[Federal Register: June 6, 2001 (Volume 66, Number 109)]
[Rules and Regulations]
[Page 30335-30339]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jn01-23]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 393
[FMCSA Docket FMCSA-1997-2222]
Parts and Accessories Necessary for Safe Operation; Trailer
Conspicuity
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule; partial suspension of deadline.
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[[Page 30336]]
SUMMARY: The FMCSA is amending the Federal Motor Carrier Safety
Regulations (FMCSRs) to extend the deadline for motor carriers
operating intermodal container chassis (container chassis) to comply
with the agency's requirement that trailers manufactured before
December 1, 1993, be retrofitted with retroreflective sheeting (or
reflex reflectors). Currently, the FMCSRs require that motor carriers
engaged in interstate commerce install retroreflective tape or reflex
reflectors on the sides and rear of semitrailers and trailers that were
manufactured prior to December 1, 1993, have an overall width of 2,032
mm (80 inches) or more, and a gross vehicle weight rating (GVWR) of
4,536 kg (10,001 pounds) or more. The deadline for compliance with the
rule is June 1, 2001. The partial suspension of the deadline will
enable motor carriers operating container chassis to continue using
those commercial motor vehicles without retroreflective sheeting (or
reflex reflectors) until December 1, 2001. This action is in response
to a petition from the Ocean Carrier Equipment Management Association,
Intermodal Association of North America, Institute of Intermodal
Container Lessors, and Association of American Railroads (collectively
referred to as ``the Petitioners'').
DATES: The effective date for this rule is June 1, 2001.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Bus and
Truck Standards and Operations, (202) 366-4009, Federal Motor Carrier
Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-
0001.
SUPPLEMENTARY INFORMATION:
Background
On December 10, 1992, the National Highway Traffic Safety
Administration (NHTSA) amended Federal Motor Vehicle Safety Standard
(FMVSS) No. 108 (49 CFR 571.108), to require that trailers with an
overall width of 2,032 mm (80 inches) or more and a GVWR greater than
4,536 kg (10,000 pounds), except trailers manufactured exclusively for
use as offices or dwellings, be equipped on the sides and rear with a
means for increasing their conspicuity (57 FR 58406). Trailer
manufacturers are given a choice of installing either red and white
retroreflective sheeting or reflex reflectors arranged in a red and
white pattern. Manufacturers of retroreflective sheeting or reflex
reflectors intended for use in satisfying these requirements must
certify compliance of their product with FMVSS No. 108, whether the
material is used as original or replacement equipment. The effective
date for the final rule was December 1, 1993.
FHWA Rulemaking and Congressional Action Concerning Retrofitting
On January 19, 1994, the FHWA published an ANPRM requesting
comments on issues related to the application of conspicuity treatments
to trailers manufactured prior to the effective date of the NHTSA's
final rule on trailer conspicuity (59 FR 2811). The agency requested
that commenters respond, at a minimum, to several specific questions
listed in the notice. In addition to responding to those specific
questions, the FHWA encouraged commenters to include a discussion of
any other issues that the commenters believed were relevant to the
rulemaking.
On August 6, 1996, the FHWA published a notice announcing that the
agency had completed its review of the comments received in response to
the ANPRM and that it would issue a notice of proposed rulemaking (61
FR 40781).
The Transportation Equity Act for the 21st Century (TEA-21) (Pub.
L. 105-178, 112 Stat. 107) was enacted on June 9, 1998. Section 4025
required that the Secretary issue a final rule regarding the
conspicuity of trailers manufactured before December 1, 1993, within
one year of the enactment of TEA-21. The Secretary was to consider, at
a minimum:
(1) The cost-effectiveness of any requirement to retrofit trailers
manufactured before December 1, 1993.
(2) The extent to which motor carriers have voluntarily taken steps
to increase equipment visibility.
(3) Regulatory flexibility to accommodate differing trailer designs
and configurations, such as tank trucks.
On June 19, 1998, the FHWA published a notice of proposed
rulemaking to require motor carriers to install retroreflective tape or
reflex reflectors within two years of the effective date of the final
rule (63 FR 33611). The agency proposed allowing motor carriers a
certain amount of flexibility in terms of the colors or color
combinations during a 10-year period beginning on the effective date of
the final rule, but requiring all older trailers to be equipped with
conspicuity treatments identical to those mandated for new trailers at
the end of the 10-year period. The proposal also specified the
locations at which the retroreflective material would have to be
applied to trailers during the phase-in period.
Although the FHWA drafted the NPRM prior to the enactment of the
TEA-21, the agency reviewed section 4025 of the TEA-21 prior to
publishing the NPRM. The FHWA considered the NPRM to be consistent with
the three statutory criteria.
