[Federal Register Volume 62, Number 67 (Tuesday, April 8, 1997)]
[Rules and Regulations]
[Pages 16709-16717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8521]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. 80-9; Notice 13]
RIN 2127-AF59


Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices 
and Associated Equipment

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Response to petitions for reconsideration; final rule.

-----------------------------------------------------------------------

SUMMARY: This document responds to petitions for reconsideration of a 
final rule requiring that the rear of truck tractors be equipped with 
retroreflective material similar to that required on the rear of the 
trailers they tow to increase nighttime conspicuity.

DATES: The effective date for the final rule, as amended by this 
document, is July 1, 1997. Petitions for reconsideration of the rule 
must be received not later than 45 days after the rule is published in 
the Federal Register. Petitions filed after that time will be 
considered petitions for rulemaking pursuant to 49 CFR part 552.

ADDRESSES: Petitions for reconsideration of the amendments to the final 
rule should refer to the docket number and notice number, and be 
submitted to: Administrator, NHTSA, 400 Seventh Street, SW, Washington, 
DC 20590.

FOR FURTHER INFORMATION CONTACT: For Technical Issues: Patrick Boyd, 
Office of Safety Performance Standards, NPS-31, telephone (202) 366-
6346, FAX (202) 366-4329. For Legal Issues: Taylor Vinson, Office of 
Chief Counsel, NCC-20, telephone (202) 366-2992, FAX (202) 366-3820.

SUPPLEMENTARY INFORMATION:

Background

    On August 8, 1996, NHTSA published a final rule amending Federal 
Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and 
Associated Equipment to amend paragraph S5.7 Conspicuity Systems. (61 
FR 41355). Effective July 1, 1997, the rule requires truck tractors to 
be equipped with a conspicuity treatment (either retroreflective tape 
or reflex reflectors) to enhance their detectability at night or under 
other conditions of reduced visibility.

The Final Rule

    In view of the relatively short length of truck tractors and the 
fact that they are equipped with a full complement of lamps at the 
front, NHTSA adopted a conspicuity treatment for the rear only. The 
conspicuity treatment uses the same retroreflective sheeting or reflex 
reflectors certified for use on trailers (the term ``retroreflective 
material'' is used in this document to include both sheeting and reflex 
reflectors).
    As with large trailers, two strips of white material 300 mm in 
length are to be applied horizontally and vertically to the right and 
left upper rear contours of the body (as shown in Figure 31), as close 
to the top of the body and as far apart as practicable. Relocation of 
the material is allowed to avoid obscuration by vehicle equipment when 
viewed from directly behind. If relocation is required for one side of 
the rear but not the other, the manufacturer is permitted to relocate 
the other strips to achieve a symmetrical effect. The final rule also 
permits the upper material to be obscured up to 25 percent when viewed 
directly from behind (the rear orthogonal view).
    To indicate the overall width of the truck tractor, two strips of 
retroreflective material, 600 mm in length, of alternating colors of 
red and white, must be mounted on the rear, as horizontal as 
practicable and as far apart as practicable. This material may be 
applied to the rear fenders, if the tractor is so equipped, or to the 
mudflaps or mudflap support brackets. However, if the strips are 
located on the mudflaps, they must be placed not lower than 300 mm 
below the mudflap support bracket to avoid excessive movement. Since 
the tire diameter, and consequently the distance from the mudflap 
support to the road surface, is nominally 1 meter, the reflective 
strips can be expected to be about 700 mm above the road surface.
    Under the final rule, manufacturers of truck tractors have the 
option of using

[[Page 16710]]

an array of reflex reflectors on the rear instead of retroreflective 
sheeting, the same option that is available to trailer manufacturers. 
However, reflex reflectors continue to be required by Table I of 
Standard No. 108, in addition to the conspicuity material, whether 
sheeting or reflectors. The agency did not amend paragraphs S5.1.1.1 
and S5.1.1.2 of Standard No. 108 which excuse truck tractors from the 
full complement of rear lighting equipment required of trucks.
    Petitions for reconsideration of the final rule were received from 
American Trucking Associations (ATA), and Truck Manufacturers 
Association (TMA).

