[Federal Register: June 26, 2003 (Volume 68, Number 123)]
[Rules and Regulations]
[Page 37965-37968]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn03-11]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 658
[FHWA Docket No. FHWA-2001-11819]
RIN 2125-AE94
Designation of Dromedary Equipped Truck Tractor-Semitrailers as
Specialized Equipment
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: The FHWA amends its regulation on truck size and weight to
include within the definition of ``specialized equipment'' dromedary
equipped truck tractor-semitrailer combination vehicles, when
transporting Class 1 explosives and/or any munitions related security
material as specified by the U.S. Department of Defense (DoD) in
compliance with the U.S. DOT's Hazardous Material Regulations. This
change is necessary because shipping these non-compatible explosives in
the same vehicle combination, where one part of the cargo may be
separately carried in the dromedary unit, reduces the number of
vehicles needed to transport munitions, increases military readiness,
and reduces the number of vehicles on the road. This inclusion will
allow the DOD, specifically the Department of the Army (DA) to expedite
the movement of munitions for the military, especially in times of
national emergency.
EFFECTIVE DATE: July 28, 2003.
FOR FURTHER INFORMATION CONTACT: Mr. Phil Forjan, Office of Freight
Management and Operations (202) 366-6817, or Mr. Raymond W. Cuprill,
Office of the Chief Counsel (202) 366-0791, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t. Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users may access all comments received by the U.S. DOT
Docket Facility, Room PL-401, by using the universal resource locator
(UAL) http://dms.dot.gov. It is available 24 hours each day, 365 days
each year. Please follow the instructions online for more information
and help.
An electronic copy of this document may be downloaded by using a
computer, modem and suitable communications software, from the
Government Printing Office's Electronic Bulletin Board Service at (202)
512-1661. Internet users may reach the Office of the Federal Register's
Home page at: http://www.archives.gov and the Government Printing
Office's Web page at: http://www.access.gpo.gov/nara.
Background
On June 22, 2001, the FHWA received a petition from the U.S.
Department of the Army (DA) to amend 23 CFR 658.13 to include as
``specialized equipment'' dromedary-equipped truck tractor-semitrailer
combination vehicles, when transporting Class 1 explosives \1\ for the
DOD in compliance with the U.S. DOT's hazardous material regulations
found at 49 CFR 177.835. A copy of the petition was included in FHWA
Docket No. FHWA-2002-11819. The motivation for the petition and a
summary of events leading up to its submission, was provided in a
notice of proposed rulemaking (NPRM) published on October 23, 2002 (67
FR 65056).
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\1\ As defined in 49 CFR 173.50. As noted in 49 CFR 173.53,
prior to January 1, 1991, Class 1 explosives were known as Class A,
B, or C explosives.
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In response to the Army's request, we proposed to amend our
regulation on truck size and weight to address the issue of dromedary
equipped truck tractors for munitions carriage by providing a
specialized equipment designation for the combination vehicle in
question. Specificially, we proposed that a truck tractor equipped with
a dromedary unit operating in combination with a semitrailer was
proposed to be designated ``specialized equipment,'' when transporting
Class 1 explosives, and/or any munitions related security material, as
specified by the DOD in compliance with 49 CFR 177.835. This
designation would require States to allow operation of this combination
on the National Network (NN), and provide reasonable access between the
NN and service facilities and terminals. In order to accommodate the
typical equipment in use today for this type of operation, the proposal
included a requirement that all States allow these combinations up to
an overall length of 75 feet.
This designation would apply only to dromedary-equipped truck
tractor-semitrailer combination vehicles directly used in carrying
munitions for the DOD. When operating empty, while returning from a
delivery, the designation would continue to apply if the carrier can
document that hauling munitions is the company's business, or that the
most recent load consisted of a qualifying munitions or sensitive load.
The designation would not apply if any other cargo were being carried
in either the semitrailer or dromedary unit. For those instances, the
combination would no longer be considered ``specialized equipment,''
and would become subject to State regulations for drom equipped truck
truck-semitrailers.
Analyses of Comments
We received eight sets of comments to the docket. Of the eight
commenters, we received four from motor carriers, (Tri State Motor
Transit Company (TSMT), Landstar System, Carrier Group), Extreme
Transportation Inc., and Baggett Transportation Company; two from
States, (Connecticut and Missouri); Military Traffic Management Command
(MTMC), and the American Trucking Association (ATA). For the most part,
all comments were in favor of the proposed change.
