[Federal Register Volume 65, Number 239 (Tuesday, December 12, 2000)]
[Proposed Rules]
[Pages 77534-77538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31642]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 945

[FHWA Docket No. FHWA-99-5844]
RIN 2125-AE63


Dedicated Short Range Communications in Intelligent 
Transportation Systems (ITS) Commercial Vehicle Operations

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM); reopening 
of docket comment period.

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SUMMARY: This document reopens the comment period on this docket and 
delays the issuance of a final rule to require the use of the FHWA 
specification for Dedicated Short Range Communication (DSRC) for 
Commercial Vehicle Operations (CVO); a provisional standard for 
Intelligent Transportation Systems (ITS) commercial vehicle projects 
using highway trust funds. Based on the comments received, the date of 
the final rule will be determined by the completion of the testing 
program to evaluate products designed to meet the provisional standard. 
Also, this document responds to all the substantive comments received 
to date on this docket.

DATES: This docket will remain open until the FHWA publishes another 
rulemaking document when testing is complete.

ADDRESSES: Mail or hand deliver comments to the docket number that 
appears in the heading of this document to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590, or submit electronically at http://dmses.dot.gov/submit. All comments received will be available for 
examination and copying at the above address from 9 a.m. to 5 p.m., 
e.t., Monday through Friday, except Federal holidays. Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped postcard or you may print the acknowledgment page

[[Page 77535]]

that appears after submitting comments electronically.

FOR FURTHER INFORMATION CONTACT: Mr. William S. Jones, ITS Joint 
Program Office (JPO), (202) 366-2128, e-mail address 
[email protected]>; or Mr. Wilbert Baccus, Office of the 
Chief Counsel, (HCC-32) (202) 366-0780, e-mail address 
[email protected]>, Federal Highway Administration, 400 
Seventh Street, SW., Washington, DC 20590. Office hours are from 7:30 
a.m. to 4 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dmses.dot.gov/submit. Acceptable 
formats include: MS Word (versions 95 to 97), MS Word for Mac (versions 
6 to 8), Rich Text File (RTF), American Standard Code Information 
Interchange (ASCII) (TXT), Portable Document Format (PDF), and 
WordPerfect (versions 7 to 8). The DMS is available 24 hours each day, 
365 days each year. Electronic submission and retrieval help and 
guidelines are available under the help section of the web site.
    An electronic copy of this document may also be downloaded by using 
a computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.nara.gov/fedreg and the Government 
Printing Office's web page at: http://www.access.gpo.gov/nara.

Background

    The notice of proposed rulemaking (NPRM) published at 64 FR 73674 
on December 30, 1999, under Docket No. FHWA 99-5844, contains a 
detailed discussion of the events and background that has led to this 
rulemaking process. Only a brief summary of this background is 
presented in this Supplemental NPRM.
    In section 5206 of the Transportation Equity Act for the 21st 
Century (TEA-21), Public Law 105-178, 112 Stat. 107, at 457 (23 U.S.C. 
502 Note), the Congress requires the Department to ``ensure the 
national interoperability'' of ITS services through standards. To carry 
out this mandate, the Congress stated that the Secretary could use the 
services of existing standards-setting organizations, as appropriate. 
The statutory provisions also provide that use of approved standards 
shall be established as a prerequisite for use of highway trust funds 
on relevant ITS projects. Further, the Congress authorized the 
Secretary to issue ``provisional standards'' when the normal consensus 
standard development process was unsuccessful in reaching agreement on 
a standard.
    There is a clear need for interoperability in at least two 
applications of DSRC technology within the ITS program as follows:
    1. Interstate trucks that participate in the Commercial Vehicle 
electronic screening programs require national interoperability. This 
allows participating vehicles to be electronically cleared, if they are 
safe and legal, without stopping at State ports of entry or weigh/
inspection stations.
    2. All vehicles, including passenger cars and trucks, in a common 
multitoll environment within a single State or multistate metropolitan 
area, require regional interoperability.
    This rulemaking only addresses the national interoperability 
requirement for commercial vehicle applications of DSRC technology. For 
the CVO program to be successful, it is essential that these vehicles 
be able to travel from State to State, and within a State, using DSRC 
technology for processing at automated inspection stations and to be 
able to bypass State ports of entry if they meet the criteria for 
safety, and possess the appropriate credentials. The only way to 
achieve this fundamental objective is to have DSRC standards that all 
States utilize for their ITS CVO implementations. Thus, this 
application clearly falls within the TEA-21 definition of standards 
``critical to national interoperability.'' The critical standards list 
defined by the ITS Joint Program Office (JPO), in response to the TEA-
21, can be accessed on the JPO web site: http://www.its.dot.gov.
    The FHWA entered into a rulemaking process for CVO because the 
established standards process was unable to produce a standard that 
would ensure national interoperability. The current set of DSRC 
standards that have been adopted by the American Society of Testing and 
Materials (ASTM), ASTM PS 111-98 and ASTM PS 111-xxx, allow multiple 
DSRC technologies to exist, thus promulgating the current 
interoperability dilemma. The DOT, therefore, defined a provisional 
standard that incorporated portions of the ASTM standards and the IEEE 
standard, IEEE P 1455, that was backward compatible with all existing 
CVO installations. The NPRM required that this new provisional standard 
be used for all new purchases of DSRC devices for commercial vehicle 
electronic screening when highway trust funds were used for these 
purchases after January 1, 2001.
    Because of the concerns voiced by the CVO community about 
proceeding with a rule before equipment designed to the provisional 
standard has been tested to ensure its technical viability, the FHWA 
has decided to postpone issuing the final rule until that test program 
is complete. The subject NPRM stated that the FHWA intended to test the 
provisional specification. At the time the NPRM was drafted, those 
tests were to have been completed prior to the effective date of the 
final rule. Further, the NPRM stated that the intent of the provisional 
specification was to enable backward compatibility. Backward 
compatibility means that no existing roadside or vehicle equipment for 
electronic screening would be required to be modified or replaced. To 
ensure this compatibility, the manufacturers were involved in 
developing the provisional specification, and the FHWA is going to test 
produce built with the provisional specification for both functional 
capability and backward compatibility.
    Although there were other comments to the NPRM, these were clearly 
the most crucial in their potential impact on the CVO community. Having 
addressed these concerns, the FHWA believes it is necessary to continue 
the rulemaking process to achieve the objective of national 
interoperability in the CVO program at a time when the tested 
technologies can support the use of the provisional standard.
    In the subsequent discussion, the substantive comments will be 
addressed.