(1) Truck Tractors Without Mudflaps

    TMA and ATA contend that many truck tractors used to haul auto 
transporters, tank trailers, or trailers hauling construction 
equipment, are used as ``married pairs'' and always operate with the 
same trailer. In a married pair configuration, the mudflaps for the 
truck tractor drive axle could be mounted on the trailer. The 
petitioners state that these truck tractors would never be fitted with 
mudflaps, and consequently, there would be no location for installing 
the conspicuity material. They further state that the movement of the 
trailer in turns would cause interference between trailer-mounted 
mudflaps and any brackets mounted on the rear of the truck tractor to 
hold conspicuity material. ATA also points out that many states do not 
require mudflaps on truck tractors.
    The 1996 edition of the Official Trucking Safety Guide, published 
by J.J. Keller & Associates, identifies 15 states and the District of 
Columbia as having no mudflap requirement for any truck and identifies 
six other states that exempt truck tractors. The publication also 
reports that Michigan exempts truck tractors from mudflap requirements 
if they are operated at no more than 25 mph without a trailer. However, 
it is incorrect to conclude from these statistics that a large 
proportion of truck tractors do not use mudflaps. The need to travel 
across the 29 states requiring mudflaps on tractors and the possible 
liability from not protecting vehicles behind from stone damage and 
spray are apparently sufficient reason for most truck tractor owners to 
use mudflaps regardless of local state law.
    Delaware, Maryland, the District of Columbia, Virginia, West 
Virginia, North Carolina and South Carolina form a large contiguous 
region having no requirements for mudflaps on truck tractors. 
Nevertheless, the overwhelming majority of truck tractors observed by 
this agency in Virginia were equipped with mudflaps. Of the 1109 
tractors observed on Interstate 95 in Virginia, 1003 had mudflaps and 
only 106 did not. Many of the tank trailers were equipped with 
mudflaps, consistent with the ``married pair'' combination described by 
the petitioners. However, of 49 tank trailers observed with forward 
mounted mudflaps, 37 were being towed by tractors which also had 
mudflaps, casting doubt on the generality of the petitioners' assertion 
that there is insufficient room between the trailer mounted mudflaps 
and the tractor tires for reflector brackets.
    For regulatory purposes, it is not possible to distinguish a truck 
tractor that will be used in a married pair from other truck tractors. 
Likewise, the operators of fleets of trucks and trailers usually 
configured as married pairs cannot assure that breakdowns and other 
circumstances will not result in occasional travel of their truck 
tractors without trailers. Finally, the sale of the truck tractor to 
the second owner is unlikely to include the sale of the specialized 
trailer to which it was paired. Therefore, the conspicuity requirements 
should include provisions permitting alternative compliance of the 
minority of truck tractors that lack the favorable mounting locations 
of mudflap brackets and mudflaps.
    The NPRM (60 FR 30820) originally proposing truck tractor 
conspicuity included the additional alternative of attaching the red/
white retroreflective material to the back of the cab rather than to 
the mudflap brackets. The alternative was not included in the final 
rule because of opposition by ATA and TMA. ATA was opposed to material 
not located at the extreme rear of the cab, and TMA was concerned about 
interference with equipment. Clearly, the best attachment points for 
conspicuity material are the mudflap brackets which are part of most 
truck tractors. However, even material located forward of the usual 
mudflap location can accurately indicate the width of the truck 
tractor, mitigating difficulties in judging closing speed by drivers 
approaching the narrowly spaced tail lamps of truck tractors, which 
lack the clearance and identification lamps of other trucks. 
Retroreflective material attached to the back of the cab, to brackets 
supported by the cab, or to the frame ahead of the rear axle may be the 
only possible locations for conspicuity material for a small portion of 
truck tractors if the petitioners are correct about possible trailer 
interference problems. However, it appears likely that most tractors in 
married pairs, and certainly others that simply lack mudflaps, could 
support conspicuity material with brackets behind the rear axle that 
need not be as strong as those designed for mudflap loads.
    A general solution for the approximately 10 percent of tractors 
that may not be equipped with mudflaps is to replace the 2-inch wide 
sheeting material mounted on an aluminum backing plate (assumed in the 
regulatory cost estimate of the final rule) with reflex reflectors 
mounted on a simple 1-inch wide bent steel bracket located behind the 
rear axle. The reflex reflectors are equivalent in cost to the sheeting 
material, but the steel brackets would cost more than the aluminum 
backing plates. While the final rule estimated the cost to a consumer 
of a pair of backing plates at $3.35, the estimated cost of a pair of 
reflector brackets is $5.39. If 10 percent of tractors required the 
more expensive brackets, the average consumer cost of the tractor 
conspicuity treatment would rise from $17.17 to $17.37.
    However, the original treatment cost estimate was conservative in 
that it assumed that every tractor would need a pair of aluminum 
backing plates to adapt the reflective material to the mudflap 
brackets. NHTSA has observed that some common styles of mudflap 
brackets have surfaces to which conspicuity material could be attached 
directly without the need for extra backing plates. Assuming that only 
6 percent of tractors were to use those types of brackets, the original 
estimate would still be the same as the average cost of a tractor 
conspicuity treatment. It is likely that the convenience of mounting 
conspicuity material directly on the mudflap bracket will increase the 
popularity of compatible styles of mudflap brackets and reduce the 
average cost of the conspicuity treatment. However, as discussed later, 
the cost effectiveness of the rule does not depend on minor factors 
because the conspicuity costs have been weighed favorably against mere 
property damage prevention without the need to assign economic benefit 
to the principal goal of preventing injury and death.
    NHTSA is therefore adopting the alternative it originally proposed 
(for the red/white horizontal element of the conspicuity system) of 
cab-mounted material and adding the additional alternatives of material 
mounted ahead of or behind the rear axle on separate brackets. Since 
the agency agreed with commenters to the NPRM that material ahead of 
the rear axle is not as desirable as material behind the rear axle, the 
alternative locations ahead of the axle

