from public disclosure pursuant to 5 U.S.C.
552(b) shall submit the following:
(a) The materials for which confidentiality is being requested, in
conformance with Sec. Sec. 512.5, 512.6, and 512.7 of this part;
(b) The Certificate, in the form set out in appendix A to this part;
(c) Supporting information, in conformance with Sec. 512.8; and
(d) Any request for an extension of time, made in accordance with
Sec. 512.11.
Sec. 512.5 How many copies should I submit?
(a) Except as provided for in subsection (c), a person must send the
following in hard copy or electronic format to the Chief Counsel when
making a claim for confidential treatment covering submitted material:
(1) A complete copy of the submission, and
(2) A copy of the submission containing only the portions for which
no claim of confidential treatment is made and from which those portions
for which confidential treatment is claimed has been redacted, and
(3) Either a second complete copy of the submission or,
alternatively, those portions of the submission containing the material
for which confidential treatment is claimed and any additional
information the submitter deems important to the Chief Counsel's
consideration of the claim.
(4) If submitted in electronic format, a copy of any special
software required to review materials for which confidential treatment
is requested and user instructions must also be provided.
(b) A person filing comments to a rulemaking action must
additionally submit to the rulemaking docket a copy of the submission
containing only the portions for which no claim of confidential
treatment is made and from
[[Page 62]]
which those portions for which confidential treatment is claimed has
been redacted.
(c) Any person submitting blueprints or engineering drawings need
only provide an original version with their submission.
Sec. 512.6 How should I prepare documents when submitting a claim
for confidentiality?
(a) Information claimed to be confidential must be clearly
identified to enable the agency to distinguish between those portions of
the submission claimed to constitute confidential business information
and those portions for which no such claim is made.
(b) The word ``CONFIDENTIAL'' must appear on the top of each page
containing information claimed to be confidential.
(1) If an entire page is claimed to be confidential, the submitter
must indicate clearly that the entire page is claimed to be
confidential.
(2) If the information for which confidentiality is being requested
is contained within a page, the submitter shall enclose each item of
information that is claimed to be confidential within brackets: ``[ ].''
(c) Submissions in electronic format--(1) Persons submitting
information under this Part may submit the information in an electronic
format. Except for early warning reporting data submitted to the agency
under 49 CFR part 579, the information submitted in an electronic format
shall be submitted in a physical medium such as a CD-ROM. The exterior
of the medium (e.g., the disk itself) shall be permanently labeled with
the submitter's name, the subject of the information and the words
``CONFIDENTIAL BUSINESS INFORMATION''.
(2) Confidential portions of electronic files submitted in other
than their original format must be marked ``Confidential Business
Information'' or ``Entire Page Confidential Business Information'' at
the top of each page. If only a portion of a page is claimed to be
confidential, that portion shall be designated by brackets. Files
submitted in their original format that cannot be marked as described
above must, to the extent practicable, identify confidential information
by alternative markings using existing attributes within the file or
means that are accessible through use of the file's associated program.
When alternative markings are used, such as font changes or symbols, the
submitter must use one method consistently for electronic files of the
same type within the same submission. The method used for such markings
must be described in the request for confidentiality. Files and
materials that cannot be marked internally, such as video clips or
executable files or files provided in a format specifically requested by
the agency, shall be renamed prior to submission so the words
``Confidential Bus Info'' appears in the file name or, if that is not
practicable, the characters ``Conf Bus Info'' or ``Conf'' appear. In all
cases, a submitter shall provide an electronic copy of its request for
confidential treatment on any medium containing confidential
information, except where impracticable.
(3) Confidential portions of electronic files submitted in other
than their original format must be marked with consecutive page numbers
or sequential identifiers so that any page can be identified and located
using the file name and page number. Confidential portions of electronic
files submitted in their original format must, if practicable, be marked
with consecutive page numbers or sequential identifiers so that any page
can be identified and located using the file name and page number.
Confidential portions of electronic files submitted in their original
format that cannot be marked as described above must, to the extent
practicable, identify the portions of the file that are claimed to be
confidential through the use of existing indices or placeholders
embedded within the file. If such indices or placeholders exist, the
submitter's request for confidential treatment shall clearly identify
them and the means for locating them within the file. If files submitted
in their original format cannot be marked with page or sequence number
designations and do not contain existing indices or placeholders for
locating confidential information, then the portions of the files that
are claimed to be confidential shall be described by other means
[[Page 63]]
in the request for confidential treatment. In all cases, submitters
shall provide an electronic copy of their request for confidential
treatment on any media containing confidential data except where
impracticable.
(4) Electronic media may be submitted only in commonly available and
used formats.
[68 FR 44228, July 28, 2003, as amended at 72 FR 59469, Oct. 19, 2007]
Sec. 512.7 Where should I send the information for which I am
requesting confidentiality?
A claim for confidential treatment must be submitted in accordance
with the provisions of this regulation to the Chief Counsel of the
National Highway Traffic Safety Administration, 1200 New Jersey Avenue,
SE., West Building W41-227, Washington, DC 20590.
[72 FR 59470, Oct. 19, 2007]
Sec. 512.8 What supporting information should I submit with my
request?
When requesting confidentiality, the submitter shall:
(a) Describe the information for which confidentiality is being
requested;
(b) Identify the confidentiality standard(s) under which the
confidentiality request should be evaluated, in accordance with Sec.
512.15;
(c) Justify the basis for the claim of confidentiality under the
confidentiality standard(s) identified pursuant to paragraph (b) of this
section by describing:
(1) Why the information qualifies as a trade secret, if the basis
for confidentiality is that the information is a trade secret;
(2) What the harmful effects of disclosure would be and why the
effects should be viewed as substantial, if the claim for
confidentiality is based upon substantial competitive harm;
(3) What significant NHTSA interests will be impaired by disclosure
of the information and why disclosure is likely to impair such
interests, if the claim for confidentiality is based upon impairment to
government interests;
(4) What measures have been taken by the submitter to ensure that
the information is not customarily disclosed or otherwise made available
to the public, if the basis for confidentiality is that the information
is voluntarily submitted; and
(5) The information is otherwise entitled to protection, pursuant to
5 U.S.C. 552(b).
(d) Indicate if any items of information fall within any of the
class determinations included in appendix B to this Part;
(e) Indicate the time period during which confidential treatment is
sought; and
(f) State the name, address, and telephone number of the person to
whom NHTSA's response and any inquiries should be directed.
Subpart C_Additional Requirements
Sec. 512.9 What are the requirements if the information comes
from a third party?
Where confidentiality is claimed for information obtained by the
submitter from a third party, such as a supplier, the submitter is
responsible for obtaining from the third party the information that is
necessary to comply with Sec. 512.4 of this part, including a
certificate in the form set out in appendix A to this Part.
Sec. 512.10 Duty to amend.
The submitter shall promptly amend any supporting information
provided under Sec. 512.4 if the submitter obtains information upon the
basis of which the submitter knows that the supporting information was
incorrect when provided, or that the supporting information, though
correct when provided to the agency, is no longer correct and the
circumstances are such that a failure to amend the supporting
information is in substance a knowing concealment.
Sec. 512.11 What if I need an extension of time?
If a person is unable to submit the necessary information required
under Sec. 512.4 at the time the claimed confidential information is
submitted to NHTSA, then that person may request an extension of time.
Any request for an extension shall explain the reason
[[Page 64]]
for the extension of time and the length of time requested.
Sec. 512.12 What if I am submitting multiple items of information?
Any certificate provided under Sec. 512.4(b) of this part, and any
supporting information provided under Sec. 512.4(c) of this part, may
be used to support a claim for confidential treatment of more than one
item of information. However, general or nonspecific assertions or
analysis may be insufficient to form an adequate basis for the agency to
find that the information is entitled to confidential treatment, and may
result in the denial of the claim.
Sec. 512.13 What are the consequences for noncompliance with this
part?
(a) If the submitter fails to comply with Sec. 512.4 of this part
at the time the information is submitted to NHTSA or does not request an
extension of time under Sec. 512.11, the claim for confidentiality may
be waived, unless the agency is notified or otherwise becomes aware of
the claim before the information is disclosed to the public. If the
information is placed in a public docket or file, such placement is
disclosure to the public within the meaning of this part and may
preclude any claim for confidential treatment. The Chief Counsel may
notify a submitter of information or, if applicable, a third party from
whom the information was obtained, of inadequacies regarding a claim for
confidential treatment and may allow the submitter or third party
additional time to supplement the submission, but has no obligation to
provide either notice or additional time.
(b) If the submitter does not provide the certificate required under
Sec. 512.4(b) of this part or any supporting information required under
Sec. 512.4(c) of this part, or if the information is insufficient to
establish that the information should be afforded confidential treatment
under the confidentiality standards set out in Sec. 512.15 of this
part, a request that such information be treated confidentially may be
denied. The Chief Counsel may notify a submitter of information of
inadequacies in the supporting information and may allow the submitter
additional time to supplement the showing, but has no obligation to
provide either notice or additional time.
Subpart D_Agency Determination
Sec. 512.14 Who makes the confidentiality determination?
The Chief Counsel will determine whether an item of information will
be afforded confidential treatment under this part.
Sec. 512.15 How will confidentiality determinations be made?
Information may be afforded confidential treatment if the Chief
Counsel determines that:
(a) The information is a trade secret;
(b) Public disclosure of the information would be likely to cause
substantial harm to the competitive position of the submitter;
(c) Public disclosure of the information would be likely to impair
NHTSA's ability to obtain necessary information in the future;
(d) The information was provided to NHTSA voluntarily and was not
customarily released to the public by the person from whom it was
obtained; or
(e) The information is otherwise entitled to protection, pursuant to
5 U.S.C. 552(b).
Sec. 512.16 Class determinations.
(a) The Chief Counsel may issue class determinations of categories
of information to be entitled to confidential treatment if the Chief
Counsel determines that one or more characteristics common to each item
of information in that class, will, in most cases, result in identical
treatment, and further that it is appropriate to treat all such items as
a class for one or more purposes under this part. Once a class
determination is made, the Chief Counsel will publish the new class
determination in the Federal Register.
(b) The Chief Counsel may amend, modify, or terminate any class
determination established under this section. These changes will be
published in the Federal Register.
(c) Class determinations made by the Chief Counsel are listed in
Appendices B and C to this Part.
[[Page 65]]
(d) A class determination may state that all of the information in
the class:
(1) Is or is not governed by a particular section of this part or by
a particular set of substantive criteria of this part;
(2) Satisfies one or more of the applicable substantive criteria; or
(3) Satisfies one or more of the substantive criteria, but only for
a certain period of time.
Sec. 512.17 How long should it take to determine whether information
is entitled to confidential treatment?
(a) When information claimed to be confidential is requested under
the Freedom of Information Act, the determination will be made within
twenty (20) working days after NHTSA receives such a request or within
thirty (30) working days in unusual circumstances as provided under 5
U.S.C. 552(a)(6)(A). However, these time periods may be extended by the
Chief Counsel for good cause shown or on request from any person. An
extension will be made in accordance with 5 U.S.C. 552(a)(6)(A), and
will be accompanied by a written statement setting out the reasons for
the extension.
(b) When information claimed to be confidential is not requested
under the Freedom of Information Act, the determination of
confidentiality will be made within a reasonable period of time, at the
discretion of the Chief Counsel.
Sec. 512.18 How will I be notified of the confidentiality
determination?
(a) If a request for confidential treatment is granted, the
submitter of the information will be notified in writing of the
determination and of any appropriate limitations.
(b) If a request for confidential treatment is denied in whole or in
part, the submitter of the information will be notified in writing of
the determination, and the reasons for the denial, by certified mail,
return receipt requested. The information may be made available to the
public twenty (20) working days after the submitter of the information
has received notice of the denial, unless a request for reconsideration
is filed. The information may be released publicly on an earlier date,
if the Chief Counsel determines in writing that the public interest
requires that the information be made available to the public on such
date.
Sec. 512.19 What can I do if I disagree with the determination?
(a) A submitter of information whose request for confidential
treatment is denied in whole or in part, may petition for
reconsideration of that decision. Petitions for reconsideration shall be
addressed to and received by the Chief Counsel prior to the date on
which the information would otherwise be made available to the public.
The determination by the Chief Counsel upon such petition for
reconsideration shall be administratively final.
(b) If a person is unable to submit a petition for reconsideration
within twenty (20) working days of receiving notice that a claim for
confidential treatment was denied, that person may submit a request for
an extension of time. The Chief Counsel must receive any request for an
extension of time before the date on which the information would be made
available to the public, and the request must be accompanied by an
explanation describing the reason for the request and the length of time
requested. The Chief Counsel will determine whether to grant or deny the
extension and the length of the extension.
(c) If a petition for reconsideration is granted, the petitioner
will be notified in writing of the determination and of any appropriate
limitations.
(d) If a petition for reconsideration is denied in whole or in part,
or if a request for an extension is denied, the petitioner will be
notified in writing of the denial, and the reasons for the denial, and
will be informed that the information will be made available to the
public not less than twenty (20) working days after the petitioner has
received notice of the denial. The information may be released publicly
on an earlier date, if the Administrator determines in writing that the
public interest requires that the information be made available to the
public on such date.
[[Page 66]]
Subpart E_Agency Treatment of Information Claimed To Be Confidential
Sec. 512.20 How does the agency treat information submitted pursuant
to this part before a confidentiality determination is made?
(a) Information received by NHTSA, for which a properly filed
confidentiality request is submitted, will be kept confidential until
the Chief Counsel makes a determination regarding its confidentiality.
Such information will not be disclosed publicly, except in accordance
with this part.
(b) Redacted copies of documents submitted to NHTSA under this part
will be disclosed to the public.
Sec. 512.21 How is information submitted pursuant to this part
treated once a confidentiality determination is made?
(a) Once the Chief Counsel makes a determination regarding the
confidentiality of the submitted information, all materials determined
not to be entitled to confidential protection will be disclosed to the
public in accordance with the determination, unless a timely petition
for reconsideration is received by the agency.
(b) Upon receipt of a timely petition for reconsideration under
Sec. 512.19 of this part, the submitted information will remain
confidential, pending a determination regarding the petition.
(c) Should the Chief Counsel, after considering a petition for
reconsideration, decide that information is not entitled to confidential
treatment, the agency may make the information available after twenty
(20) working days after the submitter has received notice of that
decision from the Chief Counsel unless the agency receives direction
from a court not to release the information.
[68 FR 44228, July 28, 2003, as amended at 69 FR 21425, Apr. 21, 2004]
Sec. 512.22 Under what circumstances may NHTSA modify a grant
of confidentiality?
(a) The Chief Counsel may modify a grant of confidentiality based
upon:
(1) Newly discovered or changed facts;
(2) A change in the applicable law;
(3) A change in class determination, pursuant to Sec. 512.16;
(4) The passage of time; or
(5) A finding that the prior determination is erroneous.
(b) If the Chief Counsel believes that an earlier determination of
confidentiality should be modified based on one or more of the factors
listed in paragraph (a) of this section, the submitter of the
information will be notified in writing that the Chief Counsel has
modified its earlier determination and of the reasons for the
modification, and will be informed that the information will be made
available to the public in not less than twenty (20) working days from
the date of receipt of the notice of modification. The information may
be released publicly on an earlier date, if the Administrator determines
in writing that the public interest requires that the information be
made available to the public on such date. The submitter may seek
reconsideration of the modification, pursuant to Sec. 512.19.
Sec. 512.23 Under what circumstances may NHTSA publicly release
confidential information?
(a) Information that has been claimed or determined to be
confidential under this part may be disclosed to the public by the
Administrator notwithstanding such claim or determination, if disclosure
would be in the public interest as follows:
(1) Information obtained under chapter 325, 327, 329 or 331 of title
49 of the United States Code (formerly under the Motor Vehicle
Information and Cost Savings Act) may be disclosed when that information
is relevant to a proceeding under the chapter under which the
information was obtained.
(2) Information obtained under chapter 301 of title 49 of the United
States Code (49 U.S.C. Sec. 30101 et seq.), relating to the
establishment, amendment, or modification of Federal motor vehicle
safety standards, may be disclosed when relevant to a proceeding under
the chapter.
(3) Except as specified in the next sentence, information obtained
under Chapter 301 of title 49 of the United
[[Page 67]]
States Code (49 U.S.C. 30101 et seq.), related to a possible defect or
noncompliance, shall be disclosed when the Administrator decides the
information will assist in carrying out sections 30117(b) and 30118
through 30121 of title 49 or is required to be disclosed under 30118(a)
of title 49, except as provided in paragraph (a)(4) of this section.