The State of Connecticut stated in its response to the proposal
that ``dromedary equipped truck tractor-semitrailers having an overall
length not to exceed 75 feet may legally operate in the State of
Connecticut and adding
[[Page 37966]]
them as ``specialized equipment'' under 23 CFR 658 would not be in
conflict with existing State laws.''
The TSMT suggested that the most efficient way to transport non-
compatible explosives to the end user (troops in the field) is through
the use of dromedary equipment. It stated that the use of the dromedary
equipment requires only one vehicle to transport the non-compatible
explosives. Therefore, using a vehicle equipped with a dromedary box
reduces the number of vehicles (tractor/trailers) on the nation's
highways. The TSMT also indicated that it is a proponent of security,
safety, and compliance and views this revision as a way to enhance its
operation in these areas.
Landstar System Carrier Group, one of the Nation's largest
truckload carriers and one of the principal motor carriers involved
with the Department of Defense movements agreed with the proposed
changes. Landstar cited delays in the accqusition of permits and
inspections of its vehicles at the roadside, while moving critical
arms, ammunition and explosives in support of our Nation's fighting
forces. It indicated that including, as ``specialized equipment,''
dromedary-equipped truck-tractor-semitrailer combination vehicles when
transporting Class 1 explosives for the DOD is, in its opinion, the
proper decision.
Extreme Transportation Inc. and Baggett Transportation Company both
fully support designating dromedary equipped truck tractors for
munitions carriage by DOD carriers as ``specialized equipment.''
Furthermore, both carriers support the notion that the 75 feet length
restriction should apply to all dromedary equipped vehicles. The U.S.
Department of the Army's (DA) June 22, 2001, petition to the FHWA was
very specific. The DA asked to include as ``specialized equipment''
dromedary-equipped truck tractor-semitrailer combination vehicles, when
transporting Class 1 explosives for the DOD. The designation of all
dromedary-equipped truck tractor-semitrailers as ``specialized
equipment'' was not included in the DA petition and is outside the
scope of this rulemaking.
The ATA commended the FHWA for its comprehensive discourse and
framing of the dromedary subject. Furthermore, the ATA indicated that
it strongly supports the proposed change, as set forth in the NPRM.
However, the ATA did suggest one modification which reads as follows:
``The designation would not apply if any other cargo were being carried
in either the semitrailer or dromedary unit.'' The ATA explained that
the DOD ships many items which DOD (or other Federal agencies) deems to
be sensitive, but which are not strictly an Arms, Ammunition and
Explosives (AA&E) item or, as stated in the language of the NPRM, ``* *
* and/or any munitions related security material, as specified by DOD
in compliance with 49 CFR 177.835.'' Therefore, the ATA requested that
the final rule also specify as excludable ``freight deemed sensitive by
the United States Government.'' This would be in keeping with long-
standing practices used by both carriers and their DOD customers, and
would clarify the definition of permissible cargo shipped via subject
vehicles.
The ATA argued that, without this expanded designation, if a
dromedary-equipped truck were to include an item containing sensitive
technology (such as a computer) on that same vehicle, and the item were
not specifically associated with AA&E cargo, the new vehicle
designation of ``specialized equipment'' would not apply, and the
benefits noted above would be forfeited. The ATA expressed concern that
this situation did not make sense because the computer with sensitive
technology and the AA&E item both require DOD-specified protective
services, and it would be necessary to order an additional motor
carrier service to ship the security sensitive computer. Specifying,
``freight deemed sensitive by the United States Government'' would
protect these shipments from localized arbitrary enforcement
activities.
The ATA may be correct in assuming that the expanded designation of
the allowable cargo, ``freight deemed sensitive by the United States
Government'' may help accomplish DOD's overarching transportation
capacity goals. However, the DOD's petition was quite specific and
narrow in scope in requesting that dromedary equipped truck tractor-
semitrailer combination vehicles, when transporting Class 1 explosives
and/or any munitions related security material as specified by the U.S.
Department of Defense be defined as ``specialized equipment.''
Unfortunately, the issue of ``freight deemed sensitive by the United
States Government'' was not addressed in the NPRM and we believe it to
be outside the scope of this rulemaking. In addition, the term,
``freight deemed sensitive by the United States Government'' is too
broad in scope, would be too difficult to define, and would impose
complicated requirements. For these reasons, we have decided not to
expand the definition of allowable cargo to include ``freight deemed
sensitive by the U.S. government.'' We believe that the language
proposed in the NPRM is sufficient to aid the DOD in the shipment of
munitions cargo.