[[Page 16711]]

will be limited to truck tractors which lack mudflaps. As permitted for 
upper material mounted on the back of the cab, the amendments permit 
the obscuration of up to 25 percent of lower material mounted on the 
back of the cab so that insignificant obstructions such as braces and 
hoses may be accommodated.

(2) Obscuration of Upper Rear Cab Material

    TMA commented that the aftermarket installation of additional 
equipment such as header boards, add-on sleeper compartments, cranes 
and winches could partially or completely obscure the conspicuity 
treatment on the back of the cab provided by the truck tractor 
manufacturer. The need to apply auxiliary conspicuity material to 
equipment obscuring the original material would increase the cost of 
such modifications by the cost of the additional conspicuity material. 
TMA considers the potential burden unreasonable. The solution it 
suggests is that truck manufacturers not install the conspicuity 
material but rather furnish a small roll of reflective tape or some 
loose reflex reflectors with a new tractor. Presumably, no tractors 
would have factory-installed conspicuity material since TMA points out 
that manufacturers would not know prior to sale and delivery which 
tractors were to be modified.
    Manufacturers certify compliance with Federal motor vehicle safety 
standards on the basis of equipment they install on the vehicle at the 
time of manufacture, not on the basis of equipment that a purchaser may 
or may not install after buying the vehicle. Thus, NHTSA sees no way 
that it can favorably consider TMA's comment. The potential burden is 
the use of 4 feet of reflective tape or four reflector bars with a 
retail value of about two or three dollars in the modification of a 
minority of vehicles in a class with a unit cost on the order of one 
hundred thousand dollars. The burden is much less than in the analogous 
case discussed in the final rule notice of the installation of caps on 
ordinary pick-up trucks. When the installation of a cap obscures the 
center high mounted stop lamp of a pick-up truck, the installer must 
provide an auxiliary stop lamp, which is much more burdensome than 
reflective tape, on the cap.
    TMA's suggestion would also deprive the owners of unmodified trucks 
of their reasonable expectation that factory installed equipment is 
present, in compliance with Federal safety standards, as the vehicle's 
certification label states. Also, header boards and other equipment 
related to special trailers and cargos are likely to be removed before 
the sale of a tractor to a second owner who will benefit from factory-
installed conspicuity material. Finally, the manufacturer is permitted 
to attach the material with screws or other means rather than adhesives 
to permit its installation on added header boards or sleeper 
compartments. The final rule already requires that approach when 
material is furnished on temporary mudflap brackets because there is a 
certainty of the purchaser's need to relocate the material.
    ATA takes the obscuration objection further with its claim that 
obscuration of conspicuity material ``will make it impossible for the 
motor carrier industry to effectively utilize such equipment as tractor 
mounted cranes and winches.'' It also was concerned that ``the many 
differing mounting patterns, which manufacturers will have to use to 
meet the rule, will make it impossible for an inspector of in-service 
trucks to know whether a specific cab rear incorporates the same 
reflective material motif it had when it left the factory.'' It 
furnished photographs of a tractor with a header board and winch and of 
a tractor with a large cargo handling crane to illustrate its point.
    ATA's concerns are unfounded. There is no requirement that 
auxiliary reflective material mounted on equipment which obscures OEM 
material be placed in exactly the same locations. The requirement is 
that the pairs of horizontal and vertical reflective strips be placed 
``as horizontally and vertically as practicable'' and ``as close to the 
top of the body and as far apart as practicable.'' Although this is 
intended for marking the upper outer edges of the body, it gives the 
installer the discretion to use common sense to place the material in 
best available locations. It provides for the possibility that the 
practicable locations and orientation of the upper conspicuity material 
could be different depending on the equipment on or behind the cab. The 
inspectors of trucks in service are familiar with the provision for 
practicability in the placement of conspicuity material. Trailers have 
been inspected for conspicuity material under the same practicability 
provision for three years with little difficulty. Tankers, bulk 
material trailers and trailers with onboard grain handling equipment 
provide routine examples of practicability considerations.
    ATA's photograph of a tractor with a large crane between the cab 
and the fifth wheel shows an unusual vehicle designed for unloading 
poles from its trailer. It is an extreme example of the influence of 
equipment on practicable locations for conspicuity material. A 
practicable location for the upper left material would be on the crane 
structure with the crane arm situated in the traveling position. The 
pieces of material could be at about cab height and angled less acutely 
than 90 degrees to one another. The material on the right side could be 
placed partly on the crane and partly on the cab or entirely on the cab 
at a lower height. In the other example, the winch would not appear to 
obscure locations where OEM material would be placed, but the header 
board would. The obvious location for conspicuity material would be 
corners of the header board. The utility even of unusual vehicles is 
not threatened by the rule.