(4) No information will be disclosed under paragraph (a) of this
section unless the submitter of the information is given written notice
of the Administrator's intention to disclose information under this
section. Written notice will be given at least twenty (20) working days
before the day of release, unless the Administrator finds that shorter
notice is in the public interest. The notice under this paragraph will
include a statement of the Administrator's reasons for deciding to
disclose the information, and will afford the submitter of the
information an opportunity to comment on the contemplated release of the
information. The Administrator may also give notice of the contemplated
release of information to other persons and may allow these persons the
opportunity to comment. In making the determination to release
information pursuant to this section, the Administrator will consider
ways to release the information that will cause the least possible
adverse effects to the submitter.
(b) Notwithstanding any other provision of this part, information
that has been determined or claimed to be confidential may be released:
(1) To a committee of Congress;
(2) Pursuant to an order of a court of competent jurisdiction;
(3) To the Office of the Secretary, U.S. Department of
Transportation and other Executive branch offices or other Federal
agencies in accordance with applicable laws;
(4) With the consent of the submitter of the information; and
(5) To contractors, if necessary for the performance of a contract
with the agency or any Federal agency, with specific prohibitions on
further release of the information.
Sec. Appendix A to Part 512--Certificate in Support of Request for
Confidentiality
Certificate in Support of Request for Confidentiality
I ----------, pursuant to the provisions of 49 CFR part 512, state
as follows:
(1) I am (official's name, title) and I am authorized by (company)
to execute this certificate on its behalf;
(2) I certify that the information contained in (pertinent
document(s)) is confidential and proprietary data and is being submitted
with the claim that it is entitled to confidential treatment under 5
U.S.C. 552(b)(4) (as incorporated by reference in and modified by the
statute under which the information is being submitted);
(3) I hereby request that the information contained in (pertinent
document(s)) be protected for (requested period of time);
(4) This certification is based on the information provided by the
responsible (company) personnel who have authority in the normal course
of business to release the information for which a claim of
confidentiality has been made to ascertain whether such information has
ever been released outside (company);
(5) Based upon that information, to the best of my knowledge,
information and belief, the information for which (company) has claimed
confidential treatment has never been released or become available
outside (company); (except as hereinafter specified);
(6) I make no representations beyond those contained in this
certificate and, in particular, I make no representations as to whether
this information may become available outside (company) because of
unauthorized or inadvertent disclosure (except as stated in paragraph
5); and
(7) I certify under penalty of perjury that the foregoing is true
and correct. Executed on this the ------ day of ------, ------. (If
executed outside of the United States of America: I certify under
penalty of perjury under the laws of the United States of America that
the foregoing is true and correct). (signature of official)
Sec. Appendix B to Part 512--General Class Determinations
The Chief Counsel has determined that the following types of
information would presumptively be likely to result in substantial
competitive harm if disclosed to the public:
(1) Blueprints and engineering drawings containing process and
production data where the subject could not be manufactured without the
blueprints or engineering drawings except after significant reverse
engineering;
[[Page 68]]
(2) Future specific model plans (to be protected only until the date
on which the specific model to which the plan pertains is first offered
for sale); and
(3) Future vehicle production or sales figures for specific models
(to be protected only until the termination of the production period for
the model year vehicle to which the information pertains).
[68 FR 44228, July 28, 2003, as amended at 69 FR 21425, Apr. 21, 2004]
Sec. Appendix C to Part 512--Early Warning Reporting Class
Determinations
(a) The Chief Counsel has determined that the following information
required to be submitted to the agency under 49 CFR 579, Subpart C, if
released, is likely to cause substantial harm to the competitive
position of the manufacturer submitting the information and is likely to
impair the government's ability to obtain necessary information in the
future:
(1) Reports and data relating to warranty claim information and
warranty adjustment information for manufacturers of tires;
(2) Reports and data relating to field reports, including dealer
reports, product evaluation reports, and hard copies of field reports;
and
(3) Reports and data relating to consumer complaints.
(b) The Chief Counsel has determined that the following information
required to be submitted to the agency under 49 CFR 579, Subpart C, if
released, is likely to cause substantial harm to the competitive
position of the manufacturer submitting the information:
(1) Reports of production numbers for child restraint systems,
tires, and vehicles other than light vehicles, as defined in 49 CFR
579.4(c); and
(2) Lists of common green tire identifiers.
[72 FR 59470, Oct. 19, 2007]
Sec. Appendix D to Part 512--Vehicle Identification Number
Information
The Chief Counsel has determined that the disclosure of the last six
(6) characters, when disclosed along with the first eleven (11)
characters, of vehicle identification numbers reported in information on
incidents involving death or injury pursuant to the early warning
information requirements of 49 CFR part 579 will constitute a clearly
unwarranted invasion of personal privacy within the meaning of 5 U.S.C.
552(b)(6).
[72 FR 59470, Oct. 19, 2007]
Sec. Appendix E to Part 512--Consumer Assistance to Recycle and Save
(CARS) Class Determinations
(a) The Chief Counsel has determined that the following information
required to be submitted to the agency under 49 CFR part 599, if
released, is likely to cause substantial harm to the competitive
position of the entity submitting the information:
(1) Vehicle Manufacturer Issued Dealer Identification Code;
(2) Dealer Bank Name, ABA Routing Number and Bank Account Number;
and
(3) CARS Dealer Code and Authorization Code.
(b) The Chief Counsel has determined that the disclosure of the new
vehicle owner's name, home address, telephone number, state
identification number and last six (6) characters, when disclosed along
with the first eleven (11) characters, of the new vehicle identification
numbers reported in transactions submitted to the agency under 49 CFR
Part 599 will constitute a clearly unwarranted invasion of personal
privacy within the meaning of 5 U.S.C. 552(b)(6).
[74 FR 37897, July 29, 2009]
Sec. Appendix F to Part 512--OMB Clearance
The OMB clearance number for this part 512 is 2127-0025.
[74 FR 37897, July 29, 2009]
PART 520_PROCEDURES FOR CONSIDERING ENVIRONMENTAL IMPACTS--
Table of Contents
Subpart A_General
Sec.
520.1 Purpose and scope.
520.2 Policy.
520.3 Definitions.
520.4 Applicability.
520.5 Guidelines for identifying major actions significantly affecting
the environment.
Subpart B_Procedures
520.21 Preparation of environmental reviews, negative declarations, and
notices of intent.
520.22 Maintenance of a list of actions.
520.23 Preparation of draft environmental impact statements.
520.24 Internal processing of draft environmental impact statements.
520.25 External review of draft environmental impact statements.
520.26 Public hearings.
520.27 Legislative actions.
[[Page 69]]
520.28 Preparation of final environmental impact statements.
520.29 Internal review of final environmental impact statements.
520.30 Availability of final environmental impact statements.
520.31 Amendments or supplements.
520.32 Emergency action procedures.
520.33 Timing of proposed NHTSA actions.
520.34 Comments on environmental statements prepared by other agencies.
Attachment 1 to Part 520--Form and Content of Statement
Attachment 2 to Part 520--Areas of Environmental Impact and Federal
Agencies and Federal-State Agencies With Jurisdiction by Law
or Special Expertise To Comment Thereon [Note]
Attachment 3 to Part 520--Offices Within Federal Agencies and Federal-
State Agencies for Information Regarding the Agencies' Impact
Statements for Which Comments Are Requested [Note]
Attachment 4 to Part 520--State and Local Agency Review of Impact
Statements
Authority: Secs. 102(2)(A), 102(2)(C), Pub. L. 91-190, 83 Stat. 853
(42 U.S.C. 4332); secs. 2(b), 4(f), Pub. L. 89-670, 80 Stat. 931 (49
U.S.C. 1651(b), 1653(f)); E.O. 11514, 35 FR 4247; 40 CFR part 1500; DOT
Order 5610.1B, 39 FR 35234; delegations of authority at 49 CFR 1.45,
1.51.
Source: 40 FR 52396, Nov. 10, 1975, unless otherwise noted.
Subpart A_General
Sec. 520.1 Purpose and scope.
(a) Section 102(2)(C) of the National Environmental Policy Act of
1969 (83 Stat. 853; 42 U.S.C. 4332(2)(C)), as implemented by Executive
Order 11514 (3 CFR, 1966-1970 Comp., p. 902) and the Council on
Environmental Quality's Guidelines of April 23, 1971 (36 FR 7724),
requires that all agencies of the Federal Government prepare detailed
environmental statements on proposals for legislation and other major
Federal actions significantly affecting the quality of the human
environment. The purpose of the Act is to build into the agency
decision-making process careful consideration of all environmental
aspects of proposed actions.
(b) This part specifies National Highway Traffic Safety
Administration (NHTSA) procedures for conducting environmental
assessments and reviews, and for the preparation of environmental impact
statements on proposals for legislation and other major agency actions
significantly affecting the quality of the human environment.
Sec. 520.2 Policy.
The agency will strive to carry out the full intent and purpose of
the National Environmental Policy Act of 1969 and related orders and
statutes, and take positive steps to avoid any action which could
adversely affect the quality of the human environment.
Sec. 520.3 Definitions.
(a) Environmental assessment is a written analysis describing the
environmental impact of a proposed or ongoing agency action, submitted
to the agency either by its grantees or contractors, or by any person
outside the agency as part of any program or project proposal within the
scope of activities listed in Sec. 520.4(b).
(b) Environmental review is a formal evaluation undertaken by the
agency, culminating in a brief document (the environmental review
report), to determine whether a proposed or ongoing NHTSA action may
have a significant impact on the environment. The review document will
be included in the proposed or ongoing agency action, and either support
a negative declaration or recommend the preparation of a draft
environmental impact statement.
(c) Draft environmental impact statement (DEIS) means a preliminary
statement on the environmental impact of a proposed or ongoing NHTSA
action which is circulated for comment and review within and outside
NHTSA.
(d) Final environmental impact statement (FEIS) means a detailed
statement which, pursuant to section 102(2)(C) of the National
Environmental Policy Act, identifies and analyzes the anticipated
environmental impact of a proposed or ongoing NHTSA action.
(e) Negative declaration means a statement prepared subsequent to an
environmental review, which states that a proposed or ongoing NHTSA
action will have no significant environmental impact and therefore does
not require a draft or final environmental impact statement.
[[Page 70]]
Sec. 520.4 Applicability.
(a) Scope. This part applies to all elements of NHTSA, including the
Regional Offices.
(b) Actions covered. Except as provided in paragraph (e) of this
section, this part applies to the following agency actions and such
actions and proposals as may be sponsored jointly with another agency:
(1) New and continuing programs and projects; budget proposals;
legislative proposals by the agency; requests for appropriations;
reports on legislation initiated elsewhere where the agency has primary
responsibility for the subject matter involved; and any renewals or
reapprovals of the foregoing;
(2) Research, development, and demonstration projects; formal
approvals of work plans; and associated contracts;
(3) Rulemaking and regulatory actions, including Notices of Proposed
Rulemaking (NPRM); requests for procurement (RFP); requests for grants
(Annual Work Programs); and contracts;
(4) All grants, loans or other financial assistance for use in State
and Community projects;
(5) Annual State Highway Safety Work Programs;
(6) Construction; leases; purchases; operation of Federal
facilities; and
(7) Any other activity, project, or action likely to have a
significant effect on the environment.
(c) Continuing actions. This part applies to any action enumerated
in paragraph (b) of this section, even though such actions arise from a
project or program initiated prior to enactment of the National
Environmental Policy Act on January 1, 1970.
(d) Environmental assessments. Within the scope of activities listed
in Sec. 520.4(b), any person outside the agency submitting a program or
project proposal may be requested to prepare an environmental assessment
of such proposed action to be included in his submission to the agency.
(e) Exceptions. (1) Assistance in the form of general revenue
sharing funds, distributed under the State and Local Fiscal Assistance
Act of 1972, 31 U.S.C. 1221, with no control by the NHTSA over the
subsequent use of such funds;
(2) Personnel actions;
(3) Administrative procurements (e.g., general supplies) and
contracts for personal services;
(4) Legislative proposals originating in another agency and relating
to matters not within NHTSA's primary areas of responsibility;
(5) Project amendments (e.g., increases in costs) which have no
environmental significance; and
(6) Minor agency actions that are determined by the official
responsible for the actions to be of such limited scope that they
clearly will not have a significant effect on the quality of the human
environment.
(f) Consolidation of statements. Proposed actions (and alternatives
thereto) having substantially similar environmental impacts may be
covered by a single environmental review and environmental impact
statement or negative declaration.
Sec. 520.5 Guidelines for identifying major actions significantly
affecting the environment.
(a) General guidelines. The phrase, ``major Federal actions
significantly affecting the quality of the human environment,'' as used
in this part, shall be construed with a view to the overall, cumulative
impact of the actions, other Federal projects or actions in the area,
and any further contemplated or anticipated actions. Therefore, an
environmental impact statement should be prepared in any of the
following situations:
(1) Proposed actions which are localized in their impact but which
have a potential for significantly affecting the environment;
(2) Any proposed action which is likely to be controversial on
environmental grounds;
(3) Any proposed action which has unclear but potentially
significant environmental consequences.
(b) Specific guidelines. While a precise definition of environmental
significance that is valid in all contexts is not possible, any of the
following actions should ordinarily be considered as significantly
affecting the quality of the human environment:
[[Page 71]]
(1) Any matter falling under section 4(f) of the Department of
Transportation Act (49 U.S.C. 1653(f)) and section 138 of Federal-aid
highway legislation (23 U.S.C. 138), requiring the use of any publicly
owned land from a park, recreation area, or wildlife and waterfowl
refuge of national, State, or local significance as determined by the
Federal, State, or local officials having jurisdiction thereof, or any
land from an historic site of national, State, or local significance;
(2) Any matter falling under section 106 of the National Historic
Preservation Act of 1966 (16 U.S.C. 470(f)), requiring consideration of
the effect of the proposed action on any building included in the
National Register of Historic Preservation and reasonable opportunity
for the Advisory Council on Historic Preservation to comment on such
action;
(3) Any action that is likely to affect the preservation and
enhancement of sites of historical, architectural, or archaeological
significance;
(4) Any action that is likely to be highly controversial regarding
relocation housing;
(5) Any action that (i) divides or disrupts an established
community, disrupts orderly, planned development, or is inconsistent
with plans or goals that have been adopted by the community in which the
project is located; or (ii) causes significantly increased congestion;
(6) Any action that (i) involves inconsistency with any Federal,
State, or local law or administrative determination relating to the
environment; (ii) has a significantly detrimental impact on air or water
quality or on ambient noise levels for adjoining areas; (iii) involves a
possibility of contamination of a public water supply system; or (iv)
affects ground water, flooding, erosion, or sedimentation;
(7) Any action that may directly or indirectly result in a
significant increase in noise levels, either within a motor vehicle's
closed environment or upon nearby areas;
(8) Any action that may directly or indirectly result in a
significant increase in the energy or fuel necessary to operate a motor
vehicle, including but not limited to the following: (i) Actions which
may directly or indirectly result in a significant increase in the
weight of a motor vehicle; and (ii) actions which may directly or
indirectly result in a significant adverse effect upon the aerodynamic
drag of a motor vehicle;
(9) Any action that may directly or indirectly result in a
significant increase in the amount of harmful emissions resulting from
the operation of a motor vehicle;
(10) Any action that may directly or indirectly result in a
significant increase in either the use of or the exposure to toxic or
hazardous materials in the manufacture, operation, or disposal of motor
vehicles or motor vehicle equipment;
(11) Any action that may directly or indirectly result in a
significant increase in the problem of solid waste, as in the disposal
of motor vehicles or motor vehicle equipment;
(12) Any action that may directly or indirectly result in a
significant depletion of scarce natural resources associated with the
manufacture or operation of motor vehicles or motor vehicle equipment;
and
(13) Any other action that causes significant environment impact by
directly or indirectly affecting human beings through adverse impacts on
the environment.
(c) Research activities. (1) In accord-ance with DOT Order 5610.1B,
the Assistant Secretary for Systems Development and Technology (TST)
will prepare, with the concurrence of the NHTSA, proposed procedures for
assessing the environmental consequences of research activities. Until
final procedures are promulgated, the following factors are to be
considered for periodic evaluation to determine when an environmental
statement is required for such programs:
(i) The magnitude of Federal investment in the program;
(ii) The likelihood of widespread application of the technology;
(iii) The degree of environmental impact which would occur if the
technology were widely applied; and
(iv) The extent to which continued investment in the new technology
is likely to restrict future alternatives.