The MTMC submitted to the docket all the historical information
relating to this subject matter, as explained briefly in the Background
section. The FHWA believes that by including dromedary-equipped truck
tractor-semitrailer combination vehicles carrying military munitions,
as ``specialized equipment'' it will help the DOD, specifically the
Department of the Army (DA), expedite the movement of munitions for the
military, especially in times of national emergency.
Conclusion
All eight commenters are in favor of amending the FHWA regulation
on truck size and weight to include within the definition of
``specialized equipment'' dromedary equipped truck tractor-semitrailer
combination vehicles, when transporting Class 1 explosives and/or any
munitions related security material as specified by the U.S. Department
of Defense (DOD) in compliance with 49 CFR 177.835. There were several
requests to allow all dromedary equipped truck tractor-semitrailer
combinations up to an overall length of 75 feet to transport general
freight. Several commenters requested that the FHWA limit the length of
the semitrailer to 53 feet and remove the overall length requirement of
75 feet. We believe these recommendations to be outside the scope of
this rulemaking. Therefore, with the exception of one additional
phrase, this final rule will contain the same regulatory language
provided in a notice of proposed rulemaking (NPRM) published on October
23, 2002 (67 FR 65056). The phrase ``in compliance with 49 CFR
177.835'' will appear following ``as specified by the U.S. Department
of Defense'' in part 658.5 Definitions and part 658.13 Length in this
final rule. This additional statement makes clear that anything related
to the munitions that are required to be segregated from those
munitions in compliance with 49 CFR 177.835 will receive the benefit of
the ``specialized equipment'' designation.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
We have determined that this final rule is a significant regulatory
action within the meaning of Executive Order 12866 and the U.S. DOT
regulatory policies and procedures. This action comes in response to a
request from, and will directly affect activities under the direct
control, of the U.S.
[[Page 37967]]
Department of Defense: supplying munitions to the military. This final
rule will improve the shipment of munitions by standardizing the
regulatory control that States apply to the vehicles typically used for
this activity. The anticipated result will be an improvement in the
efficiency with which munitions are shipped. This potential improvement
will aid the national security effort with respect to the armed forces,
as well as activities associated with homeland security.
This final rule provides, at the Federal level, a regulatory
standard that already exists in many States. Although it potentially
preempts restrictions imposed by 23 States, it would not affect any
State's ability to discharge a traditional State government function,
i.e., issuing citations to illegally overlength vehicles.
The vehicles covered by this final rule are already operating in
most States, and will not have to be modified in any way to achieve
compliance. Accordingly, the anticipated annual economic effect of this
rulemaking will be negligible. This action will not have an adverse
effect on any other governmental agency, any level of government, the
industry, or the public, nor will it change any compliance or reporting
requirements that already exist.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this final rule on small
entities and has determined that the action will not have a significant
economic impact on a substantial number of small entities.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive order 13132, dated August 4, 1999, and
the FHWA has determined that this action has sufficient federalism
implications to warrant the preparation of a Federalism summary impact
statement.
This final rule will provide a consistent national regulation
applying only to vehicles hauling munitions for the Department of
Defense in support of military activities. This final rule is based on
the authority provided by 49 U.S.C. 31111(g) that allows the Secretary
to make the decisions necessary to accommodate specialized equipment.
The FHWA has also determined that, while this action will preempt any
inconsistent State law or State regulation, it will not affect the
State's ability to discharge traditional State government functions.
The States would continue to be able to enforce length restrictions
against these vehicles. What might change, however, depending on
existing State law, would be the threshold at which an enforcement
action is taken.
By allowing the vehicle described in this final rule to transport
munitions, the total number of trucks needed to perform this task would
be reduced. This reduction, in turn, improves the safety climate on the
highway system and in a small way slows infrastructure wear. Less than
half of the States (23) will be affected by this rule, and of those 23
States only 3 States fluctuate enforcing for overlength for the
combination vehicle covered by this rulemaking. The additional 28
States allow this combination to operate in its State.
However, due to the needs of the military and the nature of the
cargo, it is imperative that all States allow the combination vehicle
under discussion to operate. Even if only one or two States can
prohibit, or deter this vehicle and its cargo, timely support of the
military can be severely impacted.
Consultation with States over this issue has occurred in past
years. In February 1991, as a result of the activities surrounding the
Desert Shield/Desert Storm campaign, the FHWA issued an emergency rule
allowing the use of dromedary units to transport munitions (56 FR 4164,
February 1, 1991) for many of the same reasons used in support of the
current petition. That rule was in effect for 6 months, and was not
renewed for various reasons deemed important in responding to the
conditions at that time. After the emergency rule expired, in place of
a regulatory solution the FHWA urged all States and in particular those
where enforcement actions were taking place to recognize the importance
of the situation, and to try and accommodate munitions haulers in some
manner. According to the DOD's petitions, this ``persuasion'' method
appeared to work, at least for a few years into the mid-1990's. As this
verbal agreement method of handling the issue began to breakdown, a few
States again began to enforce length rules on these combinations,
causing interruptions in munitions delivery. While inconvenient, these
actions did not become critically disruptive until the current
activities aimed at terrorist actions around the world became a
national priority.