Comments to the NPRM

    There were 24 comments received by the FHWA concerning the proposed 
rule. Comments were received from a joint submission of HELP Inc. and 
NORPASS Inc.; the HELP/NORPASS comments were supported by State 
Trucking Associations from California, Arkansas, Arizona, Montana, and 
Nevada; and by Combined Transport Inc., Montana Department of 
Transportation, NATSCO Inc., Delphi Automotive systems, Market 
Transport, Ltd., Watkins Shepard Trucking Inc., Wyoming Highway Patrol, 
Lockheed Martin IMS, and the Tennessee Department of Safety. This group 
of 15 respondents will be referred to as HELP in subsequent 
discussions. Additional comments were received from Amtech Systems, 
Mark IV IVHS, Inc., Peace

[[Page 77536]]

Bridge Authority, TransCore, the American Trucking Association (ATA), 
E-Z Pass IntgerAgency Group, Illinois Department of Transportation, 
Washington State Department of Transportation, and the Wisconsin 
Department of Transportation.

Response to Comments on the NPRM

    Comment: The ATA, TransCore, and HELP questioned the need for DOT 
to do a rulemaking because of the widespread use of the existing device 
throughout the CVO community.
    FHWA Response: It is the opinion of the FHWA that the current, 
essentially de facto, ``standard'' is a result of the ITS funding that 
has spurred the deployment of CVO technology and the insistence of the 
FHWA on the use of that device. However, CVO may be deployed using 
other non-Federal funding sources where the FHWA will not have the 
opportunity to enforce the de facto standard. The Department is aware 
of States that would prefer to use another device that is more 
compatible with other DSRC applications in their region, such as 
electronic tolls. Therefore, the only way to ensure the DOT is doing 
everything possible to achieve national interoperability is to insist 
that if Federal funds are employed in the deployment, that a standard 
will be used. It is recognized that States may still circumvent the 
regulation by not using highway trust funds for CVO projects. However, 
it is incumbent upon the Department to do everything practical to 
ensure national interoperability.
    Comment: HELP asserted that the proposed rule would have the 
Federal government pick winners and losers in the industry.
    FHWA Response: The Department does not agree that the proposed rule 
would pick ``winners and losers'' in the DSRC industry. There are 
currently two suppliers of equipment for the CVO application. These two 
suppliers were chosen by both HELP and Norpass, not the Federal 
government. Both of these suppliers have indicated a willingness to 
build products to the proposed FHWA specification. The operators of CVO 
facilities would have the same competitive environment that currently 
exists.
    Comment: HELP and Washington State DOT were concerned that the 
proposed specification would require significant modifications to their 
existing equipment and potentially cause interruptions in existing 
service.
    FHWA Response: The existing manufacturers have indicated that the 
new transponders designed to the FHWA specification would be backward 
compatible with all existing roadside equipment. Therefore, this 
regulation would neither require modifications nor cause disruptions in 
service. The FHWA specification provides, but does not require, 
additional functionality in the roadside equipment for CVO application. 
It also does not require truckers to change their existing 
transponders. Therefore, there should be no interrruption in the daily 
operations of existing CVO installations. The FHWA testing program will 
validate this capability.
    Comment: HELP commented that the proposed rule would be in 
violation of California law.
    FHWA Response: The proposed regulation does not apply to the 
electronic toll collection application of DSRC, and therefore is not in 
conflict with California law.
    Comment: HELP, and ATA, and Washington DOT believed this rule would 