(3) Need For More Research

    ATA's petition asks that the effective date of July 1, 1997, be 
suspended for three years and that the agency perform research during 
that time to justify the need for the rule and to modify its 
requirements. It noted that ``most bob-tail tractor accidents take 
place during the day'' in support of its assertion that more research 
is needed, and it faulted the agency for lack of research on options 
for installing conspicuity material. ATA favors a requirement of 
reflective area alone, leaving the placement of this material entirely 
up to the manufacturer and consumer.
    ATA is correct that only one third of the crashes in which a truck 
tractor is struck in the rear occur at night, but these crashes involve 
60 percent of the fatalities and 41 percent of the injuries. This 
demonstrates that the night accidents are generally more serious. The 
agency considers the research on reflective conspicuity for trailers, 
which have a similar proportion of fatal collisions at night, as a 
sufficient basis for the tractor conspicuity rule. In fact, estimates 
of the safety effect of adding conspicuity material to tractors based 
on trailer research would be expected to be conservative because the 
required rear lighting of tractors is much inferior to that of trailers 
before the addition of the conspicuity material.
    The agency disagrees with ATA's view that the position of the 
material is unimportant. The placement of conspicuity material 
according to the final rule addresses the particular deficiencies of 
the rear lighting of truck tractors and also replicates the reflective 
pattern of rear of trailers, now familiar to motorists. The rear 
lighting of truck tractors does not indicate either the width or the 
height of the vehicle as required for other trucks. Material at the

[[Page 16712]]

top of the mudflaps marks the tractor width at the rearmost position. 
The location was specifically recommended by most commenters, and no 
commenter suggested that any other position would be superior from the 
standpoint of safety. The amended final rule also permits all 
equivalent locations for material to mark the width of tractors in the 
small minority without mudflaps. The purpose of the other material is 
to mark the upper outer corners of the rear cab to complete a 
reasonable two dimensional image, but the placement on a particular 
vehicle is dictated by practicability rather than by rigid 
specification. There is no reasonable likelihood that the arrangement 
of reflective material in other patterns would be superior in improving 
safety or practicability, and a conspicuity requirement based only on 
the amount of material fails to address the distinctive aspects of 
truck tractor rear lighting. The agency finds no need for further 
research or a delay in the effective date of the rule. Therefore, ATA's 
petition for reconsideration is denied.