The FHWA published its final rule on trailer conspicuity
retrofitting on March 31, 1999 (64 FR 15588). The final rule requires
that motor carriers engaged in interstate commerce install
retroreflective tape or reflex reflectors on the sides and rear of
semitrailers and trailers that were manufactured prior to December 1,
1993, have an overall width of 2,032 mm (80 inches) or more, and a
gross vehicle weight rating (GVWR) of 4,536 kg (10,001 pounds) or more.
Motor carriers must install retroreflective tape or reflex reflectors
by June 1, 2001. The final rule allows motor carriers a certain amount
of flexibility in terms of the colors or color combinations during a
10-year period beginning on June 1, 1999, but requires that all older
trailers be equipped with conspicuity treatments identical to those
mandated for new trailers by June 1, 2009.
Petition for Rulemaking
On March 30, 2001, the Petitioners, in accordance with 49 CFR
389.31 (Petitions for Rulemaking), requested that the FMCSA extend the
June 1, 2001, deadline for complying with the conspicuity retrofitting
rule (49 CFR 393.13) until June 1, 2002. A copy of the petition for
rulemaking is in the docket referenced at the beginning of this notice.
The Petitioners argued that it is impossible for them to complete the
required retrofitting by that date because they experienced technical
problems applying retroreflective sheeting to the container chassis,
and because unusually high volumes of intermodal freight over the past
two years have made it difficult to schedule retrofitting of the
chassis. The volume of intermodal freight and service demands have kept
the equipment in use almost constantly. The Petitioners believe an
extension of the deadline is necessary to avoid ``potentially
disastrous consequences'' for U.S. trade.
The Petitioners estimate that the FMCSA's retrofitting requirements
are applicable to 385,600 container chassis and 44,500 domestic
intermodal trailers manufactured before December 1, 1993. They estimate
that on June 1, 2001, there would be approximately 193,000 trailers
used in intermodal service (181,000 container chassis and 12,000
domestic intermodal trailers) still in need of conspicuity material.
With regard to the technical difficulties, the Petitioners
indicated that the initial retrofit methods proved to be unsuccessful,
so it took several
[[Page 30337]]
months to research, develop, test, and implement alternative retrofit
methods.
The Petitioners stated:
Although development of retrofit methods began as early as 1998, an
effective method for chassis was not developed and widely implemented
until February 2000, almost a year after the rule was issued. At the
time the final rule was promulgated, intermodal trailers and chassis
were retrofitted by applying adhesive reflective tape onto scrupulously
cleaned trailer or chassis surfaces when the ambient air temperature
and the temperature of the trailer or chassis surface was above 50
degrees Fahrenheit. Retrofitting in this way could only be accomplished
in good weather (i.e., during peak shipping season months when
equipment turn-around and unavailability is at its highest) or inside
heated maintenance and repair facilities, which are limited in number
and size.
Although intermodal trailers are still retrofitted in this way, the
process proved unsatisfactory for chassis because of the materials
involved. Most of the chassis in need of retrofit have a wax-based
petroleum coating designed to protect against general ``wear and
tear,'' harsh road dirt and debris, and exposure to extreme weather
conditions. Unfortunately, this coating has a serious unwanted side
effect--it prevents reflective tape from adhering for any significant
amount of time. Thus, reflective materials on chassis thought to have
been retrofitted began falling off within a few weeks after
application. An alternative retrofit method needed to be developed.
* * * * *
Eventually, a fastener was found that could penetrate steel without
compromising its integrity, and that did not require electrical or air
power, and could be applied outside a machine shop. The fastener, known
as the ``Hilti Fastener,'' utilizes a cold welding process to fasten
the reflector-mounted aluminum strips onto chassis. To date, the Hilti
Fastener is the fastest and most commonly-used method for lasting
chassis retrofit. However, the Hilti Fastener was not available for
general use until November of 1999, five months after the rule went
into effect.
The Petitioners believe that if the FMCSA does not grant an
extension of the June 1, 2001, deadline many of the non-compliant
intermodal equipment would have to be taken out of revenue service
until the vehicles could be retrofitted. A reduction in available
equipment on June 1, which coincides with the beginning of the peak-
shipping season, would adversely impact the flow of goods into and out
of the United States. There would be fewer chassis to handle an
increasing number of intermodal containers.
FMCSA's Basis for Suspending the Deadline for Container Chassis
The FMCSA has carefully reviewed the Petitioners' request and
believes that the technical problems associated with installing
conspicuity treatments on container chassis warrants a suspension of
the deadline as it applies to these particular CMVs. However, the
agency does not believe the petitioners have presented a compelling
argument for suspending the deadline for domestic intermodal trailers.
