[Federal Register Volume 64, Number 174 (Thursday, September 9, 1999)]
[Rules and Regulations]
[Pages 48957-48959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23346]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 658

[FHWA Docket No. FHWA-98-4326]
RIN 2125-AE43


Truck Size and Weight; Definitions; Nondivisible

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: This document amends the definition of nondivisible load or 
vehicle to include marked military equipment or materiel. This will 
allow, but not require, States to issue overweight permits for such 
vehicles or supplies to move on the Interstate System.

EFFECTIVE DATE: October 12, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Klimek, Office of Freight 
Management and Operations (202) 366-2212, or Mr. Charles Medalen, 
Office of the Chief Counsel (202) 366-1354, 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 
Dockets, Room PL-401, by using the universal resource locator (URL): 
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 using a 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.nara.gov/fedreg and the Government Printing Office's 
database at: http://www.access.gpo.gov/nara.

Background

    States must adopt and enforce Federal weight standards for the 
Interstate System or risk the loss of certain Federal-aid highway 
funds. These standards are 20,000 pounds on a single axle, 34,000 
pounds on a tandem axle, and the weights specified by the bridge 
formula, up to a maximum gross vehicle weight of 80,000 pounds. The 
bridge formula is designed to ensure that a vehicle is sufficiently 
long and has enough axles to protect bridges by spreading the weight 
over a large area of bridge decking and supports. Some States also have 
grandfathered weight limits for divisible loads or vehicles (those that 
can be easily dismantled or divided) that exceed Interstate System 
standards. These usually represent limits that were in effect in a 
State before the Interstate limits were adopted. In addition, all 
States may issue permits allowing nondivisible loads or vehicles, 
(those that cannot be easily dismantled or divided) to use Interstate 
highways at weights above the normal Interstate limits. Prior to this 
final rule, the FHWA defined nondivisible load or vehicle in 23 CFR 
658.5 as follows:
    (1) As used in this part, nondivisible means any load or vehicle 
exceeding applicable length or weight limits which, if separated into 
smaller loads or vehicles, would:
    (i) Compromise the intended use of the vehicle, i.e., make it 
unable to perform the function for which it was intended;
    (ii) Destroy the value of the load or vehicle, i.e., make it 
unusable for its intended purpose; or
    (iii) Require more than 8 workhours to dismantle using appropriate 
equipment.
    The applicant for a nondivisible load permit has the burden of 
proof as to the number of workhours required to dismantle the load.
    (2) A State may treat emergency response vehicles and casks 
designed for the transport of spent nuclear materials as nondivisible 
vehicles or loads.
    The Department of Defense's Military Traffic Management Command 
(MTMC) petitioned the FHWA for rulemaking to amend this definition to 
include marked military vehicles. The MTMC pointed out that since the 
end of the Cold War, the number of military units deployed overseas has 
declined, with the result that the bulk of our military forces are 
based in the continental United States. Current mobility strategy 
requires the capability to deploy military forces from the United 
States to any point where they may be needed. The nation's highways, 
particularly the Interstate System, play a significant role in such 
actions. Training exercises are essential to the performance of this 
mission since troops in actual deployments must be familiar with 
highway operations in order to assure safe and efficient 
transportation. The FHWA granted the MTMC petition for rulemaking on 
May 20, 1998, and a notice of proposed rulemaking (NPRM) was published 
November 20, 1998 (63 FR 64434).
    Only three sets of comments, all from State agencies, were received 
in the docket.
    The Illinois State Police (ISP) indicated that the proposal 
``appears logical,'' and mirrors the current policy of the Illinois 
Department of Transportation. In closing, however, the ISP stated that 
it would ``remain neutral'' on this proposal. No further explanation 
was provided.
    The Wisconsin Department of Transportation (WISDOT) objected to the 
proposal for several reasons. Summarized, these include the following: 
(1) the permissive language of the proposal, (``A State may treat * * * 
marked military equipment. * * *.''), does not address the desire for 
national uniformity posed by MTMC in its petition, because a State 
could refuse to issue the permit; (2) even if States are willing to 
issue nondivisible load permits for State highways, local jurisdictions 
may refuse to issue similar permits if highways under their 
jurisdiction are required to complete point to point travel; (3) the 
phrase ``marked military equipment or materiel'' is too broad; (4) 
because this issue is too complex to be resolved by regulation, the 
Congress must correct any problem by national legislation; (5) the 
statement in the preamble to the NPRM, that ``the vehicle or load must 
be directly related to the military's combat or defense mission,'' is 
too vague; and (6) the FHWA should postpone action until the agency's 
Comprehensive Truck Size and Weight Study (see 64 FR 2699, January 15, 
1999) is complete.
    The Idaho Transportation Department (ITD) indicated ``no concerns'' 
with treating marked military vehicles as nondivisible, and suggested 
that the definition be expanded to include military vehicles of other 
nations acting as training partners. However, the ITD is concerned that 
the term military materiel needs to be much more narrowly defined if it 
is to be included in the regulation.
    As the preamble to the NPRM stated, the intent of this rulemaking 
is to accommodate the mobilization needs of the military. The original 
petition filed by the MTMC asked that marked military vehicles be 
included in the regulatory definition of nondivisible. The term 
materiel was included in the NPRM to make it clear that the items 
carried on the vehicles, as well as the vehicles themselves, are to be 
considered nondivisible. The reference in the NPRM to combat or defense 
missions, was included to help distinguish between movements intended 
to be covered by this rule and other transportation not uniquely