(4) Objections Regarding Costs and Benefits

    ATA claims that the additional upper conspicuity material required 
when tractors are modified with added equipment such as header boards, 
material handling cranes, auto-hauling equipment and non-OEM sleeper 
compartments make the annual cost of the rule ``far higher'' than the 
estimated $3 million OEM customer cost. It also faulted the agency for 
having no evaluation of the practicability of installing conspicuity 
material on add-on equipment.
    Standard No. 108 requires that the material in question be 
installed as close as practicable to the upper outer corners of the 
cab. Header boards and sleeper compartments tend to offer obvious 
favorable surfaces, and even the material handling crane, which seems 
to be a worst-case example, has usable surfaces. While it is doubtful 
that auto-hauling equipment offers serious impediments to the 
application of reflective material, it may be a moot point. Structures 
attached to the truck to support autos as cargo would disqualify it 
from classification as a tractor (defined in 49 CFR 571.3 as a truck 
constructed to carry only loads imposed by trailers), and it would be 
required to have the full complement of truck lighting rather than 
conspicuity material.
    The cost of maintaining safety equipment during the modification of 
a vehicle is not routinely considered in cost effectiveness estimates 
of Federal standards requiring safety features as original equipment. 
However, the agency does not believe that the cost of adding $2 to $3 
worth of reflective tape or adhesive backed reflectors to aftermarket 
header boards or sleeper compartments will result in a ``far higher'' 
cost. Neither petitioner informed the agency of the likely numbers of 
vehicles with add-on equipment blocking the original upper conspicuity 
material. The agency's observations suggest that possibly ten percent 
of tractors would be equipped with header boards or add-on sleepers and 
that the number of tractors with equipment like cranes is negligible. 
Based on an annual production of 170,000 tractors, the total additional 
conspicuity cost incurred in the modification of 10 percent of them 
would be about $50,000. The amount is insignificant compared with the 
estimated $2,919,000 consumer cost for original equipment conspicuity 
installation.
    ATA states that peripheral costs such as extra conspicuity tape on 
added equipment will make the rule not cost effective, because the most 
highly discounted estimate of property damage savings in the regulatory 
analysis was $3,176,000 which is only slightly in excess of the 
consumer cost of $2,919,000. It disputes the value of potential life 
saving with the observation that the final rule preamble's statement 
that ``if fatalities involving rear collisions of truck tractors can be 
reduced by 15 to 25 percent annually, there will be 4 to 7 fewer deaths 
attributable to this type of accident'' has no more meaning than a 
declaration that if fatalities could be reduced by 100 percent, there 
would be 28 fewer fatalities.
    The tractor conspicuity rule is very cost effective because its 
cost is met or exceeded by property damage saving alone. The prevention 
of deaths and injuries is obtained at no additional cost. It is much 
more favorable than most safety regulations which require a societal 
expenditure per life saved. The gross property damage savings over the 
life of vehicles produced in a single year was estimated at $4,849,000, 
and it was discounted to a present value of $4,399,000 to $3,176,000 
for a range of discount rates from two percent to 10 percent. ATA cited 
the present value of the property damage benefits computed at a 10 
percent discount rate ($3,176,000), but the present value of those 
benefits would be greater computed at a discount rate more consistent 
with current interest rates. For example, at a four percent discount 
rate, the present value of the property damage benefits would exceed 
$4,000,000.
    However, the purpose of the rule is the prevention of deaths and 
injuries. The effect of conspicuity, as predicted by a fleet study of 
trailers, was a reduction of certain types of collisions by 15 to 25 
percent and a substantial mitigation of many others. The truck fleets 
cooperating in the study insisted on the confidentiality of all records 
pertaining to deaths and injuries. Therefore, the effectiveness could 
be determined only in terms of collision prevention and property damage 
mitigation. The statement which elicited ATA's comment expressed an 
expectation of death and injury prevention consistent with collision 
prevention without the additional consideration of further benefit 
occurring in collisions of mitigated severity. This is a conservative 
expectation, particularly in view of reports by trucking companies of 
substantial reductions in fatal crashes following the use of 
conspicuity treatments of trailers (Traffic Safety, Vol. 95, No. 5, 
Sept/Oct 1995).

(5) Clarifications of Regulatory Language and Illustrations

    The agency grants TMA's petition for reconsideration regarding 
certain clarifications to the final rule. These are discussed below.
(a) Conspicuity Material on Glazing
    TMA points out that the preamble to the final rule, in discussing 
the upper cab contour marking, states that, ``* * * the material may be 
attached to the edge of the window itself if the window is so large as 
to occupy all the practicable space for an upper treatment.'' The final 
rule amending S5.3.1 established the potential for mounting conspicuity 
treatment on glazing and non-rigid surfaces. It states that ``Except as 
provided in * * * S5.7 * * * each lamp, reflective device, and item of 
associated equipment shall be securely mounted on a rigid part of the 
vehicle other than glazing that is not designed to be removed, * * *'' 
The final rule, however, never included the glazing exemption noted in 
the preamble. To rectify this oversight, TMA recommends that the 
following be added to the end of S5.7.1.4.3(b): ``If the rear window is 
so large as to occupy all the practicable space, the material may be 
attached to the edge of the window itself.''
    ATA opposed the use of conspicuity material on the edge of the rear 
window citing the existence of state laws limiting the location and 
size of objects affixed to windows and suggesting that