The agency accepts the Petitioners' prediction that as of June 1,
2001, approximately 237,000 container chassis and domestic intermodal
trailers would have been retrofitted. The agency also accepts their
estimate that there would be another 193,000 intermodal CMVs (181,000
container chassis and 12,000 domestic intermodal trailers) to retrofit.
The technical problems the owners had attaching the conspicuity
materials with adhesives appear to have played a major role in their
failure to complete the retrofitting of all their chassis by June 1,
2001. However, the safety benefits of conspicuity treatments are
significant and both the owners and operators should put forth much
more aggressive efforts to ensure that the retrofitting is completed as
soon as possible. A six-month extension should enable the owners to
complete the retrofitting of most, if not all, of the remaining
chassis, provided the task is handled with a greater sense of urgency
than has been demonstrated to date.
The FMCSA is concerned that the Petitioners failed to resolve
technical issues early on in the retrofitting process to ensure
compliance with the June 1, 2001, deadline and that the agency was not
notified of these problems until March 2001. The agency believes use of
the Hilti Fastener process should help to ensure that most of the
remaining container chassis are retrofitted by December 1, 2001.
The FMCSA understands the difficulties the owners of the container
chassis have locating these vehicles. Efforts should be taken to
improve the tracking of the chassis not only to comply with the
conspicuity retrofitting rule, but also to ensure appropriate
systematic inspection, repair, and maintenance of the chassis. It may
even be necessary to authorize other parties to install conspicuity
treatments on a reimbursable basis.
With regard to the Petitioners request to extend the deadline for
retrofitting of domestic intermodal trailers, the FMCSA does not
believe sufficient technical justification has been provided to support
the request. There is no indication that domestic intermodal trailers
differ significantly from typical van-type trailers in terms of the
surfaces on which the conspicuity treatments would be applied. While
some of the logistics issues raised by the Petitioner may apply equally
to container chassis and domestic intermodal trailer, the agency's
primary reason for granting the partial suspension of the deadline is
the unforeseen technical difficulty in retrofitting container chassis.
Given the relatively small number of domestic intermodal trailers that
would need to be retrofitted after June 1, 2001, the intermodal segment
of the transportation industry could effectively manage an expedited
program to retrofit those vehicles without a suspension of the
deadline.
The safety benefits of the retrofitting rule are such that the
agency must ensure that as many trailers as possible are retrofitted as
soon as possible. The entities that offer intermodal container chassis
and domestic intermodal trailers for transportation should use every
reasonable means available to comply with the rule.
The FMCSA reviewed the NHTSA's recent technical report, ``The
Effectiveness of Retroreflective Tape on Heavy Trailers,'' March 2001,
(DOT HS 809 222), to ensure that the agency's estimates of the safety
benefits of the retrofitting rule were appropriate. The NHTSA report
evaluates the effectiveness of retroreflective sheeting in enhancing
the visibility of heavy trailers and reducing the incidence of
passenger cars crashing into the sides and rear of trailers at
nighttime. The study is based on a statistical analysis of 10,959
accident cases investigated by the Florida Highway Patrol and the
Pennsylvania State Police from 1997 to 1999. The authors of the report
indicate that conspicuity treatments reduced side and rear impacts into
trailers in dark conditions (including ``dark-not-lighted,'' ``dark-
lighted,'' ``dawn,'' and ``dusk'') by 29 percent. In ``dark-not-
lighted'' conditions, the conspicuity treatments reduced side and rear
impact accidents by 41 percent. Conspicuity material reduced side and
rear impacts that resulted in fatalities or injuries to drivers of any
vehicle by 44 percent.
The FMCSA discussed the projected safety benefits of conspicuity
material that meets the NHTSA requirement for new trailers in the
preamble to the March 31, 1999, final rule requiring the retrofit of
trailers manufactured before
[[Page 30338]]
December 1, 1993. As reported there, NHTSA estimated that
retroreflective tape could lead to a 25 percent reduction in rear end
collisions and a 15 percent reduction in side impact collisions. From
data available at the time of the NHTSA's final rule implementing
conspicuity enhancements, tractor-trailer combinations were involved in
about 11,000 accidents per year in which they were struck in the side
or rear at night. Within this group of accidents, about 8,700 injuries
and about 540 fatalities occurred. The NHTSA indicated that the
conspicuity requirements, when fully implemented, were expected to
prevent, annually, 2,113 of these accidents. The NHTSA estimated 1,315
fewer injuries and about 80 fewer fatalities would occur.