[[Page 72]]
(2) The statement or environmental review culminating in a negative
declaration must be written late enough in the development process to
contain meaningful information, but early enough so that this
information can practically serve as an input in the decision-making
process. Where it is anticipated that an environmental impact statement
may ultimately be required but its preparation is still premature, the
office shall prepare a publicly available record briefly setting forth
the reasons for its determination that a statement is not yet necessary.
This record shall be updated at least quarterly, or as may be necessary
when significant new information becomes available concerning the
potential environmental impact of the program. In any case, a statement
or environmental review culminating in a negative declaration must be
prepared before research activities have reached a state of investment
or commitment to implementation likely to determine subsequent
development or restrict later alternatives. Statements on technology
research and development programs shall include an analysis not only of
alternative forms of the same technology that might reduce any adverse
environmental impacts but also of alternative technologies that would
serve the same function as the technology under consideration. Efforts
shall be made to involve other Federal agencies and interested groups
with relevant expertise in the preparation of such statements because
the impacts and alternatives to be considered are likely to be less well
defined than in other types of statements.
Subpart B_Procedures
Sec. 520.21 Preparation of environmental reviews, negative
declarations, and notices of intent.
(a) General responsibilities--(1) Associate Administrators and Chief
Counsel. Each Associate Administrator and the Chief Counsel is
responsible for determining, in accordance with Subpart A, whether the
projects and activities under his jurisdiction require an environmental
review, and for preparing all such reviews, negative declarations, and
notices of intent.
(2) Regional Administrators. Each Regional Administrator, in
consultation with the Governor's Representative, is responsible for
determining, in accordance with Subpart A, whether proposed State
activities in his Region, as stated in Annual Work Programs, require an
environmental review, and for the preparing all such reviews, negative
declarations, and notices of intent.
(3) Associate Administrator for Planning and Evaluation. The
Associate Administrator for Planning and Evaluation may request in
accordance with the requirements of this order, that the appropriate
Associate Administrator or Regional Administrator prepare an
Environmental review or Environmental Impact Statement for any proposed
or continuing NHTSA action, or comment on any environmental statement
prepared by other agencies.
(b) Coordination. Coordination with appropriate local, State and
Federal agencies should be accomplished during the early stages by the
responsible official to assist in identifying areas of significance and
concern. Existing procedures, including those established under the
Office of Management and Budget (OMB) Revised Circular A-95, should be
used to the greatest extent practicable to accomplish this early
coordination.
(c) Applicants. (1) Each applicant for a grant, loan, or other
financial assistance for use in State and community projects may be
requested to submit, with the original application, an environmental
assessment of the proposed project.
(2) Under OMB Revised Circular A-95, ``Evaluation, Review, and
Coordination of Federal Assistance Programs and Projects,'' and DOT
4600.4B, ``Evaluation, Review and Coordination of DOT Assistance
Programs and Projects,'' dated February 27, 1974, a grant applicant must
notify the clearinghouse of its intention to apply for Federal program
assistance. The notification must solicit comments on the project and
its impacts from appropriate State and local agencies. Since it is the
NHTSA's policy to assure that (i) interested parties and Federal, State,
and local agencies receive early notification of the decision to prepare
an environmental
[[Page 73]]
impact statement, and (ii) their comments on the environmental effects
of the proposed Federal action are solicited at an early stage in the
preparation of the draft impact statement, this early notification
requirement may be met by a grant applicant by sending the notification
to interested parties and agencies at the same time it is sent to the
clearinghouse.
(d) Consultants. Consultants may prepare background or preliminary
material and assist in preparing a draft or final environmental
statement for which the NHTSA takes responsibility. Care should be
exercised in selecting consultants, and in reviewing their work, to
insure complete and objective consideration of all relevant project
impacts and alternatives, particularly if the consultant may expect
further contracts based on the outcome of the environmental decision.
(e) Environmental review report. The environmental review shall
culminate in a brief written report of the same title, which shall be
included in the proposed or ongoing agency action, and which:
(1) Describes the proposed or ongoing NHTSA action, the environment
affected, and the anticipated benefits;
(2) Evaluates the potential environmental impact, including those
adverse impacts which cannot be avoided, should the proposal be
implemented or the action continued;
(3) Assesses the alternatives to the proposed or ongoing action and
their potential environmental impact;
(4) Evaluates the cumulative and long-term environmental effects of
the proposed or ongoing action;
(5) Describes the irreversible and irretrievable commitments of
resources involved in the proposal's implementation or the action's
continuance;
(6) Identifies any known or potential conflicts with State,
regional, or local plans and programs;
(7) Weighs and analyzes the anticipated benefits against the
environmental and other costs of the proposed or ongoing action in a
manner which reflects similar comparisons of reasonably available
alternatives; and
(8) Concludes with a negative declaration or recommends the
preparation of a DEIS.
(f) Negative declarations. (1) If the responsible official judges
that the environmental impact of a proposed or ongoing action under his
jurisdiction will not significantly affect the quality of the human
environment, the following declaration will be included in the
environmental review report:
It is the judgment of this agency, based on available information, that
no significant environmental impact will result from execution of this
action.
(2) A DEIS may be changed to a negative declaration if the public
review process indicates that the proposal or ongoing action will not
have a significant effect upon the environment.
(3) An index of all negative declarations and a copy of each
environmental review report shall be retained by the responsible
official under whose jurisdiction it was prepared and shall be made
available for public inspection upon request.
(g) Notice of intent to prepare a draft environmental impact
statement. If the responsible official under whose jurisdiction an
environmental review is prepared determines that the proposed or ongoing
action could have a potentially significant effect on the quality of the
environment, he shall: coordinate with the Associate Administrator for
Planning and Evaluation and the Chief Counsel, transmit to appropriate
Federal, State and local agencies and have published in the Federal
Register a notice of intent to prepare an environmental statement as
soon as is practicable after the determination to prepare such a
statement.
Sec. 520.22 Maintenance of a list of actions.
(a) The Associate Administrator for Planning and Evaluation shall be
responsible for the preparation and maintenance of a list of actions for
which draft or final environmental impact statements have been or are to
be prepared. This list shall be on file with the Associate Administrator
for Planning and Evaluation and shall be available for public inspection
in the Docket Section upon request. A copy of the initial list and its
updatings at the end of each calendar quarter shall be transmitted by
the Associate Administrator
[[Page 74]]
for Planning and Evaluation to TES and CEQ.
(b) If a determination is made that an environmental statement is
not necessary for a proposed action (1) which has been identified as
normally requiring preparation of a statement, (2) which is similar to
actions for which a significant number of statements have been prepared,
(3) which the agency has previously announced would be the subject of a
statement, or (4) for which the official responsible for such proposal
has made a negative determination in response to a request from the CEQ,
a record briefly setting forth the decision and the reasons for that
determination shall be prepared by the responsible official. Such a
record of negative determinations and any evaluations made pursuant to
Sec. 520.21 which conclude that preparation of a statement is not yet
timely shall be prepared by the responsible official, submitted to the
Associate Administrator for Planning and Evaluation, and made available
by the Associate Administrator for Planning and Evaluation in the same
manner as provided in paragraph (a) of this section for lists of
statements under preparation.
Sec. 520.23 Preparation of draft environmental impact statements.
(a) Planning stage. (1) When a DEIS is to be prepared, the
responsible official shall promptly initiate its preparation and develop
a schedule in consultation with the Associate Administrator for Planning
and Evaluation, to assure completion prior to the first significant
point of decision in the program or project development process.
(2) The environmental impacts of proposed activities should be
initially assessed concurrently with the initial technical and economic
studies.
(3) Section 102(2)(A) of NEPA requires each Federal agency to
utilize a ``systematic, interdisciplinary approach'' to plans and
programs affecting the environment. To assure that all environmental
impacts are identified and assessed, all relevant disciplines should be
represented. If the necessary disciplines are not represented on the
staff of the applicant or NHTSA, it is appropriate to use professional
services available in other Federal, State or local agencies,
universities, or consulting firms. The use of the interdisciplinary
approach should not be limited to the environmental statement. This
approach should also be used in the early planning stages to help assure
a systematic evaluation of reasonable alternative courses of action and
their potential social, economic, and environmental consequences.
(b) Form and content requirements. Attachment 1 of this order
prescribes the form and content requirements to be followed for each
draft and final environmental impact statement. The DEIS must fulfill
and satisfy, to the fullest extent possible at the time it is prepared,
the requirements established for final statements.
(c) Lead agency. CEQ guidelines provide that when more than one
Federal agency (1) directly sponsors an action, or is directly involved
in an action through funding, licenses, or permits, or (2) is involved
in a group of actions directly related to each other because of their
functional interdependence and geographical proximity, consideration
should be given to preparing one statement for all the Federal actions
involved. Agencies in such cases should consider the designation of a
single ``lead agency'' to assume supervisory responsibility for
preparation of a joint statement. Where a lead agency prepares the
statement, the other agencies involved should provide assistance with
respect to their areas of jurisdiction and expertise. The statement
should contain an evaluation of the full range of Federal actions
involved, should reflect the views of all participating agencies, and
should be prepared before major or irreversible actions have been taken
by any of the participating agencies. Some relevant factors in
determining an appropriate lead agency are: The time sequence in which
the agencies become involved, the magnitude of their respective
involvement, and their relative expertise with respect to the project's
environmental effects. Questions concerning ``lead agency'' decisions
should be raised with CEQ through TES. For projects serving and
primarily involving land owned by or
[[Page 75]]
under the jurisdiction of another Federal agency, that agency may be the
appropriate lead agency.
(d) Applicants. Where the agency requests an applicant for financial
assistance or other agency approval to submit an environmental
assessment, the responsible official will (1) assist the applicant by
outlining the information required, and (2) in all cases make his own
evaluation of the environmental issues involved and take responsibility
for the scope and content of draft and final environmental statements.
Sec. 520.24 Internal processing of draft environmental impact
statements.
Before circulating a DEIS for external review, the official
responsible for the DEIS shall receive the concurrence of the Associate
Administrator for Planning and Evaluation and the Chief Counsel; and
prepare a memorandum for approval by the Administrator which shall:
(a) Set forth the basis on which it was determined that a
potentially significant environmental effect exists;
(b) Attach the DEIS;
(c) Identify the Federal, State, and local agencies and private
sources from which comments on the DEIS are proposed to be solicited
(see Attachment 2); \1\ and
---------------------------------------------------------------------------
\1\ Filed as part of the original document.
---------------------------------------------------------------------------
(d) Include a recommendation on whether a public hearing on the
proposed action should be held.
Sec. 520.25 External review of draft environmental impact statements.
(a) Requirements. The official responsible for the DEIS shall:
(1) Transmit 5 copies of the DEIS to the CEQ and 2 copies to TES;
(2) Solicit comments from all Federal, State, and local agencies
which have jurisdiction by law or special expertise with respect to the
possible environmental impact involved, and from the public (see
Attachment 2); and
(3) Inform the public and interested parties of the availability of
the DEIS and provide copies as appropriate; and
(4) Allow a comment period of not less than 45 days from the Friday
of the week following receipt of the draft impact statement by CEQ.
Requests for extensions shall be granted whenever possible, and
particularly when warranted by the magnitude and complexity of the
statement or the extent of citizen interest.
(b) Procedures--(1) Federal and Federal-State agency review. (i) The
DEIS shall be circulated for review to the Federal and Federal-State
agencies with special expertise or jurisdiction by law with regard to
the potential environmental impact involved. These agencies and their
relevant areas of expertise are identified in Attachment 2.
(ii) For actions within the jurisdiction of the Environmental
Protection Agency (air or water quality, solid wastes, pesticides,
radiation standards, noise), the DEIS shall be sent to EPA.
(iii) For actions which would affect any property that is included
in the National Register of Historic Preservation, the DEIS should be
sent to the Advisory Council on Historic Preservation and the State
Liaison Office for Historic Preservation.
(2) State and local review. Where a review of the proposed action by
State and local agencies authorized to develop and enforce environmental
stand-ards is relevant, comments are to be solicited directly from such
agencies with known responsibilities in environmental matters, and shall
be obtained as follows:
(i) Where review of direct Federal development projects, and of
projects assisted under programs listed in Attachment D to revised OMB
Circular A-95 (as implemented by DOT 4600.4B ``Evaluation, Review and
Coordination of DOT Assistance Programs and Projects'', dated February
27, 1974), takes place prior to preparation of an environmental
statement, comments of the reviewing agencies on the environmental
effects of the proposed project are inputs to the environmental
statement. These comments shall be attached to the draft statement when
it is circulated for review and copies of the draft shall be sent to
those who commented. A-05 clearinghouses or other agencies designated by
the Governor may also secure comments on environmental statements. In
all cases, copies of the draft environmental
[[Page 76]]
statements shall be sent to clearinghouses and to the applicant whose
project is the subject of the statement.
(ii) Comments shall be directly obtained from appropriate State and
local agencies, except where review is secured by agreement through A-95
clearinghouses, unless the Governor of the appropriate State has
designated some other point for obtaining his review. Instructions for
obtaining the views of such agencies are contained in the joint OMB-CEQ
memorandum (see Attachment 4). Comments shall be solicited from
municipalities and counties on all projects located therein.
(iii) State and local review of NHTSA procedures, regulations, and
policies for administering Federal programs of assistance to State and
local governments shall be obtained pursuant to procedures established
by OMB Circular No. A-85.
(iv) Generally, environmental statements on legislative and budget
proposals may be excluded from State and local review.
(3) General public review. (i) At the time the DEIS is circulated to
Federal, State, and local agencies, public availability of the DEIS for
comment and review will be announced by the CEQ in the Federal Register.
Copies of the DEIS should be sent to known interested parties, and press
releases should be sent to local news media advising where the DEIS is
available and how copies may be obtained. The Office of Public Affairs
and Consumer Services shall maintain a list of groups, including
conservation organizations and motor vehicle manufacturers, known to be
interested in the agency's activities, and directly notify such groups
of the availability of the DEIS or send them a copy as soon as it has
been prepared.
(ii) A DEIS should be available to the public at least 30 days prior
to the time of a public hearing on the DEIS.
(iii) Copies of the DEIS will be made available at the NHTSA Docket
Section, Room 5109, 400 Seventh Street, SW., Washington, DC 20590, and,
where appropriate, NHTSA Regional Offices, at the offices of any
applicants or grantees, at appropriate State, regional, and metropolitan
clearing houses, and local public libraries, and furnished to public and
private organizations and individuals with special expertise with
respect to the potential environmental impact involved, and to those
with an interest in the action who request an opportunity to comment.
Copies to be made available to the public shall be provided without
charge to the extent practicable, or at a fee which is not more than the
actual cost of reproducing copies required to be sent to other Federal
agencies, including the CEQ.
(iv) A copy of the DEIS should in all cases be sent to any applicant
whose project is the subject of the statement.
(v) If a DEIS is changed to a negative declaration as a result of
the public review process, all agencies and individuals that received
copies and/or commented on the DEIS must be informed that a negative
declaration was substituted for the DEIS and given a brief explanation
of the reason for such substitution.
(c) Utilization of comments. Comments received on the draft
statement, and inputs (in summary form, if appropriate) from the
processes for citizen participation, shall accompany the environmental
statement through the normal internal project or program review process.
Sec. 520.26 Public hearings.
(a) A public hearing on a proposed or ongoing action covered by a
DEIS shall be held upon the determination by the official responsible
for such action, in consultation with the Associate Administrator for
Planning and Evaluation, that a public hearing would be appropriate and
in the public interest. In deciding whether a public hearing is
appropriate, the responsible official should consider:
(1) The magnitude of the proposal in terms of economic costs, the
geographic area involved, and the uniqueness or size of the commitment
of the resources involved;
(2) The degree of interest in the proposal, as evidenced by requests
from the public and from Federal, State, and local authorities that a
hearing be held;
(3) The likelihood that information will be presented at the hearing
which will be of assistance to the agency in
[[Page 77]]
fulfilling its responsibilities under the NEPA;
(4) The extent to which public involvement already has been achieved
through other means, such as earlier public hearings, meetings with
citizen representatives, and/or written comments on the proposed action;
and
(5) The extent of potential environmental impact.