[[Page 16713]]

the material would contribute to crashes.
    This notice amends paragraph S5.7.1.4.3(b) in response to the TMA 
comment. The agency is not aware of any State regulations which would 
prohibit the application of conspicuity material to the rear windows of 
truck tractors. Because Standard No. 108 expressly permits conspicuity 
material to be applied to the rear windows of truck tractors if the 
rear window is so large as to occupy all the practicable space where it 
may otherwise be placed on the rear of the cab, any State regulation 
prohibiting would be preempted. Since tractors do not have inside rear 
view mirrors, the rear windows are of little use in driving. The agency 
anticipates that material would be placed only on very large windows 
that consume all other potential locations and continue to provide 
adequate direct visibility for docking with material (which may be as 
narrow as 1 inch with reflex reflectors) on the edge. It is likely that 
manufacturers will consider windows as a placement of last resort 
because of aesthetic considerations. However, they would be expected to 
use the windows before concluding that there were no practicable 
locations except those below the window and very far from the top of 
the cab. It should be noted, though, that a manufacturer using the edge 
of the window would be correct in determining that the practicable 
placements can depart from strict horizontal and vertical orientations 
if necessary to follow the window edge with the least intrusion on the 
viewing area.
(b) Discontinuous Surfaces
    TMA points out that in S7.1.4 the agency has described 
discontinuous surfaces typical of trailers, but has not done so for 
truck tractors. This could be confused by inspectors in the field as 
meaning the exception does not apply to truck tractors. TMA therefore 
recommended that NHTSA add truck tractor specific examples to those 
already cited for trailers. Specifically, it asked that paragraph 
S5.7.1.4 be revised to allow the following:
    ``S5.7.1.4 Location. (a) Retroreflective sheeting * * * to 
discontinuous surfaces such as * * * lamp bodies on trailers and body 
joints, stiffening beads, drip rails, and rolled surfaces on truck 
tractors''.
    The obvious good installation practices of cutting material to 
avoid obstructions and steps in the body and of the avoidance of curved 
surfaces which would inhibit the reflective properties of the material 
apply equally to trailers and truck tractors, and NHTSA is pleased to 
make the clarification requested.
(c) Location of Conspicuity Material on Mudflaps
    Paragraph S5.7.1.4.3(a), Rear of Truck Tractors, states ``* * * 
Strips on mudflaps shall be mounted not lower than 300 mm below the 
lower edge of the mudflap support bracket.'' (emphasis supplied). 
According to TMA, the agency never defined what constitutes the ``lower 
edge.'' Further, the preamble states that ``* * * The rule allows it to 
be applied as low as 300 mm below the top of the mudflap,'' which 
appears to be in conflict with what is stated in the final rule. TMA 
recommends that the agency clear up this potential area of confusion by 
specifying in S5.7.1.4.3 (a) that ``Strips on mudflaps should be 
located within 300 mm of the lower horizontal edge of the mudflap 
bracket.'' Because of the variations in mudflap support brackets, a 
separate figure is recommended to fully define the lower horizontal 
edge.
    The apparent conflict pointed out by TMA is not the only reason to 
revise the language regarding reflective material on mudflaps. It was 
not wise to use the mudflap bracket as a reference position. The fact 
that some brackets are bent down at the outer edge makes the ``lower 
edge of the bracket'' an ambiguous term. Also, manufacturers of 
mudflaps who may want to apply conspicuity material do not necessarily 
know the exact shape of the brackets their customers may use. Simply 
referencing the position of the conspicuity material to the horizontal 
upper edge of the mudflap itself removes the ambiguity to all parties 
without the need for more figures added to Standard No. 108. The 
relevant sentence in S5.7.1.4.3 (a) is revised to ``* * * Strips on 
mudflaps shall be mounted not lower than 300 mm below the upper 
horizontal edge of the mudflap.''
(d) Additional Figures
    TMA is concerned about the ``overwhelming challenge'' that federal 
and state inspectors will face in determining compliance because of the 
extremely wide range of possible treatments/locations that will fully 
meet the requirements of the rule. To minimize the potential problems, 
it recommended that the agency add several additional figures to 
Standard No. 108 as NHTSA did in the case of trailers. The current line 
drawing shows a relatively uncluttered example of the back of a truck 
tractor. It argued that additional examples are needed: ``For example, 
Figure 30-1 Trailer Conspicuity example, illustrates the `broken 
inverted L' treatment for a door hinge. Since NHTSA states in the 
preamble that the same would apply to truck tractors, it would be 
appropriate to have an illustration of the rear of a truck tractor, 
perhaps with and without an aerodynamic roof fairing, to show that the 
`broken inverted L' applies also to truck tractors.'' It also 
recommended that a figure be added ``to show the 300 mm white/300 mm 
red as well as a 150 mm white/300 mm red/150 mm white treatment on 
mudflap brackets/mudflaps.''
    Figure 31 is being revised based on line drawings of fully equipped 
tractors supplied by TMA. The agency believes a single drawing with 
insets is sufficient to illustrate the range of issues in the TMA 
petition. A truck with a roof fairing was chosen to clarify that the 
addition of a roof fairing does not change the cab contour contemplated 
by the standard. However, the fairing attachment brackets on the 
illustrated vehicle cause practicability problems for the simple white 
``inverted L'' upper pattern and create the need for the ``broken 
inverted L'' pattern that TMA requested in an example. The example also 
shows that the material has been placed to avoid a drip rail and a 
rolled surface above the horizontal strips, and a small permitted 
obstruction is shown behind the left vertical strip. Red/white material 
on a mounting plate attached to a mudflap bracket is shown in several 
variations. Treatments with both two color segments and three color 
segments are illustrated with straight mudflap brackets, and a typical 
OEM installation of an angled mudflap bracket is illustrated.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    In asking that the final rule be delayed 36 months, ATA commented 
that the final rule ``will have a significant impact on equipment and 
trucking operations which are being safely used today'', and that it 
``is likely to make it impossible to use such things as tractor mounted 
winches and cranes.'' In view of this, ATA did not see how the 
following articles in Executive Order 12866 can be considered to be 
met:
    (5) When an agency determines that a regulation is the best 
available method of achieving the regulatory objective, it shall design 
its regulations in the most cost-effective manner to achieve the 
regulatory objective. In doing so, each agency shall consider 
incentives for innovation, consistency, predictability,