The effectiveness study published in March 2001 indicates that when
all heavy trailers have conspicuity treatments, the material will
prevent approximately 7,800 accidents per year. Conspicuity treatments
will prevent about 3,100 to 5,000 injuries, and 191 to 350 fatalities
per year. Current information on the effectiveness of the conspicuity
material on new trailers therefore strongly suggests that the safety
benefits of retrofitting may be much greater than the agency estimated.
As such, the FMCSA has an obligation to ensure that all trailers
subject to its conspicuity retrofitting requirements, are equipped with
the required retroreflective sheeting or reflex reflectors.
The FMCSA will continue to work with its State partners to ensure
that motor carriers operating trailers, other than container chassis
(as defined in 49 CFR 393.5), comply with the conspicuity requirements
on and after June 1, 2001. The agency intends to ensure that motor
carriers operating container chassis comply on and after December 1,
2001.
Rulemaking Analysis and Notices
Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an
agency may waive the normal notice and comment requirements if it
finds, for good cause, that they are impracticable, unnecessary, or
contrary to the public interest.
In this case, notice and comment are impracticable. The final rule
suspends the deadline for compliance with 49 CFR 393.13 for motor
carriers operating intermodal container chassis until December 1, 2001.
Because the Petitioners waited until March 30, 2001, to submit their
request and supporting documentation, there was insufficient time for
the FMCSA to complete a notice and comment rulemaking in response to
the petition. Therefore, the FMCSA finds good cause under 5 U.S.C.
553(b) to make this amendment effective without prior notice or
opportunity for comment.
For the same reasons, the FMCSA finds, pursuant to 5 U.S.C.
553(d)(3), that there is good cause for making the final rule effective
upon issuance. Because the compliance date for the trailer conspicuity
retrofitting rule (49 CFR 393.13) is June 1, 2001, the final rule must
be effective on or before that date. The partial suspension of the
deadline for compliance will remain in effect until December 1, 2001.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or within
the meaning of Department of Transportation regulatory policies and
procedures. The final rule suspends the compliance date of Sec. 393.13
until December 1, 2001, for motor carriers operating intermodal
container chassis, while retaining the current compliance date for
retrofitting trailers manufactured before December 1, 1993. Although
the March 31, 1999, final rule establishing the current retrofitting
requirement was a significant regulatory action under section 3(f) of
Executive Order 12866, the Office of Management and Budget (OMB) does
not consider this partial suspension of the final rule as a significant
action.
Regulatory Flexibility Act
This action will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) because the original requirements did not
have a significant effect on a substantial number of small entities,
and this suspension does not change those requirements.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, and it has been determined
that this action does not have significant Federalism implications or
limit the policymaking discretion of the States. Nothing in this
document preempts any State law or regulation.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Unfunded Mandates Reform Act of 1995
This rule does not impose an unfunded Federal mandate, as defined
by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.)
that will 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.
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. This action has no
information collection requirements.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.)
and has determined that this action would not have any effect on the
quality of the environment.
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.
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 effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
List of Subjects in 49 CFR Part 393
Highway safety, Motor carriers, Motor vehicle safety, Reporting and
recordkeeping requirements.
[[Page 30339]]
For the reasons discussed in the preamble, the FMCSA amends title
49, Code of Federal Regulations, chapter III, part 393 as follows:
PART 393--[AMENDED]
1. The authority citation for part 393 is revised to read as
follows:
Authority: Sec. 1041(b) of Public Law 102-240, 105 Stat. 1914;
49 U.S.C. 31136 and 31502; 49 CFR 1.73.
2. Amend Sec. 393.13 to revise paragraph (a) to read as follows:
Sec. 393.13 Retroreflective sheeting and reflex reflectors,
requirements for semitrailers and trailers manufactured before December
1, 1993.
(a) Applicability. All trailers and semitrailers manufactured prior
to December 1, 1993, which have an overall width of 2,032 mm (80
inches) or more and a gross vehicle weight rating of 4,536 kg (10,001
pounds) or more, except trailers that are manufactured exclusively for
use as offices or dwellings, pole trailers (as defined in Sec. 390.5 of
this subchapter), and trailers transported in a driveaway-towaway
operation, must be equipped with retroreflective sheeting or an array
of reflex reflectors that meet the requirements of this section. Motor
carriers operating trailers, other than container chassis (as defined
in Sec. 393.5), have until June 1, 2001, to comply with the
requirements of this section. Motor carriers operating container
chassis have until December 1, 2001, to comply with the requirements of
this section.
* * * * *
Issued on: June 1, 2001.
Stephen E. Barber,
Acting Deputy Administrator.
[FR Doc. 01-14287 Filed 6-1-01; 8:45 am]
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