(b) If it is determined that a public hearing is to be held in
accordance with paragraph (a) of this section, the official responsible
for the action shall both announce the hearing through newspaper
articles, direct notification to interested parties, and clearinghouses,
and cause a notice to be issued in the Federal Register at least 30 days
prior to the time of such hearing:
(1) Identifying the subject matter of the hearing;
(2) Announcing the date, time, and place of the hearing and the
procedures to be followed; and
(3) Announcing the availability of the DEIS and any other
information, as appropriate, for public inspection at one or more
locations in the area affected by the action.
Sec. 520.27 Legislative actions.
(a) A DEIS on both legislative proposals and reports for which NHTSA
either develops the Departmental position or originates the legislation
will be cleared with TES, filed with CEQ, and submitted to the Office of
Management and Budget through the normal DOT and NHTSA legislative
process.
(b) The preparation, circulation, and filing of the environmental
statement shall be in accordance with OMB Bulletin 72-6, ``Proposed
Federal Actions Affecting the Environment.''
(c) A DEIS and any comments that have been received should be
available to the Congress and to the public for consideration in
connection with the proposed legislation or report on proposed
legislation. In cases where the scheduling of Congressional hearings on
recommendations or reports on proposals for legislation which the
Department has forwarded to the Congress does not allow adequate time
for the completion of a FEIS, a DEIS may be furnished to the Congress
and made available to the public pending transmittal of the comments as
received and the final text.
Sec. 520.28 Preparation of final environmental impact statements.
(a) If the action is to go forward and the DEIS has not been changed
to a negative declaration, as soon as practicable after the expiration
of the comment period and hearing process, if any, the official
responsible for the action shall prepare a final environmental impact
statement (FEIS), taking into account all comments received and issues
raised during such period and process.
(b) The FEIS shall conform to the guidelines for form and content in
Attachment 1.
(c) The FEIS shall then be submitted to the Chief Counsel by the
official responsible for the action, for determination of legal
sufficiency.
Sec. 520.29 Internal review of final environmental impact statements.
(a) Upon completion of the review for legal sufficiency of the FEIS,
the Chief Counsel shall transmit 2 copies of the FEIS to TES for
concurrence. Unless other notification is provided within 2 weeks after
receipt in TES, the statement will be considered concurred in by TES.
(b) After concurrence by TES, the FEIS will be transmitted by the
Chief Counsel to the Administrator for approval.
(c) If an action requires the personal approval of the Secretary or
Deputy Secretary pursuant to a request by them or by TES, TGC, or the
NHTSA office originating the action, the final environmental statement
shall be accompanied by a brief cover memorandum requesting the
Secretary's or Deputy Secretary's approval of the action.
(1) The memorandum shall have signature lines for the concurrence of
the Assistant Secretary for Environment, Safety, and Consumer Affairs,
the General Counsel, and the Deputy Secretary, and for the approval of
the Secretary or Deputy Secretary.
(2) TES, in conjunction with the Executive Secretary, is responsible
for informing the Assistant Secretary for Congressional and
Intergovernmental
[[Page 78]]
Affairs and the Office of Public Affairs of the Secretary's decisions so
that they, in coordination with the operating administrations or other
Secretarial Offices involved, may take the appropriate actions.
Sec. 520.30 Availability of final environmental impact statements.
(a) Pending final approval and filing with CEQ, a proposed FEIS may
be made available to the public and Federal, State, or local agencies if
it carries a notation that it is not approved and filed.
(b) After approval by the Administrator, the Associate Administrator
for Planning and Evaluation will send 5 copies of the FEIS (together
with comments) to the CEQ; individual copies with comments attached to
the EPA and all Federal, State, and local agencies and members of the
public who submitted comments on the DEIS or requested copies of the
FEIS. If the length of the statement or the number of comments make this
distribution requirement highly impractical, TES should be consulted to
consider an alternative arrangement.
(c) Copies of the FEIS will be made available in the NHTSA Docket
Section, Room 5109, 400 Seventh Street SW., Washington, DC 20590, and,
where appropriate, NHTSA Regional Offices, at the offices of any
applicants or grantees, and at appropriate State, regional, and
metropolitan clearinghouses and, where the impact is localized, public
libraries.
(d) The official responsible for the action shall, upon request,
make available copies of the FEIS and substantive comments received on
the DEIS without charge to the extent practicable, or at a fee which is
not more than the actual cost of reproducing copies.
(Authority: Secs. 102(a)(A), 102(2)(C), Pub. L. 91-190, 83 Stat. 853 (42
U.S.C. 4332); secs. 2(b), 4(f), Pub. L. 89-670, 80 Stat. 931 (49 U.S.C.
1651(b), 1653(f); E. O. 11514, 35 FR 4247; 40 CFR Part 1500; DOT Order
5610.1B, 39 FR 35234; delegations of authority at 49 CFR 1.45, 1.50 and
501.7)
[40 FR 52396, Nov. 10, 1975, as amended at 48 FR 44081, Sept. 27, 1983]
Sec. 520.31 Amendments or supplements.
A draft or final environmental impact statement may be amended or
supplemented. Supplements or amendments should be considered when
substantial changes are made in the proposed or ongoing action that will
introduce a new or changed environmental effect of significance to the
quality of the environment, or significant new information becomes
available concerning its environmental aspects. In such cases, the
supplement or amendment shall be processed in consultation with TES with
respect to the need for, or desirability of, recirculating the statement
for the appropriate period. TES concurrence must be secured before
issuance.
Sec. 520.32 Emergency action procedures.
The CEQ Guidelines allow modification of requirements in case of a
national emergency, a disaster or similar great urgency. The processing
times may be reduced, or if the emergency situation warrants,
preparation and processing of a DEIS, FEIS, or negative declaration may
be abbreviated. Such procedural changes, however, should be requested
only for those projects where the need for immediate action requires
processing in other than the normal manner.
Sec. 520.33 Timing of proposed NHTSA actions.
To the maximum extent practicable, no administrative action (i.e.,
any proposed action to be taken by the agency other than agency
proposals for legislation to Congress, budget proposals, or agency
reports on legislation) subject to this part and covered by an
environmental impact statement shall be taken sooner than 90 days after
a DEIS has been circulated for comment, furnished to the CEQ, and made
public. Neither shall such administrative action be taken sooner than 30
days after the FEIS (together with comments) has been filed with CEQ,
and made available to commenting agencies and the public. If the FEIS is
filed within 90 days after a DEIS has been circulated for comment,
furnished to the CEQ and made public, the 30-day period and 90-day
period may run concurrently to the extent that they overlap. The 90-
[[Page 79]]
day time period is measured from the date of publication in the Federal
Register of the list of weekly filings of environmental impact
statements with the CEQ, but the 30-day period is computed from the date
of receipt by the CEQ.
Sec. 520.34 Comments on environmental statements prepared by other
agencies.
(a) All requests for NHTSA's views on a DEIS or a proposed action
undergoing environmental review by another agency will be transmitted to
the Associate Administrator for Planning and Evaluation for action or
referral to TES where appropriate. Offices within NHTSA may be requested
by the Associate Administrator for Planning and Evaluation to supply any
pertinent information and comments for a coordinated agency response.
(b) NHTSA's comments and the comments of any offices responding to a
request by the Associate Administrator for Planning and Evaluation
should be organized in a manner consistent with the structure of an
environmental review set out in Sec. 520.21(e). NHTSA programs that are
environmentally related to the proposed action under review should be
identified so interrelationships may receive due consideration.
(c) Copies of NHTSA's comments on environmental statements prepared
by other agencies shall be distributed as follows:
(1) The original and 1 copy to the requesting agency;
(2) 1 copy to TES-70; and
(3) 5 copies to CEQ.
(d) Requests by the public for copies should be referred to the
agency originating the statement.
Sec. Attachment 1 to Part 520--Form and Content of Statement
1. Form. a. Each statement will be headed as follows:
department of transportation national highway traffic safety
administration
(Draft) Environmental Impact Statement Pursuant to section
102(2)(C), Pub. L. 91-190; 83 Stat. 853; 42 U.S.C. 4332(2)(C).
b. The heading specified above shall be modified to indicate that
the statement also covers sections 4(f) of the DOT Act or 106 of the
National Historic Preservation Act, when appropriate.
c. Each statement will, as a minimum, contain sections corresponding
to paragraph 3 herein, supplemented as necessary to cover other matters
provided in this Attachment.
d. The format for the summary to accompany draft and final
environmental statements is as follows:
summary
(Check one) ( ) Draft ( ) Final; Department of Transportation,
National Highway Traffic Safety Administration. Name, address, and
telephone number of individual who can be contacted for additional
information about the proposed action or the statement. (Note: DOT Order
2100.2 prescribes procedures for reporting public contacts in
rulemaking.)
(1) Name of Action. (Check one) ( ) Administrative Action. ( )
Legislative Action.
(2) Brief description of action indicating what States (and
counties) are particularly affected.
(3) Summary of environmental impact and adverse environmental
effects.
(4) List alternatives considered.
(5)(a) (For draft statements) List all Federal, State, and local
agencies from which comments have been requested.
(b) (For final statements) List all Federal, State, and local
agencies and other sources from which written comments have been
received.
(6) Dates the draft statement and the final statement if issued were
made available to the Council on Environmental Quality and the public.
2. Guidance as to content of statement. The following paragraphs of
this Attachment are intended to be considered, where relevant, as
guidance regarding the content of environmental statements. This
guidance is expected to be supplemented by research reports, guidance on
methodology, and other material from the literature as may be pertinent
to evaluation of relevant environmental factors.
3. General content. The following points are to be covered:
a. A description of the proposed Federal action (e.g., ``The
proposed Federal action is approval of a grant application to construct
* * *''), a statement of its purpose, and a description of the
environment affected, including information, summary technical data, and
maps and diagrams where relevant, adequate to permit an assessment of
potential environmental impact by commenting offices and the public.
(1) Highly technical and specialized analyses and data should
generally be avoided in the body of the draft impact statement. Such
materials should be appropriately summarized in the body of the
environmental statement and attached as appendices or
[[Page 80]]
footnoted with adequate bibliographic references.
(2) The statement should succinctly describe the environment of the
area affected as it exists prior to a proposed action, including other
related Federal activities in the area, their interrelationships, and
cumulative environmental impact. The amount of detail provided in such
descriptions should be commensurate with the extent and expected impact
of the action, and with the amount of information required at the
particular level of decision making (planning, feasibility, design,
etc.). In order to insure accurate descriptions and environmental
considerations, site visits should be made where appropriate.
(3) The statement should identify, as appropriate, population and
growth characteristics of the affected area and any population and
growth assumptions used to justify the project or program or to
determine secondary population and growth impacts resulting from the
proposed action and its alternatives (see paragraph 3c(2)). In
discussing these population aspects, the statement should give
consideration to using the rates of growth in the region of the project
contained in the projection compiled for the Water Resources Council by
the Bureau of Economic Analysis of the Department of Commerce and the
Economic Research Service of the Department of Agriculture (the OBERS
projection).
(4) The sources of data used to identify, quantify, or evaluate any
or all environmental consequences must be expressly noted.
b. The relationship of the proposed action and how it may conform to
or conflict with adopted or proposed land use plans, policies, controls,
and goals and objectives as have been promulgated by affected
communities. Where a conflict or inconsistency exists, the statement
should describe the extent of reconciliation and the reasons for
proceeding notwithstanding the absence of full reconciliation.
c. The probable impact of the proposed action on the environment.
(1) This requires assessment of the positive and negative effects of the
proposed action is it affects both national and international human
environment. The attention given to different environmental factors will
vary according to the nature, scale, and location of proposed actions.
Among factors to be considered should be the potential effect of the
action on such aspects of the environment as those listed in Attachment
2, and in section 520.5(b), supra. Primary attention should be given in
the statement to discussing those factors most evidently impacted by the
proposed action.
(2) Secondary and other foreseeable effects, as well as primary
consequences for the environment, should be included in the analyses.
Secondary effects, such as the impact on fuel consumption, emissions, or
noise levels of automobiles or in the use of toxic or scarce materials,
may be more substantial than the primary effects of the original action.
d. Alternatives to the proposed action, including, where relevant,
those not within the existing authority of the responsible preparing
office. Section 102(2)(D) of NEPA requires the responsible agency to
``study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources.'' A rigorous
exploration and an objective evaluation of the environmental impacts of
all reasonable alternative actions, particularly those that might
enhance environmental quality or avoid some or all of the adverse
environmental effects, are essential. Sufficient analysis of such
alternatives and their environmental benefits, costs, and risks should
accompany the proposed action through the review process in order not to
foreclose prematurely options which might enhance environmental quality
or have less detrimental effects. Examples of such alternatives include:
The alternatives of not taking any action or of postponing action
pending further study; alternatives requiring actions of a significantly
different nature which would provide similar benefits with different
environmental impacts, e.g., low capital intensive improvements, mass
transit alternatives to highway construction; alternatives related to
different locations or designs or details of the proposed action which
would present different environmental impacts. In each case, the
analysis should be sufficiently detailed to reveal comparative
evaluation of the environmental benefits, costs, and risks of the
proposed action and each reasonable alternative. Where an existing
impact statement already contains such an analysis its treatment of
alternatives may be incorporated, provided such treatment is current and
relevant to the precise purpose of the proposed action.
e. Any probable adverse environmental effacts which cannot be
avoided (such as water or air pollution, noise, undesirable land use
patterns, or impacts on public parks and recreation areas, wildlife and
waterfowl refuges, or on historic sites, damage to life systems, traffic
congestion, threats to health, or other consequences adverse to the
environmental goals set out in section 101(b) of NEPA). This should be a
brief section summarizing in one place those effects discussed in
paragraph 3c that are adverse and unavoidable under the proposed action.
Included for purposes of contrast should be a clear statement of how all
adverse effects will be mitigated. Where mitigating steps are included
in the statement, the responsible official shall see that they are
carried out.
[[Page 81]]
f. The relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity. This section should contain a brief discussion of the
extent to which the proposed action involves tradeoffs between short-
term environmental gains at the expense of long-term losses, or vice
versa, and a discussion of the extent to which the proposed action
forecloses future options.
g. Any irreversible and irretrievable commitments of resources that
would be involved in the proposed action should it be implemented. This
requires identification of unavoidable impacts and the extent to which
the action irreversibly curtails the range of potential uses of the
environment. ``Resources'' means not only the labor and materials
devoted to an action but also the natural and cultural resources lost or
destroyed.
h. An indication of what other interests and considerations of
Federal policy are thought to offset the adverse environmental effects
of the proposed action identified pursuant to subparagraphs (c) and (e)
of this paragraph. The statement should also indicate the extent to
which these stated countervailing benefits could be realized by
following reasonable alternatives to the proposed action (as identified
in subparagraph (d) of this paragraph) that would avoid some or all of
the adverse environmental effects. In this connection if a cost-benefit
analysis of the proposed action has been prepared, it, or a summary,
should be attached to the environmental impact statement, and should
clearly indicate the extent to which environmental costs have not been
reflected in such analysis.
i. A discussion of problems and objections raised by other Federal
agencies, State and local entities, and citizens in the review process,
and the disposition of the issues involved and the reasons therefor.
(This section shall be added to the final environmental statement at the
end of the review process.)
(1) The draft and final statements should document issues raised
through consultations with Federal, State, and local agencies with
jurisdiction or special expertise and with citizens, of actions taken in
response to comments, public hearings, and other citizens involvement
proceedings.
(2) Any unresolved environmental issues and efforts to resolve them,
through further consultations or otherwise, should be identified in the
final statement. For instance, where an agency comments that the
statement has inadequate analysis or that the agency has reservations
concerning the impacts, or believes that the impacts are too adverse for
approval, either the issue should be resolved or the final statement
should reflect efforts to resolve the issue and set forth any action
that will result.
(3) The statement should reflect that every effort was made to
discover and discuss all major points of view on the environmental
effects of the proposed action and alternatives in the draft statement.
However, where opposing professional views and responsible opinion have
been overlooked in the draft statement and are raised through the
commenting process, the environmental effects of the action should be
reviewed in light of those views. A meaningful reference should be made
in the final statement to the existence of any responsible opposing view
not adequately discussed in the draft statement indicating responses to
the issues raised.