[[Page 16714]]

the costs of enforcement and compliance (to the government, regulated 
entities, and the public), flexibility, distributive impacts, and 
equity.
    Comment: As noted in the final rule, NHTSA has not reviewed this 
rulemaking action under E.O. 12866, but it considers that the actions 
it has taken are consistent with the Executive Order. Further, ATA's 
comments lack specificity. The agency believes that it has adopted the 
most cost effective manner (retroreflective tape rather than a system 
of marker lamps) to address the safety problem.
    (6) Each agency shall assess both the costs and the benefits of the 
intended regulation and, recognizing that some costs and benefits are 
difficult to quantify, propose or adopt a regulation only upon a 
reasoned determination that the benefits of the intended regulation 
justify its costs.
    Comment: The agency has done so.
    (7) Each agency shall base its decisions on the best reasonably 
obtainable scientific, technical, economic, and other information 
concerning the need for, and consequences of, the intended regulation.
    Comment: The agency has done so.
    (8) Each agency shall identify and assess alternative forms of 
regulation and shall, to the extent feasible, specify performance 
objectives, rather than specifying the behavior or manner of compliance 
that regulated entities must adopt.
    Comment: The agency has specified performance objectives, to be met 
through the use of retroreflective tape or reflectors, in a pattern 
intended to provide immediate recognition to observers of a large truck 
tractor.
    (11) The agency shall tailor its regulations to impose the least 
burden on society, including individuals, businesses of differing 
sizes, and other entities (including small communities and governmental 
entities), consistent with obtaining the regulatory objectives, taking 
into account, among other things, and to the extent practicable, the 
costs of cumulative regulations.
    Comment: The agency has done so by adopting a regulation whose cost 
of compliance on a per vehicle basis is minimal, involving the 
installation of retroreflective tape or reflectors.
    ATA justifies its request for a delay ``while it completes the 
research necessary to both define the problem and show proven solutions 
which do not eliminate certain safe and reasonable equipment and 
operations.'' ATA's request is denied. The agency has adequately 
identified the problem and provided for its solution, without 
eliminating ``certain safe and reasonable equipment and operations.''
    This action has not been reviewed under Executive Order 12866. It 
has been determined that the rulemaking action is not significant under 
Department of Transportation regulatory policies and procedures. 
Implementation of the rule would not have a yearly cost impact that 
exceeds $2,919,000 in the aggregate. The agency has prepared a final 
regulatory evaluation dated July 1996, which has been placed in the 
docket.

National Environmental Policy Act

    NHTSA has analyzed this rulemaking action for the purposes of the 
National Environmental Policy Act. It is not anticipated that the final 
rule will have a significant effect upon the environment. Compliance 
would require the application of not more than 8 feet of 
retroreflective tape to the rear of a truck tractor (1,360,000 feet for 
an estimated year's production of 170,000 truck tractors), 
retroreflective material is currently in use with no known negative 
environmental effects.

Regulatory Flexibility Act

    The agency has also considered the impacts of this rulemaking 
action in relation to the Regulatory Flexibility Act. I certify that 
this rulemaking action will not have a significant economic impact upon 
a substantial number of small entities. Accordingly, no regulatory 
flexibility analysis has been prepared. Manufacturers of truck 
tractors, those affected by the rulemaking action, are generally not 
small businesses within the meaning of the Regulatory Flexibility Act. 
Further, small organizations and governmental jurisdictions will not be 
significantly affected because the price of new truck tractors will be 
only minimally increased. An increase in cost of about $17 per vehicle 
is expected to be more than offset by savings in repair to it over its 
life.

