[Federal Register Volume 62, Number 115 (Monday, June 16, 1997)]
[Proposed Rules]
[Pages 32562-32564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15746]



National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. 95-56, Notice 02]
RIN 2127-AF77

Federal Motor Vehicle Safety Standards; Warning Devices

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Termination of rulemaking.


SUMMARY: In this document, NHTSA terminates rulemaking to rescind the 
Federal Motor Vehicle Safety Standard on triangular warning devices 
intended to be placed on the roadway behind disabled buses and trucks 
that have a gross vehicle weight rating (GVWR) greater than 10,000 lbs. 
Terminating this rulemaking relieves the Federal Highway Administration 
(FHWA) of the necessity for conducting a rulemaking proceeding to adopt 
its own requirements on triangular warning devices. Further, 
terminating this rulemaking will give the Department more effective 
enforcement authority regarding the performance of those devices. This 
rulemaking (61 FR 29337, June 10, 1996) was initiated as part of the 
agency's efforts to implement the President's Regulatory Reinvention 

FOR FURTHER INFORMATION CONTACT: For technical issues: Mr. Richard Van 
Iderstine, Office of Vehicle Safety Standards, NPS-21, telephone (202) 
366-5280, FAX (202) 366-4329.
    For legal issues: Ms. Dorothy Nakama, Office of Chief Counsel, NCC-
20, telephone (202) 366-2992, FAX (202) 366-3820.
    Both may be reached at NHTSA, 400 Seventh Street, SW, Washington, 
DC 20590.


President's Regulatory Reinvention Initiative

    Pursuant to the March 4, 1995 directive ``Regulatory Reinvention 
Initiative'' from the President to the heads of departments and 
agencies, NHTSA undertook a review of its regulations and directives. 
During the course of this review, NHTSA identified regulations that it 
could propose to rescind as unnecessary or to amend to improve their 
comprehensibility, application, or appropriateness. Among the 
regulations identified for potential rescission is Federal Motor 
Vehicle Safety Standard No. 125, Warning devices (49 CFR Sec. 571.125).

Background of Standard No. 125

    Federal Motor Vehicle Safety Standard (FMVSS) No. 125, Warning 
devices, specifies requirements for warning devices that do not have 
self-contained energy sources (unpowered warning devices) and that are 
designed to be carried in buses and trucks that have a gross vehicle 
weight rating (GVWR) greater than 10,000 lbs. The unpowered warning 
devices are intended to be placed on the roadway behind a disabled 
vehicle to warn approaching traffic of the vehicle's presence. The 
Standard does not apply to unpowered warning devices designed to be 
permanently affixed to the vehicle. The purpose of the Standard is to 
reduce deaths and injuries due to rear-end collisions between moving 
traffic and stopped vehicles.
    The standard requires that the unpowered warning devices be 
triangular, covered with orange fluorescent and red reflex reflective 
material, and open in the center. These characteristics are intended to 
assure that the warning device has a standardized shape for quick 
message recognition, can be readily observed during both daytime and 
nighttime, and provides limited wind resistance so that it does not 
blow over when deployed.
    NHTSA has never required that any new vehicle be equipped with the 
Standard No. 125 warning device or any other warning device. However, 
as explained below, FHWA, which has authority to regulate interstate 
commercial vehicles-in-use, mandates that operators of those vehicles 
carry and use unpowered warning devices meeting Standard No. 125, 
fusees or flares.

Previous Changes to Standard No. 125

    Before 1994, Standard No. 125 applied to unpowered warning devices 
that are designed to be carried in any type of motor vehicle. On May 
10, 1993 (58 FR 27314), NHTSA issued a notice of proposed rulemaking 
(NPRM) to amend Standard No. 125 so that the Standard applied only to 
warning devices that are designed to be carried in buses and trucks 
that have a gross vehicle weight rating (GVWR) greater than 10,000 lbs.