(4) All substantive comments received on the draft (or summaries of
responses from the public which have been exceptionally voluminous)
should be attached to the final statement, whether or not each such
comment is thought to merit individual discussion in the text of the
statement.
j. Draft statement should indicate at appropriate points in the text
any underlying studies, reports, and other information obtained and
considered in preparing the statement, including any cost-benefit
analyses prepared. In the case of documents not likely to be easily
accessible (such as internal studies or reports), the statement should
indicate how such information may be obtained. If such information is
attached to the statement, care should be taken to insure that the
statement remains an essentially self-contained instrument, capable of
being understood by the reader without the need for undue cross
reference.
4. Publicly owned parklands, recreational areas, wildlife and
waterfowl refuges and historic sites. The following points are to be
covered:
a. Description of ``any publicly owned land from a public park,
recreational area or wildlife and waterfowl refuge'' or ``any land from
an historic site'' affected or taken by the project. This includes its
size, available activities, use, patronage, unique or irreplaceable
qualities, relationship to other similarly used lands in the vicinity of
the project, maps, plans, slides, photographs, and drawings showing a
sufficient scale and detail the project. This also includes its impact
on park, recreation, wildlife, or historic areas, and changes in
vehicular or pedestrian access.
b. Statement of the ``national, State or local significance'' of the
entire park, recreational area, refuge, or historic site ``as determined
by the Federal, State or local officials having jurisdiction thereof.''
(1) In the absence of such a statement lands will be presumed to be
significant. Any statement of ``insignificance'' by the official having
jurisdiction is subject to review by the Department as to whether such
statement is capricious.
[[Page 82]]
(2) Where Federal lands are administered for multiple uses, the
Federal official having jurisdiction over the lands shall determine
whether the subject lands are in fact being used for park, recreation,
wildlife, waterfowl, or historic purposes.
c. Similar data, as appropriate, for alternative designs and
locations, including detailed cost estimates (with figures showing
percentage differences in total project costs) and technical
feasibility, and appropriate analysis of the alternatives, including any
unique problems present and evidence that the cost or community
disruptions resulting from alternative routes reach extraordinary
magnitudes. This portion of the statement should demonstrate compliance
with the Supreme Court's statement in the Overton Park case, as follows:
[The] very existence of the statute indicates that protection of
parkland was to be given paramount importance. The few green havens that
are public parks were not to be lost unless there were truly unusual
factors present in a particular case or the cost or community disruption
resulting from alternative routes reached extraordinary magnitudes. If
the statutes are to have any meaning, the Secretary cannot approve the
destruction of parkland unless he finds that alternative routes present
unique problems. 401 U.S. 402, 412 (1971).
d. If there is no feasible and prudent alternative, description of
all planning undertaken to minimize harm to the protected area and
statement of actions taken or to be taken to implement this planning,
including measures to maintain or enhance the natural beauty of the
lands traversed.
(1) Measures to minimize harm may include replacement of land and
facilities, providing land or facilities, provision for functional
replacement of the facility (see 49 CFR 25.267).
(2) Design measures to minimize harm; e.g., tunneling, cut and
cover, cut and fill, treatment of embankments, planting, screening,
maintenance of pedestrian or bicycle paths and noise mitigation measures
all reflecting utilization of appropriate interdisciplinary design
personnel.
e. Evidence of concurrence or description of efforts to obtain
concurrence of Federal, State or local officials having jurisdiction
over the section 4(f) property regarding the action proposed and the
measures planned to minimize harm.
f. If Federally-owned properties are involved in highway projects,
the final statement shall include the action taken or an indication of
the expected action after filing a map of the proposed use of the land
or other appropriate documentation with the Secretary of the Department
supervising the land (23 U.S.C. 317).
g. If land acquired with Federal grant money (Department of Housing
and Urban Development open space or Bureau of Outdoor Recreation land
and water conservation funds) is involved, the final statement shall
include appropriate communications with the grantor agency.
h. TGC will determine application of section 4(f) to public
interests in lands, such as easements, reversions, etc.
i. A specific finding by the Administrator that there is no feasible
and prudent alternative and that the proposal includes all possible
planning to minimize harm to the ``4(f) area'' involved.
5. Properties and sites of historic and cultural significance. The
statement should document actions taken to preserve and enhance
districts, sites, buildings, structures, and objects of historical,
architectural, archeological, or cultural significance affected by the
action.
a. Draft environmental statements should include identification,
through consulting the National Register and applying the National
Register Criteria (36 CFR part 800), of properties that are included in
or eligible for inclusion in the National Register of Historic Places
that may be affected by the project. The National Register is published
in its entirety each February in the Federal Register. Monthly additions
and listings of eligible properties are published in the Federal
Register the first Tuesday of each month. The Secretary of the Interior
will advise, upon request, whether properties are eligible for the
National Register.
b. If application of the Advisory Council on Historic Preservation's
(ACHP) Criteria of Effect (36 CFR part 800) indicates that the project
will have an effect upon a property included in or eligible for
inclusion in the National Register of Historic Places, the draft
environmental statement should document the effect. Evaluation of the
effect should be made in consultation with the State Historic
Preservation Officer (SHPO) and in accordance with the ACHP's criteria
of Adverse Effect (36 CFR part 800).
c. Determinations of no adverse effect should be documented in the
draft statement with evidence of the application of the ACHP's Criteria
of Adverse Effect, the views of the appropriate State Historic
Preservation Officer, and submission of the determination to the ACHP
for review.
d. If the project will have an adverse effect upon a property
included in or eligible for inclusion in the National Register of
Historic Places, the final environmental statement should include either
an executed Memorandum of Agreement or comments from the Council after
consideration of the project at a meeting of the ACHP and an account of
actions to be taken in response to the comments of the ACHP. Procedures
for obtaining a Memorandum of Agreement and the comments of the Council
are found in 36 CFR part 800.
[[Page 83]]
e. To determine whether the project will have an effect on
properties of State or local historical, architectural, archaeological,
or cultural significance not included in or eligible for inclusion in
the National Register, the responsible official should consult with the
State Historic Preservation Officer, with the local official having
jurisdiction of the property, and where appropriate, with historical
societies, museums, or academic institutions having expertise with
regard to the property. Use of land from historic properties of Federal,
State and local significance as determined by the official having
jurisdiction thereof involves section 4(f) of the DOT Act and
documentation should include information necessary to consider a 4(f)
determination (see paragraph 4).
6. Impacts of the proposed action on the human environment involving
community disruption and relocation. a. The statement should include a
description of probable impact sufficient to enable an understanding of
the extent of the environmental and social impact of the project
alternatives and to consider whether relocation problems can be properly
handled. This would include the following information obtainable by
visual inspection of the proposed affected area and from secondary
sources and community sources when available.
(1) An estimate of the households to be displaced including the
family characteristics (e.g., minorities, and income levels, tenure, the
elderly, large families).
(2) Impact on the human environment of an action which divides or
disrupts an established community, including where pertinent, the effect
of displacement on types of families and individuals affected, effect of
streets cut off, separation of residences from community facilities,
separation of residential areas.
(3) Impact on the neighborhood and housing to which relocation is
likely to take place (e.g., lack of sufficient housing for large
families, doublings up).
(4) An estimate of the businesses to be displaced, and the general
effect of business dislocation on the economy of the community.
(5) A discussion of relocation housing in the area and the ability
to provide adequate relocation housing for the types of families to be
displaced. If the resources are insufficient to meet the estimated
displacement needs, a description of the actions proposed to remedy this
situation including, if necessary, use of housing of last resort.
(6) Results of consultation with local officials and community
groups regarding the impacts to the community affected. Relocation
agencies and staff and other social agencies can help to describe
probable social impacts of this proposed action.
(7) Where necessary, special relocation advisory services to be
provided the elderly, handicapped and illiterate regarding
interpretations of benefits, assistance in selecting replacement housing
and consultation with respect to acquiring, leasing, and occupying
replacement housing.
b. This data should provide the preliminary basis for assurance of
the availability of relocation housing as required by DOT 5620.1,
Replacement Housing Policy, dated June 24, 1970, and 49 CFR 25.53.
7. Considerations relating to pedestrians and bicyclists. Where
appropriate, the statement should discuss impacts on and consideration
to be given in the development of the project to pedestrian and bicycle
access, movement and safety within the affected area, particularly in
medium and high density commercial and residential areas.
8. Other social impacts. The general social groups specially
benefitted or harmed by the proposed action should be identified in the
statement including the following:
a. Particular effects of a proposal on the elderly, handicapped,
non-drivers, transit dependent, or minorities should be described to the
extent reasonably predictable.
b. How the proposal will facilitate or inhibit their access to jobs,
educational facilities, religious institutions, health and welfare
services, recreational facilities, social and cultural facilities,
pedestrian movement facilities, and public transit services.
9. Standards as to noise, air, and water pollution. The statement
shall reflect sufficient analysis of the effects of the proposed action
on attainment and maintenance of any environmental standards established
by law or administrative determination (e.g., noise, ambient air
quality, water quality) including the following documentation:
a. With respect to water quality, there should be consultation with
the agency responsible for the State water pollution control program as
to conformity with standards and regulations regarding storm sewer
discharge sedimentation control, and other non-point source discharges.
b. The comments or determinations of the offices charged with
administration of the State's implementation plan for air quality as to
the consistency of the project with State plans for the implementation
of ambient air quality standards.
c. Conformity to adopted noise standards, compatible, if
appropriate, with different land uses.
10. Energy supply and natural resources development. Where
applicable, the statement should reflect consideration of whether the
project or program will have any effect on either the production or
consumption of energy and other natural resources, and discuss such
effects if they are significant.
11. Flood hazard evaluation. When an alternative under consideration
encroaches on a flood plain, the statement should include evidence that
studies have been made and evidence of consultations with agencies with
[[Page 84]]
expertise have been carried out. Necessary measures to handle flood
hazard problems should be described. In compliance with Executive Order
11296, and Flood Hazard Guidelines for Federal Executive Agencies,
promulgated by the Water Resources Council, or how such requirements can
be met during project development.
12. Considerations relating to wetlands or coastal zones. Where
wetlands or coastal zones are involved, the statement should include:
a. Information on location, types, and extent of wetlands areas
which might be affected by the proposed action.
b. An assessment of the impacts resulting from both construction and
operation of the project on the wetlands and associated wildlife, and
measures to minimize adverse impacts.
c. A statement by the local representative of the Department of the
Interior, and any other responsible officials with special expertise,
setting forth his views on the impacts of the project on the wetlands,
the worth of the particular wetlands areas involved to the community and
to the Nation, and recommendations as to whether the proposed action
should proceed, and, if applicable, along what alternative route.
d. Where applicable, a discussion of how the proposed project
relates to the State coastal zone management program for the particular
State in which the project is to take place.
13. Construction impacts. In general, adverse impacts during
construction will be of less importance than long-term impacts of a
proposal. Nonetheless, statements should appropriately address such
matters as the following identifying any special problem areas:
a. Noise impacts from construction and any specifications setting
maximum noise levels.
b. Disposal of spoil and effect on borrow areas and disposal sites
(include specifications where special problems are involved).
c. Measures to minimize effects on traffic and pedestrians.
14. Land use and urban growth. The statement should include, to the
extent relevant and predictable:
a. The effect of the project on land use, development patterns, and
urban growth.
b. Where significant land use and development impacts are
anticipated, identify public facilities needed to serve the new
development and any problems or issues which would arise in connection
with these facilities, and the comments of agencies that would provide
these facilities.
Sec. Attachment 2 to Part 520--Areas of Environmental Impact and Federal
Agencies and Federal-State Agencies With Jurisdiction by Law or Special
Expertise To Comment Thereon
Editorial Note: Filed as part of the original document. For text see
39 FR 32546, Sept. 30, 1975.
Sec. Attachment 3 to Part 520--Offices Within Federal Agencies and
Federal-State Agencies for Information Regarding the Agencies' Impact
Statements for Which Comments Are Requested
Editorial Note: Filed as part of the original document. For text see
39 FR 35248, Sept. 30, 1975.
Sec. Attachment 4 to Part 520--State and Local Agency Review of Impact
Statements
1. OBM Revised Circular No. A-95 through its system of
clearinghouses provides a means for securing the views of State and
local environmental agencies, which can assist in the preparation of
impact statements. Under A-95, review of the proposed project in the
case of federally assisted projects (Part I of A-95) generally takes
place prior to the preparation of the impact statement. Therefore,
comments on the environmental effects of the proposed project that are
secured during this stage of the A-95 process represent inputs to the
environmental impact statement.
2. In the case of direct Federal development (Part II of A-95),
Federal agencies are required to consult with clearinghouses at the
earliest practicable time in the planning of the project or activity.
Where such consultation occurs prior to completion of the draft impact
statement, comments relating to the environmental effects of the
proposed action would also represent inputs to the environmental impact
statement.
3. In either case, whatever comments are made on environmental
effects of proposed Federal or federally assisted projects by
clearinghouses, or by State and local environmental agencies through
clearinghouses, in the course of the A-95 review should be attached to
the draft impact statement when it is circulated for review. Copies of
the statement should be sent to the agencies making such comments.
Whether those agencies then elect to comment again on the basis of the
draft impact statement is a matter to be left to the discretion of the
commenting agency depending on its resources, the significance of the
project and the extent
[[Page 85]]
to which its earlier comments were considered in preparing the draft
statement.
4. The clearinghouses may also be used, by mutual agreement, for
securing reviews of the draft environmental impact statement. However,
the Federal agency may wish to deal directly with appropriate State or
local agencies in the review of impact statements because the
clearinghouses may be unwilling or unable to handle this phase of the
process. In some cases, the Governor may have designated a specific
agency, other than the clearinghouse, for securing reviews of impact
statements. In any case, the clearinghouses should be sent copies of the
impact statement.
5. To aid clearinghouses in coordinating State and local comments,
draft statements should include copies of State and local agency
comments made earlier under the A-95 process and should indicate on the
summary sheet those other agencies from which comments have been
requested, as specified in Attachment 1.
PART 523_VEHICLE CLASSIFICATION--Table of Contents
Sec.
523.1 Scope.
523.2 Definitions.
523.3 Automobile.
523.4 Passenger automobile.
523.5 Non-passenger automobile.
523.6 Heavy-duty vehicle.
523.7 Heavy-duty pickup trucks and vans.
523.8 Heavy-duty vocational vehicle.
523.9 Truck tractors.
523.10 Heavy-duty trailers.
Authority: 49 U.S.C. 32901; delegation of authority at 49 CFR 1.95.
Sec. 523.1 Scope.
This part establishes categories of vehicles that are subject to
title V of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C.
2001 et seq.
(Sec. 301, Pub. L. 94-163, 80 Stat. 901 (15 U.S.C. 2001))
[42 FR 38362, July 28, 1977]
Sec. 523.2 Definitions.
As used in this part:
Ambulance has the meaning given in 40 CFR 86.1803.
Approach angle means the smallest angle, in a plane side view of an
automobile, formed by the level surface on which the automobile is
standing and a line tangent to the front tire static loaded radius arc
and touching the underside of the automobile forward of the front tire.
Axle clearance means the vertical distance from the level surface on
which an automobile is standing to the lowest point on the axle
differential of the automobile.
Base tire (for passenger automobiles, light trucks, and medium duty
passenger vehicles) means the tire size specified as standard equipment
by the manufacturer on each unique combination of a vehicle's footprint
and model type. Standard equipment is defined in 40 CFR 86.1803.
Basic vehicle frontal area is used as defined in 40 CFR 86.1803 for
passenger automobiles, light trucks, medium duty passenger vehicles and
Class 2b through 3 pickup trucks and vans. For heavy-duty tracts and
vocational vehicles, it has the meaning given in 40 CFR 1037.801.
Breakover angle means the supplement of the largest angle, in the
plan side view of an automobile that can be formed by two lines tangent
to the front and rear static loaded radii arcs and intersecting at a
point on the underside of the automobile.
Bus has the meaning given in 49 CFR 571.3.
Cab-complete vehicle means a vehicle that is first sold as an
incomplete vehicle that substantially includes the vehicle cab section
as defined in 40 CFR 1037.801. For example, vehicles known commercially
as chassis-cabs, cab-chassis, box-deletes, bed-deletes, and cut-away
vans are considered cab-complete vehicles. A cab includes a steering
column and a passenger compartment. Note that a vehicle lacking some
components of the cab is a cab-complete vehicle if it substantially
includes the cab.
Cargo-carrying volume means the luggage capacity or cargo volume
index, as appropriate, and as those terms are defined in 40 CFR 600.315-
08, in the case of automobiles to which either of these terms apply.