be in conflict with electronic toll activities and would not provide 
interoperability for toll systems.
    FHWA Response: The proposed rule does not apply to the electronic 
toll application of DSRC. It is recognized that this rule will not 
solve the interoperability problem within the toll industry as was 
clearly stated in the NPRM.
    Comment: HELP and Washington DOT felt that there was not adequate 
time provided for public discussion of the proposed rule.
    FHWA Response: This SNPRM reopens the docket and will allow for 
comments to be submitted over an extended time frame. However, the 
Department engaged in public discussions for almost two years on the 
subject of DSRC interoperability and the potential avenues to achieving 
that goal. The idea of the ``sandwich'' specification, the popular name 
for the FHWA specification, for DSRC was discussed at a number of 
forums involving both the toll and CVO communities beginning in mid-
1998, almost a year before entering the formal rulemaking process. The 
Department does not agree that there has been inadequate time for the 
community to respond. However, the decision to postpone the final rule 
until testing is complete should satisfy this concern.
    Comment: HELP, the E-Z Pass Interagency Group, TransCore, Mark IV, 
Washington DOT, and Wisconsin DOT were concerned that equipment built 
to the FHWA specification had not been tested.
    FHWA Response: The Department recognizes that the FHWA 
specification has not yet been built and tested. The NPRM specifically 
stated the intent of the FHWA to conduct a test program to validate the 
efficacy of the specification and the backward compatibility feature 
prior to its mandatory use, and deferred application to procurement of 
new equipment after January 2001. It is now clear to the FHWA that the 
proposed test schedule is unlikely to be met, and that testing must be 
done before the device is deployed. Thus, FHWA is publishing this SNPRM 
to delay issuance of the final rule until after the test program is 
complete.
    Comment: The ATA and HELP did not believe that there were other 
applications for DSRC and, therefore, the incorporation of the IEEE 
application layer standard into the FHWA provisional standard was 
unnecessary.
    FHWA Response: The recent announcement of one of the manufacturers 
to build a new transponder that incorporates the FHWA specification, 
would signify to the Department that the supplier industry believes 
that there are multiple applications for the device beyond CVO. 
Further, the manufacturers that collaborated on the development of the 
specification agreed to the inclusion of the IEEE application layer 
standard in the belief that other applications were probable.
    Comment: The ATA, HELP, the E-Z Pass Interagency Group, and 
Washington DOT were concerned that the proposed rule would adversely 
impact the development and deployment of DSRC devices at 5.9GHz.
    FHWA Response: The FHWA does not believe that this regulation will 
have any impact on the development of equipment at the new 5.9GHz 
frequency. Manufacturers have publicly indicated that the two are 
unrelated and are moving forward to develop the standard for 5.9GHz and 
plan to build a product at that frequency to serve markets other than 
CVO. Further, the Department does not anticipate requiring the use of 
5.9GHz for the CVO application in the foreseeable future, unless the 
CVO community would advocate such a transition.
    Comment: The Amtech argues for a regional approach to 
interoperability since most of the nation's trucks are regional 
carriers. This would mean that each region could pick its own locally 
utilized transponder configuration, presumably a toll application, for 
use in its CVO application. This means that the majority of trucks in 
the nation, the regional carriers, would require only one transponder, 
and the interstate trucking fleets would require at least two 
transponders. The supposition is that the converse is true if FHWA