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military in purpose. The term ``marked military equipment or materiel'' 
has two components: (1) markings which openly identify the equipment or 
materiel as belonging to the U.S. military forces; and (2) equipment or 
materiel which is directly related to a combat or defense mission. The 
key term is ``directly related.'' The intent here is to cover military 
vehicles moving ammunition, medical supplies, food, water, or any other 
consumable or expendable commodity directly used in carrying out a 
combat or defense operation, including training exercises. Items that 
would not normally be directly related to a military or combat mission 
would be, for example, household furnishings or office equipment moving 
on military vehicles. To clarify the status of materiel, only items 
carried on marked military vehicles are covered. Materiel carried on 
vehicles not directly owned and operated by the military, even though 
the carriers may be operating under lease or contract to the military, 
does not qualify under this regulatory action.
    The WISDOT expressed concern about the permissive language of the 
NPRM. The only permit problems MTMC has reported were caused by State 
concerns that issuing divisible load permits for travel on the 
Interstate System, for loads or vehicles that do not meet the 
definition of Nondivisible vehicle or load set forth in 23 CFR 658.5, 
would cause the FHWA to find the State in violation of 23 U.S.C. 127, 
and withhold its National Highway System (NHS) apportionments. Allowing 
States to consider these vehicles and loads nondivisible, will resolve 
this problem. If State law allows local jurisdictions to issue permits, 
we believe they will nearly always follow the lead of the State in 
matters of nondivisibility. To date, the MTMC has not reported local 
permitting problems.
    The WISDOT also commented that regulatory action on this issue is 
inappropriate and that Congress should resolve any problems via 
national legislation, which would preempt State laws. The problems 
encountered by MTMC on this issue have been limited to a small number 
of States. There is every reason to believe that rulemaking will 
resolve the problem without resort to congressional action. At the same 
time, the permits issued by States will enable them to track and direct 
movements in order to protect the infrastructure.
    The WISDOT's last comment suggested that the FHWA ``may wish to 
postpone action'' until the agency's Comprehensive Truck Size and 
Weight Study is complete. The Study is essentially creating a national 
modeling mechanism that allows the agency objectively to analyze 
proposed changes to the current size and weight laws. This final rule 
is designed to alleviate a specific administrative problem affecting 
only a few States. This regulatory action is not likely to cause 
significant nationwide changes in permit movements, though it will 
alleviate the special problems faced by U.S. military forces.
    A regulation that makes it difficult for States to allow the use of 
the Interstate System for military purposes is indefensible. Amending 
the definition of a nondivisible load or vehicle in 23 CFR. 658.5 will 
enable the States to make nondivisible load permits available to 
military equipment and materiel without risking the loss of Federal-aid 
highway funds. While the movement of both commercial and military 
traffic is essential to the national welfare, they serve fundamentally 
different purposes. Allowing States to issue nondivisible overweight 
permits for military traffic to use the Interstate System will not 
compromise the ability of the FHWA to maintain reasonable limits on the 
use of such permits by commercial traffic. This final rule does not 
establish a precedent applicable to civilian vehicles.
    By this action the FHWA is amending paragraph (2) of the definition 
of a ``nondivisible load or vehicle'' by adding ``military vehicles 
transporting marked military equipment or materiel'' to the vehicles 
and equipment already listed there. This will enable, but not require, 
States to issue nondivisible load permits to vehicles qualifying as, or 
transporting, marked military equipment or materiel as discussed 
earlier. This is not to say that States should issue permits without 
consideration of the structural limits of their pavements or bridges. 
But withholding the discretion to accommodate the needs of U.S. 
military forces would be a disservice to the nation.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action does not constitute a 
significant regulatory action within the meaning of E.O. 12866, nor is 
it considered significant under the regulatory policies and procedures 
of the DOT. It is anticipated that the economic impact of this 
rulemaking will be minimal. This final rule allows States to issue 
overweight permits for marked military equipment or materiel to travel 
on the Interstate System. The effect on that System will be negligible 
and under full control by the States. Therefore, a full regulatory 
evaluation is not required.