With respect to automobiles to which neither of these terms apply,
``cargo-carrying volume'' means the total volume in cubic feet, rounded
to the nearest 0.1 cubic feet, of
[[Page 86]]
either an automobile's enclosed nonseating space that is intended
primarily for carrying cargo and is not accessible from the passenger
compartment, or the space intended primarily for carrying cargo bounded
in the front by a vertical plane that is perpendicular to the
longitudinal centerline of the automobile and passes through the
rearmost point on the rearmost seat and elsewhere by the automobile's
interior surfaces.
Class 2b vehicles are vehicles with a gross vehicle weight rating
(GVWR) ranging from 8,501 to 10,000 pounds.
Class 3 through Class 8 vehicles are vehicles with a gross vehicle
weight rating (GVWR) of 10,001 pounds or more as defined in 49 CFR
565.15.
Coach bus has the meaning given in 40 CFR 1037.801.
Commercial medium- and heavy-duty on-highway vehicle means an on-
highway vehicle with a gross vehicle weight rating of 10,000 pounds or
more as defined in 49 U.S.C. 32901(a)(7).
Complete vehicle has the meaning given to completed vehicle as
defined in 49 CFR 567.3.
Concrete mixer has the meaning given in 40 CFR 1037.801.
Curb weight has the meaning given in 49 CFR 571.3.
Dedicated vehicle has the same meaning as dedicated automobile as
defined in 49 U.S.C. 32901(a)(8).
Departure angle means the smallest angle, in a plane side view of an
automobile, formed by the level surface on which the automobile is
standing and a line tangent to the rear tire static loaded radius arc
and touching the underside of the automobile rearward of the rear tire.
Dual-fueled vehicle (multi-fuel, or flexible-fuel vehicle) has the
same meaning as dual fueled automobile as defined in 49 U.S.C.
32901(a)(9).
Electric vehicle means a vehicle that does not include an engine,
and is powered solely by an external source of electricity and/or solar
power. Note that this does not include electric hybrid or fuel-cell
vehicles that use a chemical fuel such as gasoline, diesel fuel, or
hydrogen. Electric vehicles may also be referred to as all-electric
vehicles to distinguish them from hybrid vehicles.
Emergency vehicle means one of the following:
(1) For passenger cars, light trucks and medium duty passenger
vehicles, emergency vehicle has the meaning given in 49 U.S.C. 32902(e).
(2) For heavy-duty vehicles, emergency vehicle has the meaning given
in 40 CFR 1037.801.
Engine code has the meaning given in 40 CFR 86.1803.
Final stage manufacturer has the meaning given in 49 CFR 567.3.
Fire truck has the meaning given in 40 CFR 86.1803.
Footprint is defined as the product of track width (measured in
inches, calculated as the average of front and rear track widths, and
rounded to the nearest tenth of an inch) times wheelbase (measured in
inches and rounded to the nearest tenth of an inch), divided by 144 and
then rounded to the nearest tenth of a square foot. For purposes of this
definition, track width is the lateral distance between the centerlines
of the base tires at ground, including the camber angle. For purposes of
this definition, wheelbase is the longitudinal distance between front
and rear wheel centerlines.
Full-size pickup truck means a light truck or medium duty passenger
vehicle that meets the requirements specified in 40 CFR 86.1866-12(e).
Gross axle weight rating (GAWR) has the meaning given in 49 CFR
571.3.
Gross combination weight rating (GCWR) has the meaning given in 49
CFR 571.3.
Gross vehicle weight rating (GVWR) has the meaning given in 49 CFR
571.3.
Heavy-duty engine means any engine used for (or for which the engine
manufacturer could reasonably expect to be used for) motive power in a
heavy-duty vehicle. For purposes of this definition in this part, the
term ``engine'' includes internal combustion engines and other devices
that convert chemical fuel into motive power. For example, a fuel cell
and motor used in a heavy-duty vehicle is a heavy-duty engine. Heavy
duty-engines include those engines subject to the standards in 49 CFR
part 535.
Heavy-duty vehicle means a vehicle as defined in Sec. 523.6.
[[Page 87]]
Hitch means a device attached to the chassis of a vehicle for
towing.
Incomplete vehicle has the meaning given in 49 CFR 567.3.
Light truck means a non-passenger automobile meeting the criteria in
Sec. 523.5.
Manufacturer has the meaning given in 49 U.S.C. 32901(a)(14).
Medium duty passenger vehicle means a vehicle which would satisfy
the criteria in Sec. 523.5 (relating to light trucks) but for its gross
vehicle weight rating or its curb weight, which is rated at more than
8,500 lbs GVWR or has a vehicle curb weight of more than 6,000 pounds or
has a basic vehicle frontal area in excess of 45 square feet, and which
is designed primarily to transport passengers, but does not include a
vehicle that--
(1) Is an ``incomplete vehicle'' ' as defined in this subpart; or
(2) Has a seating capacity of more than 12 persons; or
(3) Is designed for more than 9 persons in seating rearward of the
driver's seat; or
(4) Is equipped with an open cargo area (for example, a pick-up
truck box or bed) of 72.0 inches in interior length or more. A covered
box not readily accessible from the passenger compartment will be
considered an open cargo area for purposes of this definition.
Mild hybrid gasoline-electric vehicle means a vehicle as defined by
EPA in 40 CFR 86.1866-12(e).
Motor home has the meaning given in 49 CFR 571.3.
Motor vehicle has the meaning given in 49 U.S.C. 30102.
Passenger-carrying volume means the sum of the front seat volume
and, if any, rear seat volume, as defined in 40 CFR 600.315-08, in the
case of automobiles to which that term applies. With respect to
automobiles to which that term does not apply, ``passenger-carrying
volume'' means the sum in cubic feet, rounded to the nearest 0.1 cubic
feet, of the volume of a vehicle's front seat and seats to the rear of
the front seat, as applicable, calculated as follows with the head room,
shoulder room, and leg room dimensions determined in accordance with the
procedures outlined in Society of Automotive Engineers Recommended
Practice J1100, Motor Vehicle Dimensions (Report of Human Factors
Engineering Committee, Society of Automotive Engineers, approved
November 2009).
(1) For front seat volume, divide 1,728 into the product of the
following SAE dimensions, measured in inches to the nearest 0.1 inches,
and round the quotient to the nearest 0.001 cubic feet.
(i) H61-Effective head room--front.
(ii) W3-Shoulder room--front.
(iii) L34-Maximum effective leg room-accelerator.
(2) For the volume of seats to the rear of the front seat, divide
1,728 into the product of the following SAE dimensions, measured in
inches to the nearest 0.1 inches, and rounded the quotient to the
nearest 0.001 cubic feet.
(i) H63-Effective head room--second.
(ii) W4-Shoulder room--second.
(iii) L51-Minimum effective leg room--second.
Pickup truck means a non-passenger automobile which has a passenger
compartment and an open cargo area (bed).
Pintle hooks means a type of towing hitch that uses a tow ring
configuration to secure to a hook or a ball combination for the purpose
of towing.
Recreational vehicle or RV means a motor vehicle equipped with
living space and amenities found in a motor home.
Refuse hauler has the meaning given in 40 CFR 1037.801.
Running clearance means the distance from the surface on which an
automobile is standing to the lowest point on the automobile, excluding
unsprung weight.
School bus has the meaning given in 49 CFR 571.3.
Static loaded radius arc means a portion of a circle whose center is
the center of a standard tire-rim combination of an automobile and whose
radius is the distance from that center to the level surface on which
the automobile is standing, measured with the automobile at curb weight,
the wheel parallel to the vehicle's longitudinal centerline, and the
tire inflated to the manufacturer's recommended pressure.
Strong hybrid gasoline-electric vehicle means a vehicle as defined
by EPA in 40 CFR 86.1866-12(e).
Temporary living quarters means a space in the interior of an
automobile
[[Page 88]]
in which people may temporarily live and which includes sleeping
surfaces, such as beds, and household conveniences, such as a sink,
stove, refrigerator, or toilet.
Transmission class has the meaning given in 40 CFR 600.002.
Tranmission configuration has the meaning given in 40 CFR 600.002.
Transmission type has the meaning given in 40 CFR 86.1803.
Truck tractor has the meaning given in 49 CFR 571.3 and 49 CFR
535.5(c). This includes most heavy-duty vehicles specifically designed
for the primary purpose of pulling trailers, but does not include
vehicles designed to carry other loads. For purposes of this definition
``other loads'' would not include loads carried in the cab, sleeper
compartment, or toolboxes. Examples of vehicles that are similar to
tractors but that are not tractors under this part include dromedary
tractors, automobile haulers, straight trucks with trailers hitches, and
tow trucks.
Van means a vehicle with a body that fully encloses the driver and a
cargo carrying or work performing compartment. The distance from the
leading edge of the windshield to the foremost body section of vans is
typically shorter than that of pickup trucks and sport utility vehicles.
Vocational tractor means a tractor that is classified as a
vocational vehicle according to 40 CFR 1037.630
Vocational vehicle (or heavy-duty vocational vehicle) has the
meaning given in Sec. 523.8 and 49 CFR 535.5(b). This includes any
vehicle that is equipped for a particular industry, trade or occupation
such as construction, heavy hauling, mining, logging, oil fields, refuse
and includes vehicles such as school buses, motorcoaches and RVs.
Work truck means a vehicle that is rated at more than 8,500 pounds
and less than or equal to 10,000 pounds gross vehicle weight, and is not
a medium-duty passenger vehicle as defined in 49 U.S.C. 32901(a)(19).
[81 FR 74235, Oct. 25, 2016]
Sec. 523.3 Automobile.
(a) An automobile is any 4-wheeled vehicle that is propelled by
fuel, or by alternative fuel, manufactured primarily for use on public
streets, roads, and highways and rated at less than 10,000 pounds gross
vehicle weight, except:
(1) A vehicle operated only on a rail line;
(2) A vehicle manufactured in different stages by 2 or more
manufacturers, if no intermediate or final-stage manufacturer of that
vehicle manufactures more than 10,000 multi-stage vehicles per year; or
(3) A work truck.
(b) The following vehicles rated at more than 6,000 pounds and less
than 10,000 pounds gross vehicle weight are determined to be
automobiles:
(1) Vehicles which would satisfy the criteria in Sec. 523.4
(relating to passenger automobiles) but for their gross vehicle weight
rating.
(2) Vehicles which would satisfy the criteria in Sec. 523.5
(relating to light trucks) but for their gross vehicle weight rating,
and which
(i) Have a basic vehicle frontal area of 45 square feet or less,
(ii) Have a curb weight of 6,000 pounds or less,
(iii) Have a gross vehicle weight rating of 8,500 pounds or less,
and
(iv) Are manufactured during the 1980 model year or thereafter.
(3) Vehicles that are defined as medium duty passenger vehicles, and
which are manufactured during the 2011 model year or thereafter.
(Sec. 9, Pub. L. 89-670, 80 Stat. 981 (49 U.S.C. 1657); sec. 301, Pub.
L. 94-163, 89 Stat. 901 (15 U.S.C. 2002); delegation of authority at 41
FR 25015, June 22, 1976)
[42 FR 38362, July 28, 1977, as amended at 43 FR 12013, Mar. 23, 1978;
44 FR 4493, Jan. 2, 1979; 71 FR 17676, Apr. 6, 2006; 74 FR 14449, Mar.
30, 2009]
Sec. 523.4 Passenger automobile.
A passenger automobile is any automobile (other than an automobile
capable of off-highway operation) manufactured primarily for use in the
transportation of not more than 10 individuals.
(Sec. 301, Pub. L. 94-163, 80 Stat. 901 (15 U.S.C. 2001))
[42 FR 38362, July 28, 1977]
[[Page 89]]
Sec. 523.5 Non-passenger automobile.
A non-passenger automobile means an automobile that is not a
passenger automobile or a work truck and includes vehicles described in
paragraphs (a) and (b) of this section:
(a) An automobile designed to perform at least one of the following
functions:
(1) Transport more than 10 persons;
(2) Provide temporary living quarters;
(3) Transport property on an open bed;
(4) Provide, as sold to the first retail purchaser, greater cargo-
carrying than passenger-carrying volume, such as in a cargo van; if a
vehicle is sold with a second-row seat, its cargo-carrying volume is
determined with that seat installed, regardless of whether the
manufacturer has described that seat as optional; or
(5) Permit expanded use of the automobile for cargo-carrying
purposes or other nonpassenger-carrying purposes through:
(i) For non-passenger automobiles manufactured prior to model year
2012, the removal of seats by means installed for that purpose by the
automobile's manufacturer or with simple tools, such as screwdrivers and
wrenches, so as to create a flat, floor level, surface extending from
the forwardmost point of installation of those seats to the rear of the
automobile's interior; or
(ii) For non-passenger automobiles manufactured in model year 2008
and beyond, for vehicles equipped with at least 3 rows of designated
seating positions as standard equipment, permit expanded use of the
automobile for cargo-carrying purposes or other nonpassenger-carrying
purposes through the removal or stowing of foldable or pivoting seats so
as to create a flat, leveled cargo surface extending from the
forwardmost point of installation of those seats to the rear of the
automobile's interior.
(b) An automobile capable of off-highway operation, as indicated by
the fact that it:
(1)(i) Has 4-wheel drive; or
(ii) Is rated at more than 6,000 pounds gross vehicle weight; and
(2) Has at least four of the following characteristics calculated
when the automobile is at curb weight, on a level surface, with the
front wheels parallel to the automobile's longitudinal centerline, and
the tires inflated to the manufacturer's recommended pressure--
(i) Approach angle of not less than 28 degrees.
(ii) Breakover angle of not less than 14 degrees.
(iii) Departure angle of not less than 20 degrees.
(iv) Running clearance of not less than 20 centimeters.
(v) Front and rear axle clearances of not less than 18 centimeters
each.
(Sec. 9, Pub. L. 89-670, 80 Stat. 981 (49 U.S.C. 1657); sec. 301, Pub.
L. 94-163, 89 Stat. 901 (15 U.S.C. 2002); delegation of authority at 41
FR 25015, June 22, 1976.)
[74 FR 14449, Mar. 30, 2009]
Sec. 523.6 Heavy-duty vehicle.
(a) A heavy-duty vehicle is any commercial medium or heavy-duty on-
highway vehicle or a work truck, as defined in 49 U.S.C. 32901(a)(7) and
(19). For the purpose of this section, heavy-duty vehicles are divided
into four regulatory categories as follows:
(1) Heavy-duty pickup trucks and vans;
(2) Heavy-duty vocational vehicles;
(3) Truck tractors with a GVWR above 26,000 pounds; and
(4) Heavy-duty trailers.
(b) The heavy-duty vehicle classification does not include vehicles
excluded as specified in 49 CFR 535.3.
[81 FR 74237, Oct. 25, 2016]
Sec. 523.7 Heavy-duty pickup trucks and vans.
(a) Heavy-duty pickup trucks and vans are pickup trucks and vans
with a gross vehicle weight rating between 8,501 pounds and 14,000
pounds (Class 2b through 3 vehicles) manufactured as complete vehicles
by a single or final stage manufacturer or manufactured as incomplete
vehicles as designated by a manufacturer. See references in 40 CFR
86.1801-12, 40 CFR 86.1819-17, 40 CFR 1037.150, and 49 CFR 535.5(a).
(b) Heavy duty vehicles above 14,000 pounds GVWR may be optionally
certified as heavy-duty pickup trucks and
[[Page 90]]
vans and comply with fuel consumption standards in 49 CFR 535.5(a), if
properly included in a test group with similar vehicles at or below
14,000 pounds GVWR. Fuel consumption standards apply to these vehicles
as if they were Class 3 heavy-duty vehicles. The work factor for these
vehicles may not be greater than the largest work factor that applies
for vehicles in the test group that are at or below 14,000 pounds GVWR
(see 40 CFR 86.1819-14).
(c) Incomplete heavy-duty vehicles at or below 14,000 pounds GVWR
may be optionally certified as heavy-duty pickup trucks and vans and
comply with to the fuel consumption standards in 49 CFR 535.5(a).
[81 FR 74237, Oct. 25, 2016]
Sec. 523.8 Heavy-duty vocational vehicle.
Heavy-duty vocational vehicles are vehicles with a gross vehicle
weight rating (GVWR) above 8,500 pounds excluding:
(a) Heavy-duty pickup trucks and vans defined in Sec. 523.7;
(b) Medium duty passenger vehicles; and
(c) Truck tractors, except vocational tractors, with a GVWR above
26,000 pounds;
[76 FR 57491, Sept. 15, 2011]
Sec. 523.9 Truck tractors.