Additionally, the FHWA solicited input on the Federalism
implications of the rule from the National Governors' Association (NGA)
as a representative for the State officials. On May 9, 2002, we sent a
letter to the NGA seeking comment on any Federalism implications of our
proposed changes to 23 CFR 658. Having received no responses, we
published the NPRM on October 23, 2002, specifically soliciting comment
on any Federalism issues associated with our proposed rule. We did not
receive any comments to the docket addressing the issue of Federalism.
On December 9, 2002, we sent a follow up letter to the NGA, again
seeking comment on any Federalism implications to this final rule. To
date, we have received no responses or indication of concerns about the
Federalism implications of this rulemaking action from the NGA.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Programs Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
Federal programs and activities apply to this program.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. The FHWA has
determined that this final rule does not contain collection of
information requirements for the purposes of the PRA.
Unfunded Mandates Reform Act of 1995
This final rule will not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995,
109 Stat. 48). This final rule will not result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year (2 U.S.C.
1532). This final rule does not add any regulatory requirement that
will require any expenditure by any private sector party, or
governmental agency.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
[[Page 37968]]
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not economically significant and does not concern
an environmental risk to health or safety that may disproportionately
affect children.
Executive Order 12630 (Taking of Private Property)
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
National Environmental Policy Act
The Agency has analyzed this action for the purposes of the
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
et seq.) and has determined that this action will not have any effect
on the quality of the environment.
Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this action under Executive Order 13175,
dated November 6, 2000, and believes that this action will not have
substantial direct effects on one or more Indian tribes; will not
impose substantial direct compliance costs in Indian tribal
governments; and will not preempt tribal law. Therefore, a tribal
summary impact statement is not required.
Executive Order 13211 (Energy Effects)
We have analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a significant
energy action under that order because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, a Statement of Energy Effects under Executive Order
13211 is not required.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this section with the
Unified Agenda.
List of Subjects in 23 CFR Part 658
Grants program--transportation, Highways and roads, Motor carrier--
size and weight.
Issued on: June 19, 2003.
Mary E. Peters,
Federal Highway Administrator.
0
In consideration of the foregoing, the FHWA amends 23 CFR part 658 as
follows:
PART 658--TRUCK SIZE AND WEIGHT; ROUTE DESIGNATIONS--LENGTH, WIDTH
AND WEIGHT LIMITATIONS
0
1. The authority citation for part 658 continues to read as follows:
Authority: 23 U.S.C. 127 and 315; 49 U.S.C. 31111-31114; 49 CFR
1.48(b).
0
2. Amend Sec. 658.5 by adding the term ``dromedary unit'', and
revising the definition of ``tractor or truck tractor'', placing them
in alphabetical order, to read as follows:
Sec. 658.5 Definitions.
* * * * *
Dromedary unit. A box, deck, or plate mounted behind the cab and
forward of the fifth wheel on the frame of the power unit of a truck
tractor-semitrailer combination.
* * * * *
Tractor or Truck Tractor. The noncargo carrying power unit that
operates in combination with a semitrailer or trailer, except that a
truck tractor and semitrailer engaged in the transportation of
automobiles may transport motor vehicles on part of the power unit, and
a truck tractor equipped with a dromedary unit operating in combination
with a semitrailer transporting Class 1 explosives and/or any munitions
related security material as specified by the U.S. Department of
Defense in compliance with 49 CFR 177.835 may use the dromedary unit to
carry a portion of the cargo.
* * * * *
0
3. Add Sec. 658.13 (e)(6) to read as follows:
Sec. 658.13 Length.
* * * * *
(e) Specialized equipment--* * *
(6) Munitions carriers using dromedary equipment. A truck tractor
equipped with a dromedary unit operating in combination with a
semitrailer is considered to be specialized equipment, providing the
combination is transporting Class 1 explosives and/or any munitions
related security material as specified by the U.S. Department of
Defense in compliance with 49 CFR 177.835. No State shall impose an
overall length limitation of less than 75 feet on the combination while
in operation.
* * * * *
[FR Doc. 03-15998 Filed 6-25-03; 8:45 am]
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