Executive Order 12612 (Federalism)

    This rulemaking action has also been analyzed in accordance with 
the principles and criteria contained in Executive Order 12612, and 
NHTSA has determined that this rulemaking action does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Civil Justice

    The final rule will not have any retroactive effect. Under 49 
U.S.C. 30103, whenever a Federal motor vehicle safety standard is in 
effect, a state may not adopt or maintain a safety standard applicable 
to the same aspect of performance which is not identical to the Federal 
standard. See discussion under paragraph 5a of this notice regarding 
Federal preemption allowing use of conspicuity material applied to 
truck tractor rear windows. Sec. 30103 sets forth a procedure for 
judicial review of final rules establishing, amending or revoking 
Federal motor vehicle safety standards. That section does not require 
submission of a petition for reconsideration or other administrative 
proceedings before parties may file suit in court.

List of Subjects in 49 CFR Part 571

    Imports, Motor vehicle safety, Motor vehicles.

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

    In consideration of the foregoing, 49 CFR part 571 is amended as 
follows:
    1. The authority citation for part 571 continues to read as 
follows:

    Authority: 49 U.S.C. 322, 30111, 30115, 30162; delegation of 
authority at 49 CFR 1.50.


Sec. 571.108  [Amended]

    2. Section 571.108 is amended by revising paragraphs S5.7.1.4(a), 
and S5.7.1.4.3 (a) and (b) and Figure 31 added at 61 FR 41360, Aug. 8, 
1996, effective 7-1-97, to read as follows:


Sec. 571.108  Motor Vehicle Safety Standard No. 108 Lamps, Reflective 
Devices, and Associated Equipment.

* * * * *
    S5.7.1.4 Location. (a) Retroreflective sheeting shall be applied to 
each trailer and truck tractor as specified below, but need not be 
applied to discontinuous surfaces such as outside ribs, stake post 
pickets on platform trailers, and external protruding beams, or to 
items of equipment such as door hinges and lamp bodies on trailers and 
body joints, stiffening beads, drip rails and rolled surfaces on truck 
tractors.
* * * * *
    S5.7.1.4.3 Rear of truck tractors. Retroreflective sheeting shall 
be applied to the rear of each truck tractor as follows:
    (a) Element 1: Two strips of sheeting in alternating colors, each 
not less than 600 mm long, located as close as practicable to the edges 
of the rear fenders, mudflaps, or the mudflap support brackets, to mark 
the width of the truck tractor. The strips shall be mounted as 
horizontal as practicable, in a vertical plane facing the rear, on the 
rear fenders, on the mudflap support brackets, on plates attached to 
the mudflap support brackets, or on the

[[Page 16715]]

mudflaps. Strips on mudflaps shall be mounted not lower than 300 mm 
below the upper horizontal edge of the mudflap. If the vehicle is 
certified with temporary mudflap support brackets, the strips shall be 
mounted on the mudflaps or on plates transferable to permanent mudflap 
support brackets. For a truck tractor without mudflaps, the strips may 
be mounted outboard of the frame on brackets behind the rear axle or on 
brackets ahead of the rear axle and above the top of the tires at 
unladen vehicle height, or they may be mounted directly or indirectly 
to the back of the cab as close to the outer edges as practicable, 
above the top of the tires, and not more than 1525 mm above the road 
surface at unladen vehicle height. If the strips are mounted on the 
back of the cab, no more than 25 percent of their cumulative area may 
be obscured by vehicle equipment as determined in a rear orthogonal 
view.
    (b) Element 2: Two pairs of white strips of sheeting, each pair 
consisting of strips 300 mm long, applied as horizontally and 
vertically as practicable, to the right and left upper contours of the 
cab, as close to the top of the cab and as far apart as practicable. No 
more than 25 percent of their cumulative area may be obscured by 
vehicle equipment as determined in a rear orthogonal view. If one pair 
must be relocated to avoid obscuration by vehicle equipment, the other 
pair may be relocated in order to be mounted symmetrically. If the rear 
window is so large as to occupy all the practicable space, the material 
may be attached to the edge of the window itself.
* * * * *
BILLING CODE 4910-59-P

[[Page 16716]]

[GRAPHIC] [TIFF OMITTED] TR08AP97.019



[[Page 16717]]

    Issued on March 27, 1997.
Ricardo Martinez,
Administrator.
[FR Doc. 97-8521 Filed 4-7-97; 8:45 am]
BILLING CODE 4910-59-C