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. This rulemaking affects only States and the Department of 
Defense.
    Based on its evaluation of this rule, the FHWA certifies that this 
action would not have a significant economic impact on a substantial 
number of small entities.

Executive Order 12612 (Federalism Assessment)

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

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.

Paperwork Reduction Act

    The proposal in this document does not contain information 
collection requirements for the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501-3520.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that this action would not have any effect on the quality of 
the environment.

Unfunded Mandates Reform Act of 1995

    This rule would not impose a Federal mandate resulting 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).

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.

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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 an economically significant rule and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

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 action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 658

    Grants programs--transportation, Highway and roads, Motor carrier--
size and weight.

    Issued on: September 2, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
    In consideration of the foregoing, the FHWA amends title 23, Code 
of Federal Regulations, part 658, as set forth below:

PART 658--TRUCK SIZE AND WEIGHT, ROUTE DESIGNATIONS--LENGTH, WIDTH 
AND WEIGHT LIMITATIONS

    1. The authority citation for 23 CFR part 658 is revised to read as 
follows:

    Authority: 23 U.S.C. 127 and 315; 49 U.S.C. 31111--31114 ; 49 
CFR 1.48.

    2. In Sec. 658.5, revise the definition of ``nondivisible load or 
vehicle'' to read as follows:


Sec. 658.5  Definitions.

* * * * *
    Nondivisible load or vehicle.
    (1) As used in this part, nondivisible means any load or vehicle 
exceeding applicable length or weight limits which, if separated into 
smaller loads or vehicles, would:
    (i) Compromise the intended use of the vehicle, i.e., make it 
unable to perform the function for which it was intended;
    (ii) Destroy the value of the load or vehicle, i.e., make it 
unusable for its intended purpose; or
    (iii) Require more than 8 workhours to dismantle using appropriate 
equipment. The applicant for a nondivisible load permit has the burden 
of proof as to the number of workhours required to dismantle the load.
    (2) A State may treat emergency response vehicles, casks designed 
for the transport of spent nuclear materials, and military vehicles 
transporting marked military equipment or materiel as nondivisible 
vehicles or loads.
* * * * *
[FR Doc. 99-23346 Filed 9-8-99; 8:45 am]
BILLING CODE 4910-22-P