Truck tractors for the purpose of this part are considered as any
truck tractor as defined in 49 CFR part 571 having a GVWR above 26,000
pounds.
[76 FR 57492, Sept. 15, 2011]
Sec. 523.10 Heavy-duty trailers.
(a) A trailer means a motor vehicle with or without motive power,
designed for carrying cargo and for being drawn by another motor vehicle
as defined in 49 CFR 571.3. For the purpose of this part, heavy-duty
trailers include only those trailers designed to be drawn by a truck
tractor excluding non-box trailers other than flatbed trailer, tanker
trailers and container chassis and those that are coupled to vehicles
exclusively by pintle hooks or hitches instead of a fifth wheel. Heavy-
duty trailers may be divided into different types and categories as
follows:
(1) Box vans are trailers with enclosed cargo space that is
permanently attached to the chassis, with fixed sides, nose, and roof.
Tank trailers are not box vans.
(2) Box van with front-mounted HVAC systems are refrigerated vans.
Note that this includes systems that provide cooling, heating, or both.
All other box vans are dry vans.
(3) Trailers that are not box vans are non-box trailers. Note that
the standards for non-box trailers in 49 CFR 535.5(e)(2) apply only to
flatbed trailers, tank trailers, and container chassis.
(4) Box van with a length greater than 50 feet are long box vans.
Other box vans are short box vans.
(5) The following types of equipment are not trailers:
(i) Containers that are not permanently mounted on chassis.
(ii) Dollies used to connect tandem trailers.
(iii) Equipment that serves similar purposes but are not intended to
be pulled by a tractor.
(b) Heavy-duty trailers do not include trailers excluded in 49 CFR
535.3.
[81 FR 74237, Oct. 25, 2016]
PART 525_EXEMPTIONS FROM AVERAGE FUEL ECONOMY STANDARDS--
Table of Contents
Sec.
525.1 Scope.
525.2 Purpose.
525.3 Applicability.
525.4 Definitions.
525.5 Limitation on eligibility.
525.6 Requirements for petition.
525.7 Basis for petition.
525.8 Processing of petitions.
525.9 Duration of exemption.
525.10 Renewal of exemption.
525.11 Termination of exemption; amendment of alternative average fuel
economy standard.
525.12 Public inspection of information.
Authority: 15 U.S.C. 2002; 49 CFR 1.50.
Source: 42 FR 38376, July 28, 1977, unless otherwise noted.
Sec. 525.1 Scope.
This part establishes procedures under section 502(c) of the Motor
Vehicle Information and Cost Savings Act,
[[Page 91]]
as amended (15 U.S.C. 2002) for the submission and disposition of
petitions filed by low volume manufacturers of passenger automobiles to
exempt them from the average fuel economy standards for passenger
automobiles and to establish alternative average fuel economy standards
for those manufacturers.
Sec. 525.2 Purpose.
The purpose of this part is to provide content and format
requirements for low volume manufacturers of passenger automobiles which
desire to petition the Administrator for exemption from applicable
average fuel economy standards and for establishment of appropriate
alternative average fuel economy standards and to give interested
persons an opportunity to present data, views and arguments on those
petitions.
Sec. 525.3 Applicability.
This part applies to passenger automobile manufacturers.
Sec. 525.4 Definitions.
(a) Statutory terms. (1) The terms fuel, manufacture, manufacturer,
and model year, are used as defined in section 501 of the Act.
(2) The terms average fuel economy, fuel economy, and model type are
used as defined in 40 CFR 600.002-77.
(3) The term automobile means a vehicle determined by the
Administrator under 49 CFR part 523 to be an automobile.
(4) The term passenger automobile means an automobile determined by
the Administrator under 49 CFR part 523 to be a passenger automobile.
(5) The term customs territory of the United States is used as
defined in 19 U.S.C. 1202.
(b) Other terms. (1) The term base level and vehicle configuration
are used as defined in 40 CFR 600.002-77.
(2) The term vehicle curb weight is used as defined in 40 CFR
85.002.
(3) The term interior volume index is used as defined in 40 CFR
600.315-77.
(4) The term frontal area is used as defined in 40 CFR 86.129-79.
(5) The term basic engine is used as defined in 40 CFR 600.002-
77(a)(21).
(6) The term designated seating position is defined in 49 CFR 571.3.
(7) As used in this part, unless otherwise required by the context:
Act means the Motor Vehicle Information and Cost Savings Act (Pub.
L. 92-513), as amended by the Energy Policy and Conservation Act (Pub.
L. 94-163);
Administrator means the Administrator of the National Highway
Traffic Safety Administration;
Affected model year means a model year for which an exemption and
alternative average fuel economy standard are requested under this part;
Production mix means the number of passenger automobiles, and their
percentage of the petitioner's annual total production of passenger
automobiles, in each vehicle configuration which a petitioner plans to
manufacture in a model year; and
Total drive ratio means the ratio of an automobile's engine
rotational speed (in revolutions per minute) to the automobile's forward
speed (in miles per hour).
(Sec. 301, Pub. L. 94-163, 89 Stat. 871 (15 U.S.C. 2002); delegation of
authority at 41 FR 25015, June 22, 1976; sec. 9, Pub. L. 89-670, 80
Stat. 981 (49 U.S.C. 1657))
[42 FR 38376, July 28, 1977, as amended at 44 FR 55579, Sept. 27, 1979]
Sec. 525.5 Limitation on eligibility.
Any manufacturer that manufactures (whether or not in the customs
territory of the United States) 10,000 or more passenger automobiles in
the second model year preceding an affected model year or in the
affected model year is ineligible for an exemption for that affected
model year.
Sec. 525.6 Requirements for petition.
Each petition filed under this part must--
(a) Identify the model year or years for which exemption is
requested;
(b) Be submitted not later than 24 months before the beginning of
the affected model year, unless good cause for later submission is
shown;
(c) Be submitted in three copies to: Administrator, National Highway
Traffic Safety Administration, Washington, DC 20590;
[[Page 92]]
(d) Be written in the English language;
(e) State the full name, address, and title of the official
responsible for preparing the petition, and the name and address of the
manufacturer;
(f) Set forth in full data, views and arguments of the petitioner
supporting the exemption and alternative average fuel economy standard
requested by the petitioner, including the information and data
specified by Sec. 525.7 and the calculations and analyses used to
develop that information and data. No documents may be incorporated by
reference in a petition unless the documents are submitted with the
petition;
(g) Specify and segregate any part of the information and data
submitted under this part that the petitioner wishes to have withheld
from public disclosure in accordance with part 512 of this chapter.
(Sec. 301, Pub. L. 94-163, 89 Stat. 871 (15 U.S.C. 2002); delegation of
authority at 41 FR 25015, June 22, 1976; sec. 9, Pub. L. 89-670, 80
Stat. 981 (49 U.S.C. 1657))
[42 FR 38376, July 28, 1977, as amended at 44 FR 55579, Sept. 27, 1979;
46 FR 2063, Jan. 8, 1981]
Sec. 525.7 Basis for petition.
(a) The petitioner shall include the information specified in
paragraphs (b) through (h) in its petition.
(b) Whether the petitioner controls, is controlled by, or is under
common control with another manufacturer of passenger automobiles, and
if so, the nature of that control relationship, and the total number of
passenger automobiles manufactured by such other manufacturer or
manufacturers.
(c) The total number of passenger automobiles manufactured or likely
to be manufactured (whether or not in the customs territory of the
United States) by the petitioner in the second model year immediately
preceding each affected model year.
(d) For each affected model year, the petitioner's projections of
the most fuel efficient production mix of vehicle configurations and
base levels of its passenger automobiles which the petitioner could sell
in that model year, and a discussion demonstrating that these
projections are reasonable. The discussion shall include information
showing that the projections are consistent with--
(1) The petitioner's annual total production and production mix of
passenger automobiles manufactured or likely to be manufactured in each
of the four model years immediately preceding that affected model year;
(2) Its passenger automobile production capacity for that affected
model year;
(3) Its efforts to comply with that average fuel economy standard;
and
(4) Anticipated consumer demand in the United States for passenger
automobiles during that affected model year.
(e) For each affected model year, a description of the following
features of each vehicle configuration of the petitioner's passenger
automobiles to be manufactured in that affected model year;
(1) Maximum overall body width, overall length, and overall height,
determined in accordance with Motor Vehicle Dimensions SAE J1100a
(report of Human Engineering Committee, approved September 1973, as
revised September 1975);
(2) Vehicle curb weight;
(3) Number of designated seating positions and interior volume
index;
(4) Basic engine, displacement, and SAE rated net power, kilowatts;
(5) Fuel metering system, including the number of carburetor
barrels, if applicable;
(6) Drive train configuration and total drive ratio;
(7) Emission control system;
(8) Dynamometer road load setting, determined in accordance with 40
CFR part 86, and the method used to determine that setting, including
information indicating whether the road load setting was adjusted to
account for the presence of air conditioning and whether the setting was
based on the use of radial ply tires; and
(9) Use of synthetic lubricants, low viscosity lubricants, or
lubricants with additives that affect friction characteristics in the
crankcase, differential, and transmission of the vehicles tested under
the requirements of 40 CFR parts 86 and 600. With respect to automobiles
which will use these lubricants, indicate which one will be used and
explain
[[Page 93]]
why that type was chosen. With respect to automobiles which will not use
these lubricants, explain the reasons for not so doing.
(f) For each affected model year, a fuel economy value for each
vehicle configuration specified in 40 CFR 600.506(a)(2), base level, and
model type of the petitioner's passenger automobiles to be manufactured
in that affected model year calculated in accordance with subpart C of
40 CFR part 600 and based on tests or analyses comparable to those
prescribed or permitted under 40 CFR part 600 and a description of the
test procedures or analytical methods.
(g) For each affected model year, an average fuel economy figure for
the petitioner's passenger automobiles to be manufactured in that
affected model year calculated in accordance with 40 CFR 600.510(e) and
based upon the fuel economy values provided under paragraph (f) of this
section and upon the petitioner's production mix projected under
paragraph (d) of this section for the affected model year.
(h) Information demonstrating that the average fuel economy figure
provided for each affected model year under paragraph (g) of this
section is the maximum feasible average fuel economy achievable by the
petitioner for that model year, including--
(1) For each affected model year and each of the two model years
immediately following the first affected model year, a description of
the technological means selected by the petitioner for improving the
average fuel economy of its automobiles to be manufactured in that model
year.
(2) A chronological description of the petitioner's past and planned
efforts to implement the means described under paragraph (h)(1) of this
section.
(3) A description of the effect of other Federal motor vehicle
standards on the fuel economy of the petitioner's automobiles.
(4) For each affected model year, a discussion of the alternative
and additional means considered but not selected by the petitioner that
would have enabled its passenger automobiles to achieve a higher average
fuel economy than is achievable with the means described under paragraph
(h)(1) of this section. This discussion must include an explanation of
the reasons the petitioner had for rejecting these additional and
alternative means.
(5) In the case of a petitioner which plans to increase the average
fuel economy of its passenger automobiles to be manufactured in either
of the two model years immediately following the first affected model
year, an explanation of the petitioner's reasons for not making those
increases in that affected model year.
(Sec. 301, Pub. L. 94-163, 89 Stat. 871 (15 U.S.C. 2002); delegation of
authority at 41 FR 25015, June 22, 1976; sec. 9, Pub. L. 89-670, 80
Stat. 981 (49 U.S.C. 1657))
[42 FR 38376, July 28, 1977, as amended at 44 FR 55579, Sept. 27, 1979;
58 FR 18029, Apr. 7, 1993]
Sec. 525.8 Processing of petitions.
(a) If a petition is found not to contain the information required
by this part, the petition is informed about the areas of insufficiency
and advised that the petition will not receive further consideration
until the required information is submitted.
(b) The Administrator may request the petitioner to provide
information in addition to that required by this part.
(c) The Administrator publishes a proposed decision in the Federal
Register. The proposed decision indicates the proposed grant of the
petition and establishment of an alternative average fuel economy
standard, or the proposed denial of the petition, specifies the reasons
for the proposal and invites written public comment on the proposal.
(d) Any interested person may, upon written request to the
Administrator not later than 15 days after the publication of a notice
under paragraph (c) of this section, meet informally with an appropriate
official of the National Highway Traffic Safety Administration to
discuss the petition or notice.
(e) After the conclusion of the period for public comment on the
proposal, the Administrator publishes a final decision in the Federal
Register. The final decision is based on the petition, written public
comments, and other
[[Page 94]]
available information. The final decision sets forth the grant of the
exemption and establishes an alternative average fuel economy standard
or the denial of the petition, and the reasons for the decision.
(Sec. 301, Pub. L. 94-163, 89 Stat. 871 (15 U.S.C. 2002); delegation of
authority at 41 FR 25015, June 22, 1976); sec. 9, Pub. L. 89-670, 80
Stat. 981 (49 U.S.C. 1657))
[42 FR 38376, July 28, 1977, as amended at 44 FR 55579, Sept. 27, 1979]
Sec. 525.9 Duration of exemption.
An exemption may be granted under this part for not more than three
model years.
Sec. 525.10 Renewal of exemption.
A manufacturer exempted under this part may request renewal of its
exemption by submitting a petition meeting the requirements of
Sec. Sec. 525.6 and 525.7.
Sec. 525.11 Termination of exemption; amendment of alternative
average fuel economy standard.
(a) Any exemption granted under this part for an affected model year
does not apply to a manufacturer that is ineligible under Sec. 525.5
for an exemption in that model year.
(b) The administrator may initiate rulemaking either on his own
motion or on petition by an interested person to terminate an exemption
granted under this part or to amend an alternative average fuel economy
standard established under this part.
(c) Any interested persons may petition the Administrator to
terminate an exemption granted under this part or to amend an
alternative average fuel economy standard established under this part.
Sec. 525.12 Public inspection of information.
(a) Except as provided in paragraph (b), any person may inspect
available information relevant to a petition under this part, including
the petition and any supporting data, memoranda of informal meetings
with the petitioner or any other interested persons, and the notices
regarding the petition, in the Docket Section of the National Highway
Traffic Safety Administration. Any person may obtain copies of the
information available for inspection under this paragraph in accordance
with part 7 of the regulations of the Office of the Secretary of
Transportation (49 CFR part 7).
(b) Except for the release of confidential information authorized by
section 505 of the Act and part 512 of this chapter, information made
available for public inspection does not include information for which
confidentiality is requested under Sec. 525.6(g) and is granted in
accordance with part 512 and sections 502 and 505 of the Act and section
552(b) of title 5 of the U.S.C.
[46 FR 2063, Jan. 8, 1981]
PART 526_PETITIONS AND PLANS FOR RELIEF UNDER THE AUTOMOBILE FUEL
EFFICIENCY ACT OF 1980--Table of Contents
Sec.
526.1 General provisions.
526.2 U.S. production by foreign manufacturer.
526.3 Transfer of vehicle from non-domestic to domestic fleet.
526.4 [Reserved]
526.5 Earning offsetting monetary credits in future model years.
Authority: 15 U.S.C. 2002 and 2003; delegation of authority at 49
CFR 1.50.
Source: 47 FR 7248, Feb. 18, 1982, unless otherwise noted.
Sec. 526.1 General provisions.
(a) Applicability. These regulations apply to petitions and plans
submitted under the Automobile Fuel Efficiency Act of 1980, Pub. L. 96-
425, as codified in Title V of the Motor Vehicle Information and Cost
Savings Act, 15 U.S.C. 2001 et seq.
(b) Address. Each petition and plan submitted under the applicable
provisions of sections 502 and 503 of the Motor Vehicle Information and
Cost Savings Act must be addressed to the Administrator, National
Highway Traffic Safety Administration, 400 Seventh Street, SW.,
Washington DC 20590.
(c) Authority and scope of relief. Each petition or plan must
specify the specific provision of the Motor Vehicle Information and Cost
Savings Act under which relief is being sought. The petition or plan
must also specify the
[[Page 95]]
model years for which relief is being sought.
[47 FR 7248, Feb. 18, 1982, as amended at 59 FR 25576, May 17, 1994]
Sec. 526.2 U.S. production by foreign manufacturer.