[[Page 32563]]

    NHTSA proposed to narrow the scope of Standard No. 125 in order to 
provide manufacturers of unpowered warning devices with greater design 
freedom and to relieve an unnecessary regulatory burden on industry. At 
the specific request of FHWA, the agency proposed to retain the 
requirements for warning devices for buses and trucks with a GVWR 
greater than 10,000 lbs. This aspect of NHTSA's proposal supported 
FHWA's regulation of commercial motor vehicles under the Federal Motor 
Carrier Safety Regulations (FMCSR) (49 CFR parts 350-399). Section 
393.95 of the FMCSR requires either that three Standard No. 125 warning 
devices or specified numbers of fusees or flares be carried on all 
trucks and buses used in interstate commerce.
    NHTSA limited the applicability of Standard No. 125, as proposed, 
in a final rule published on September 29, 1994 (59 FR 49586). In the 
final rule, NHTSA stated that it was retaining Standard No. 125 in its 
narrowed form largely to ensure the continued availability of 
standardized unpowered warning devices which FHWA could specify as a 
means of complying with its warning device requirements for commercial 
vehicle operators.

Proposed Rescission of Standard No. 125

    After reviewing Standard No. 125 in light of the President's 
Regulatory Review Initiative, NHTSA tentatively determined that 
retaining Standard No. 125 is not necessary to ensure the continued 
availability of unpowered warning devices. Accordingly, the agency 
developed a rescission proposal which reflected written and oral 
comments from FHWA staff. It published the NPRM on June 10, 1996 (61 FR 
    In the NPRM, NHTSA suggested that if Standard No. 125 were 
rescinded, FHWA would have two options. First, instead of specifying 
warning devices meeting NHTSA's Standard No. 125, FHWA could specify 
devices meeting criteria adopted by FHWA and placed in its own 
regulations. More specifically, FHWA could adopt the current 
manufacturing standards for the warning devices, i.e., those in 
Standard No. 125, as an appendix to the Federal Motor Carrier Safety 
Regulations. Section 393.95 would be revised to reference the newly 
created appendix as opposed to Section 571.125.
    Second, FHWA could work with an industry voluntary standards 
setting organization such as the Society of Automotive Engineers (SAE) 
to develop an industry standard on unpowered warning devices containing 
requirements similar to those in Standard No. 125. Once those 
requirements were developed, FHWA could incorporate them by reference 
in Section 393.95.

Public Comments on Proposed Rescission

    NHTSA received mixed comments in response to its proposal to 
rescind Standard No. 125. Two commenters, Chrysler and Ford, supported 
NHTSA's proposal to rescind the Standard. Chrysler stated its agreement 
with NHTSA that Standard No. 125 is unnecessary ``since devices meeting 
these requirements are already stipulated by the FHWA for commercial 
carriers.'' Ford suggested that Standard No. 125's provisions could be 
transferred to FHWA's Federal Motor Carrier Safety Regulations (FMCSR).
    Other commenters, including 3M Company, Advocates for Highway and 
Auto Safety (Advocates), Dr. Merrill J. Allen, American Highway Users 
Alliance (AHUA), American Trucking Associations (ATA), Automotive Parts 
and Accessories Association (APAA), Center for Auto Safety (CAS), 
Cortina Tool and Molding and James King Company (in one submission) 
(Cortina/King), National Private Truck Council (NPTC), Sate-Lite 
Manufacturing Company, Transportation Safety Equipment Institute 
(TSEI), Truck Manufacturers Association (TMA) and several members of 
the U.S. House of Representatives opposed the proposed rescission of 
Standard No. 125. The commenters offered the following reasons for 
their opposition:

1. Standard No. 125 Has Value

    The commenters opposed to rescinding Standard No. 125 generally 
stated that the Standard has value, and expressed various reasons for 
their belief. Sate-Lite, a triangular warning device manufacturer, 
stated that it did not consider the Standard's performance requirements 
unnecessary or a burden. 3M, which operates a fleet of over 5200 
vehicles, stated that: ``Each of the criteria in the standard represent 
items of value to the users of those devices.'' 3M stated that 
deviations from these criteria would reduce and possibly eliminate this 
    Other commenters stated that Standard No. 125 is needed simply 
because it ensures uniformity in the triangular warning devices. 
Erosion of uniformity would impair the ability of those devices 
designed to meet the current standard to communicate hazards 
effectively. 3M and APAA stated that with the recent increases in the 
nation's speed limits, there is a greater need for motorists to have 
advance, distinctive warning of a disabled vehicle ahead, and the 
triangular warning device meets that need. Cortina/King commented that 
Standard No. 125 devices are the only safe warning devices for 
deployment in conjunction with a stopped vehicle carrying flammable 
    TSEI commented that NHTSA appears ready to adopt an ``anything 
goes'' approach that would confuse motorists and violate the agency's 
longstanding policy of maintaining consistency in visual signals to 
motorists. TSEI contrasted the present rulemaking with NHTSA's past 
interpretations of Standard No. 108, Lamps, reflective devices, and 
associated equipment. Those interpretations emphasized the safety 
importance of avoiding even momentary confusion of motorists as to the 
meaning of the supplemental lighting signals.

2. State Regulation and International Harmonization Issues

    Related to the lack of uniformity issue, Advocates, ATA, and TSEI 
expressed concern that the States would regulate in the absence of 
Standard No. 125. Advocates, AHUA, and TSEI also suggested that 
rescinding Standard No. 125 would conflict with NHTSA's recently 
announced efforts (see 61 FR 30657, June 17, 1996) to harmonize the 
FMVSSs with international standards.

3. NHTSA Administration and Enforcement of Triangular Warning Devices 
is Preferred

    Many commenters expressed the view that NHTSA has more effective 
statutory authority to administer and enforce a unpowered triangular 
warning device standard than FHWA. Some commenters raised the 
possibility that there could be a period after NHTSA rescinds the 
Standard and before FHWA enacts it, when there would be no triangular 
warning device regulation at all. Some commenters incorrectly 
speculated that there had not been any consultation between NHTSA and 
FHWA during NHTSA's development of its proposal.

4. Rescinding the Standard Would Be ``Arbitrary and Capricious

    Some commenters stated that in its proposed rescission of Standard 
No. 125, NHTSA did not show that there is no safety need for the 
Standard, and in absence of showing no safety need, NHTSA has no legal 
authority to rescind the standard.

[[Page 32564]]

Agency Decision

    In response to the President's Regulatory Reinvention Initiative, 
NHTSA carefully examined Standard No. 125. Although NHTSA has a safety 
standard for warning triangles, FHWA is the part of the Department that 
has the greatest program responsibilities for warning triangles. It is 
FHWA that requires vehicle operators to carry warning triangles or 
other warning devices in vehicles and it is FHWA that requires vehicle 
operators to use warning triangles or other warning devices to alert 
other motorists of the presence of a disabled vehicle. In issuing its 
proposal, NHTSA believed it would make the government program for 
warning triangles more effective and more efficient if the FHWA were 
also responsible for establishing the performance requirements for 
these warning devices.
    After reviewing the public comments on this proposal and after 
further consultation with FHWA, NHTSA believes that the current 
division of program responsibilities and regulatory requirements has 
served the public well. In fact, the current division of 
responsibilities assures the public the benefits of the joint expertise 
of NHTSA and FHWA working together on issues that arise in connection 
with these warning devices. In addition, the proposal would have forced 
FHWA to expend resources to promulgate a rule that would be identical 
to the rule NHTSA rescinded. After reconsidering all these factors, 
NHTSA has concluded that its proposal to rescind the warning triangle 
standard should be terminated. This notice announces that termination.
    Potential rulemaking actions may arise from one or more pending 
petitions. Because it will retain Standard No. 125, NHTSA will proceed 
with its consideration of pending petitions for rulemaking to amend 
Standard No. 125 from the TSEI and Gault Industries.

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; 
delegations of authority at 49 CFR 1.50 and 501.8.

    Issued on: June 10, 1997.
L. Robert Shelton,
Associate Administrator for Safety Performance Standards.
[FR Doc. 97-15746 Filed 6-13-97; 8:45 am]