Each petition filed under section 503(b)(3) of the Motor Vehicle
Information and Cost Savings Act must contain the following information:
(a) For each model type (as defined by the Environmental Protection
Agency in 40 CFR part 600) planned by the petitioner to be sold in the
United States (regardless of place of manufacture), and for each model
year beginning with the year before the first one for which relief is
sought by the petition through the last year covered by the petition,
the following information based on the petitioner's current product plan
and the assumption that the petition will be granted:
(1) A description of the model type, including car line designation,
engine displacement and type, transmission type, and average fuel
economy;
(2) U.S. sales projected for the model type;
(3) The average percentage of the cost to the manufacturer of the
model type which is attributable to value added in the United States or
Canada, determined in accordance with 40 CFR 600.511-80, and the total
manufacturing cost per vehicle; and
(4) In the case of model types not offered for sale in the United
States before the first year for which relief is sought in the petition
or other model types for which expansions in production capacity are
planned during the years covered by the petition, information (including
any marketing surveys) indicating from where the additional sales will
be captured. If sales are projected to be captured from U.S.
manufacturers, the petition must provide an estimate of the employment
impact on those manufacturers of the lost sales and the gain in
employment for the petitioner and its U.S. suppliers.
(b) The total number of persons employed in the United States by the
petitioner, excluding non-motor vehicle industry related employees, for
each model year covered by the petition and for the model year
immediately prior to those years.
(c) A description of how the petitioner's responses to paragraphs
(a) and (b) of this section would differ if the petition were denied.
[47 FR 7248, Feb. 18, 1982, as amended at 59 FR 25576, May 17, 1994]
Sec. 526.3 Transfer of vehicle from non-domestic to domestic fleet.
Each plan submitted under section 503(b)(4) of the Motor Vehicle
Information and Cost Savings Act must contain the following information:
(a) For each model year for which relief is sought in the plan and
for each model type of automobile sought to be included by the submitter
in its domestic fleet under the plan (i.e., those with at least 50
percent but less than 75 percent U.S. or Canadian value added), provide
the following information:
(1) A description of the model type, including engine type and
displacement, transmission class, car line designation, and fuel
economy;
(2) The projected U.S. sales of the model type;
(3) The average total manufacturing cost per vehicle for the model
type;
(4) The percentage of the cost to the manufacturer attributable to
value added in the United States or Canada for the model type:
(b) For each year covered by the plan, a list of individual product
actions (e.g., change from imported engine to domestically manufactured
engine) which will increase the domestic content of the affected
vehicles. For each action, provide the model year in which the action
will take effect, a description of the nature of the action, and the
percentage change in domestic content resulting from the action.
[47 FR 7248, Feb. 18, 1982, as amended at 59 FR 25576, May 17, 1994]
Sec. 526.4 [Reserved]
Sec. 526.5 Earning offsetting monetary credits in future model years.
Each plan submitted under section 502(l) of the Motor Vehicle
Information and Cost Savings Act must contain the following information:
(a) Projected average fuel economy and production levels for the
class of
[[Page 96]]
automobiles which may fail to comply with a fuel economy standard and
for any other classes of automobiles from which credits may be
transferred, for the current model year and for each model year
thereafter ending with the last year covered by the plan.
(b) A list and full description of each planned product action
(e.g., new model, mix change) which will affect the average fuel economy
of the class of automobiles subject to the credit earning plan, for each
model year beginning with the current model year and ending with the
last year covered by the credit earning plan.
(c) The portion of the petitioner's fleet affected by each product
action (e.g., all K-cars with 6-cylinder engines) and the number of
affected vehicles.
(d) The fuel economy effect of each product action specified under
paragraph (b) of this section per affected vehicle.
[47 FR 7248, Feb. 18, 1982, as amended at 59 FR 25576, May 17, 1994]
PART 529_MANUFACTURERS OF MULTISTAGE AUTOMOBILES--Table of Contents
Sec.
529.1 Scope and purpose.
529.2 Applicability.
529.3 Definitions.
529.4 Requirements for incomplete automobile manufacturers.
529.5 Requirements for intermediate manufacturers.
529.6 Requirements for final-stage manufacturers.
Authority: Sec. 301, Pub. L. 94-163, 80 Stat. 901 (15 U.S.C. 2001);
delegation of authority at 41 FR 25015, June 22, 1976.
Source: 42 FR 38372, July 28, 1977, unless otherwise noted.
Sec. 529.1 Scope and purpose.
This part determines, in cases where more than one person is the
manufacturer of an automobile, which person is to be treated as the
manufacturer for purposes of compliance with Title V of the Motor
Vehicle Information and Cost Savings Act, as amended (15 U.S.C. 2001 et
seq.) and rules issued thereunder.
Sec. 529.2 Applicability.
This part applies to incomplete automobile manufacturers,
intermediate manufacturers, and final-stage manufacturers of automobiles
that are manufactured in two or more stages.
Sec. 529.3 Definitions.
(a) Statutory terms. (1) The term automobile is used as defined in
section 501 of the Act and in accordance with the determinations in 49
CFR part 523.
(2) The terms manufacture, manufacturer, and fuel economy are used
as defined in section 501 of the Act.
(b) Other terms. (1) Act means the Motor Vehicle Information and
Cost Savings Act (Pub. L. 92-513), as amended by the Energy Policy and
Conservation Act (Pub. L. 94-163).
(2) Completed automobile means an automobile that requires no
further manufacturing operations to perform its intended function, other
than the addition of readily attachable components, such as mirrors or
tire and rim assemblies, or minor finishing operations such as painting.
(3) Curb weight is defined the same as vehicle curb weight in 40 CFR
part 86.
(4) Final-stage manufacturer means a person who performs such
manufacturing operations on an incomplete automobile that it becomes a
completed automobile.
(5) Frontal area is used as defined in 40 CFR 86.079-2.
(6) Incomplete automobile means an assemblage consisting, as a
minimum, of frame and chassis structure, power train, steering system,
suspension system, and braking system to the extent that those systems
are to be part of the completed automobile, that requires further
manufacturing operations, other than the addition of readily attachable
components, such as mirrors or tire and rim assemblies, or minor
finishing operations such as painting, to become a completed automobile.
(7) Incomplete automobile manufacturer means a person who
manufactures an incomplete automobile by assembling components none of
which, taken separately, constitute a complete automobile.
(8) Intermediate manufacturer means a person, other than the
incomplete automobile manufacturer or the final-
[[Page 97]]
stage manufacturer, who performs manufacturing operations on an
incomplete automobile.
[42 FR 38372, July 28, 1977, as amended at 42 FR 39983, Aug. 8, 1977]
Sec. 529.4 Requirements for incomplete automobile manufacturers.
(a) Except as provided in paragraph (c) of this section, Sec. Sec.
529.5 and 529.6, each incomplete automobile manufacturer is considered,
with respect to multistage automobiles incorporating its incomplete
automobiles, the manufacturer of the multistage automobiles for purposes
of the requirements of Title V and rules issued thereunder.
(b) Each incomplete automobile manufacturer shall furnish with each
of its incomplete automobiles, when it is delivered to the subsequent
manufacturer, (1) a document that contains the following information--
(i) Name and mailing address of the incomplete automobile
manufacturer.
(ii) Month and year during which the incomplete automobile
manufacturer performed its last manufacturing operation on the
incomplete automobile.
(iii) Identification of the incomplete automobile or group of
incomplete automobiles to which the document applies. The identification
may be by serial number or otherwise, but it must be sufficient to
enable a subsequent manufacturer to ascertain positively that the
document applies to a particular incomplete automobile even if the
document is not attached to that automobile.
(iv) Fuel economy values determined by the incomplete automobile
manufacturer for the automobile in accordance with 40 CFR part 600 and a
statement that a fuel economy label containing those values has been
prepared in accordance with Environmental Protection Agency regulation
by the manufacturer identified in the document.
(v) Maximum curb weight that may not be exceeded by a subsequent
manufacturer without invalidating the fuel economy values determined by
the incomplete automobile manufacturer.
(vi) Maximum frontal area that may not be exceeded by a subsequent
manufacturer without invalidating the fuel economy values determined by
the incomplete automobile manufacturer.
(vii) Whether the fuel economy values have been computed with the
road load horsepower set to take into account the presence of air
conditioning.
(2) A fuel economy label conforming with 40 CFR part 600.
(c)(1) The incomplete automobile manufacturer shall either attach
the document specified in paragraph (b)(1) of this section to the
incomplete automobile in such a manner that it will not be inadvertently
detached or send that document directly to the subsequent manufacturer
to which that automobile is delivered.
(2)(i) If the incomplete automobile manufacturer places the portion
of the body including the windshield and front seat side windows on the
incomplete automobile, that manufacturer shall attach the fuel economy
label specified in paragraph (b)(2) of this section to that automobile
in accordance with 40 CFR part 600. If the incomplete automobile
manufacturer does not place that portion of the body on the incomplete
automobile, that manufacturer shall send that label directly to the
subsequent manufacturer to which that automobile is delivered.
(ii) Upon request by an intermediate or final-stage manufacturer for
a copy of a fuel economy label that is required by paragraph (b)(2) of
this section to have been prepared by the incomplete automobile
manufacturer for one of its incomplete automobiles, identified by the
requesting manufacturer in the same fashion as in the document specified
in paragraph (b)(1) of this section, the incomplete automobile
manufacturer shall send that manufacturer a copy of the label.
Sec. 529.5 Requirements for intermediate manufacturers.
(a) Except as provided in paragraph (d) of this section and in Sec.
529.6, each intermediate manufacturer whose manufacturing operations on
an incomplete automobile cause it to exceed the maximum curb weight or
maximum frontal area set forth in the document furnished it by the
incomplete automobile manufacturer under Sec. 529.4(c)(1) or by a
previous intermediate manufacturer under paragraph (b) of this section,
as appropriate, is considered the
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manufacturer of the multistage automobile manufactured from that
automobile for the purpose of the requirements of Title V and rules
issued thereunder, other than that in part 537, Fuel Economy Reports.
(b) Each intermediate manufacturer of an incomplete automobile shall
furnish, in the manner specified in Sec. 529.4(c), to the subsequent
manufacturer of that automobile the document required by Sec. 529.4(b)
regarding that automobile. If any of the changes in the automobile made
by the intermediate manufacturer affect the validity of the fuel economy
values or other statement in the document or any addendum attached to
the document by a previous manufacturer of the automobile, the
intermediate manufacturer shall furnish an addendum to the document that
contains its name and mailing address and an indication of all changes
that should be made in the document to reflect changes that it made in
the automobile.
(c) Each intermediate manufacturer that is required by paragraph (b)
of this section to furnish an addendum to a document required by Sec.
529.4(b) shall, within 10 days after completing its manufacturing
operations, send a copy of the document and addendum to the
Administrator of the Environmental Protection Agency and to the
manufacturer previously considered under this part to be the
manufacturer of the automobile.
(d)(1) If the intermediate manufacturer's manufacturing operations
on an incomplete automobile cause it to exceed the maximum curb weight
or maximum frontal area set forth in the document furnished it by the
incomplete automobile manufacturer under Sec. 529.4(c)(1) or a previous
intermediate manufacturer under paragraph (b) of this section, as
appropriate, that manufacturer shall prepare a new fuel economy label
for that automobile in accordance with 40 CFR part 600.
(2) If neither the intermediate manufacturer of an incomplete
automobile nor any previous manufacturer of that automobile has placed
the portion of the body including the windshield and front seat side
windows on that automobile, the intermediate manufacturer shall send the
fuel economy label furnished it by the incomplete automobile
manufacturer under Sec. 529.4(c)(2)(i) or a previous intermediate
manufacturer under paragraph (d)(2) of this section or prepared by it
under paragraph (d)(1) of this section, as appropriate, directly to the
subsequent manufacturer to which that automobile is delivered.
(3) If the intermediate manufacturer places the portion of the body
including the windshield and front seat side windows on the incomplete
automobile, that manufacturer shall attach the fuel economy label
furnished it under Sec. 529.4(c)(i) or paragraph (d)(2) of this section
or the fuel economy label prepared by it under paragraph (d)(1) of this
section, as appropriate, to that automobile in accordance with 40 CFR
part 600.
(4) The intermediate manufacturer shall attach to the incomplete
automobile in accordance with 40 CFR part 600 a fuel economy label
identical to the label that is required under this part to have been
prepared by the manufacturer considered under this part to be the
manufacturer of that automobile if:
(i) The portion of the body including the windshield and front seat
side windows was added to the incomplete automobile by a previous
manufacturer;
(ii) The intermediate manufacturer's manufacturing operations do not
cause that automobile to exceed either of the maxima specified in
paragraph (d)(1) of this section; and
(iii) That label is not on that automobile when received by the
intermediate manufacturer or is removed from that automobile while it is
in the possession of that manufacturer.
(5) Upon request by a subsequent intermediate manufacturer or by a
final-stage manufacturer for a copy of a fuel economy label prepared by
the intermediate manufacturer under paragraph (d)(1) of this section for
one of its incomplete automobiles, identified by the requesting
manufacturer in the same fashion as in the document specified in Sec.
529.4(b)(1), the intermediate manufacturer shall send that manufacturer
a copy of that label.
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Sec. 529.6 Requirements for final-stage manufacturers.
(a) Except as provided in paragraph (c) of this section, each final-
stage manufacturer whose manufacturing operations on an incomplete
automobile cause the completed automobile to exceed the maximum curb
weight or maximum frontal area set forth in the document specified in
Sec. 529.4(b) and furnished it by the incomplete automobile
manufacturer under Sec. 529.4(c)(1) or by the last intermediate
manufacturer under Sec. 529.5(b), as appropriate, is considered the
manufacturer of the completed automobile for the purpose of the
requirements of Title V and rules issued thereunder, other than those in
part 537, Fuel Economy Reports.
(b) Each final-stage manufacturer that becomes the manufacturer of a
multistage automobile under paragraph (a) of this section shall, within
10 days after completing its manufacturing operations on that
automobile, send written notification of its exceeding the curb weight
or frontal area maximum to the Administrator of the Environmental
Protection Agency and to the manufacturer previously considered under
this part to be the manufacturer of the automobile.
(c)(1) If the final-stage manufacturer becomes the manufacturer of a
multistage automobile under paragraph (a)(1) of this section, that
manufacturer shall prepare a new fuel economy label for that automobile
in accordance with 40 CFR part 600.
(2) If the final-stage manufacturer places the portion of the body
including the windshield and front seat side windows on the incomplete
automobile, that manufacturer shall attach the fuel economy label
furnished by the incomplete automobile manufacturer under Sec.
529.4(c)(2) or by the last intermediate manufacturer under Sec.
529.5(d)(2) or the fuel economy label prepared by the final-stage
manufacturer under paragraph (c)(1) of this section, as appropriate, to
that automobile in accordance with 40 CFR part 600.
(3) The final-stage manufacturer shall attach to the completed
automobile in accordance with 40 CFR part 600 a fuel economy label
identical to the label that is required under this part to have been
prepared by the manufacturer considered under this part to be the
manufacturer of that automobile if:
(i) The portion of the body including the windshield and front seat
side windows was added to the completed automobile by a previous
manufacturer;
(ii) The final-stage manufacturer's manufacturing operations do not
cause that automobile to exceed either of the maxima specified in
paragraph (c)(1) of this section; and
(iii) That fuel economy label is not on that automobile when
received by that manufacturer or is removed from that automobile while
it is in the possession of that manufacturer.
PART 531_PASSENGER AUTOMOBILE AVERAGE FUEL ECONOMY STANDARDS--
Table of Contents
Sec.
531.1 Scope.
531.2 Purpose.
531.3 Applicability.
531.4 Definitions.
531.5 Fuel economy standards.
531.6 Measurement and calculation procedures.
Appendix A to Part 531--Example of Calculating Compliance Under Sec.
531.5(c)
Authority: 49 U.S.C. 32902, delegation of authority at 49 CFR 1.50.
Source: 42 FR 33552, June 30, 1977, unless otherwise noted.
Sec. 531.1 Scope.
This part establishes average fuel economy standards pursuant to
section 502 (a) and (c) of the Motor Vehicle Information and Cost
Savings Act, as amended, for passenger automobiles.
[43 FR 28204, June 29, 1978]
Sec. 531.2 Purpose.
The purpose of this part is to increase the fuel economy of
passenger automobiles by establishing minimum levels of average fuel
economy for those vehicles.
Sec. 531.3 Applicability.
This part applies to manufacturers of passenger automobiles.
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