[[Page 77537]]

promulgates this rule, i.e., that all regional carriers would require 
two transponders.
    FHWA Response: If promulgated, this rule would not require that all 
intrastate trucks have two transponders. The proposed rule does not 
prohibit States from installing roadside equipment at CVO sites that 
accommodates the regional toll standard for use by the intrastate 
carriers. However, this would be in addition to their existing 
equipment used for electronic screening which will be compatible with 
the new proposed FHWA specification. This option would be cheaper than 
equipping all intrastate vehicles with two transponders. However, the 
cost of that additional roadside equipment for toll collection would be 
borne by the public sector rather than the trucking industry. 
Presumably, the States would derive a public benefit from this 
approach, which would allow a large percentage of the commercial 
vehicles to be served within a local region. This approach would mean 
that the interstate trucks would be relegated to one transponder to 
serve all the CVO functions, and additional transponders as needed for 
operations with the toll agencies. The point is that there are 
alternatives to having multiple transponders while still retaining the 
objective of national interoperability for interstate trucking.
    Comment: The ATA and TransCore were concerned that the FHWA 
regulation will stifle innovation in the industry and ``dooms state 
governments to perennial obsolescence.''
    FHWA Response: The Department recognizes that the pace of 
technological innovation in the electronics industry is much faster 
than the traditional aspects of highway design that the FHWA normally 
regulates. Therefore, it is incumbent upon the Department to monitor 
the advances in technology that might affect the CVO industry, and be 
prepared to alter its position on the provisional standard as demanded 
by the changes in technology and community use.
    Comment: The ATA and Amtech were concerned that the FHWA proposed 
rule would require multiple transponders in every truck.
    FHWA Response: The current state of the toll industry, and for the 
foreseeable future, will require multiple transponders in vehicles to 
enable interstate travel using electronic toll collection. Further, the 
existing CVO transponders are not compatible with any of the toll 
applications. Therefore, the proposed rule is not intended, nor does it 
alter the current situation. This rule only addresses national 
interoperability for CVO functions.
    The recent announcement by a manufacturer to build a transponder 
that is compatible with all three current DSRC protocols in use in the 
United States, could be argued to be the result of the Department's 
insistence on interoperability and its readiness to issue regulations 
to promote that goal. It is clear that this was not the only motivating 
factor, but it was an influencing factor. The practical result is that 
the ATA's goal of ``one truck one tag'' is closer to reality.
    Comment: The ATA was concerned that the Department was ignoring 
congressional direction in Senate Report No. 106-55\1\ directing the 
testing of passive technology.
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    \1\ Senate Report No. 106-55, at 91 (1999) for the Department of 
Transportation and Related Agencies Appropriations Bill, FY 2000, 
Public Law 106-69.
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    FHWA Response: The FHWA has responded to the Senate Report No. 106-
55. The FHWA has a program to test passive technology for its 
compatibility with current CVO DSRC equipment, and will do likewise 
when the proposed FHWA specification is tested.

Conclusion

    Based on an evaluation of the comments, the Department has decided 
to proceed with a proposal that would require use of the FHWA 
specification for CVO applications, but delay issuance of a final rule 
until there are results from the planned testing of the new FHWA 
specification. Assuming that the tests prove the efficacy of the 
provisional specification, then the FHWA intends to proceed with the 
issuance of a final rule that would require the use of the FHWA 
specification for all CVO electronic screening projects.

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

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. It is anticipated that the economic 
impact of this rulemaking will be minimal, therefore, a full regulatory 
evaluation is not required. The implementation of this standard will 
not alter the functionality of the DSRC roadside or in-vehicle 
equipment. The recurring cost of these devices should be virtually the 
same as paid for existing equipment. We do not anticipate any 
significant economic impact of the regulation proposed in this 
rulemaking document. Nevertheless, the FHWA solicits comments, 
information, and data on this issue.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this proposal on small 
entities. Based on that evaluation, the FHWA hereby certifies that this 
proposal will not have a significant economic impact on a substantial 
number of small entities. Any impact to small entities would likely be 
a positive one, due to the resulting ability of these entities to 
compete in the open market for ITS system integration work and other 
engineering services and to develop and market DSRC standards 
conforming devices useful in CVO deployment. Large corporations, 
through sales of their proprietary products and proprietary interfaces 
have previously dominated this market. Previously, large corporations 
that owned the proprietary interface designs were the only 
organizations able to manufacture, install, integrate, and service 
equipment with the proprietary interfaces. Although the large 
corporations may experience a small loss of engineering services 
business, this will be more than compensated for by the increased 
marketability of their DSRC standards profile-conforming products in 
the growing national ITS industry.

Unfunded Mandates Reform Act of 1995

    This proposed 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. 1531 et. seq.).

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999, and 
it has been determined this action does not have a substantial direct 
effect or sufficient federalism implications on States that would limit 
the policymaking discretion of the States. Nothing in this document 
directly preempts any State law or regulation.

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,

[[Page 77538]]

eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyized this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed rule is not an economically significant rule and 
does not concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This proposed rule will not effect a taking of private property or 
othewise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 and amendments thereto regarding 
intergovernmental consultation on Federal programs and activities apply 
to this program. Those regulations stipulate that Federal agencies 
shall provide opportunities for consultation by element officials of 
State and local governments that would provide non-Federal funds for, 
or that would be directly affected by, proposed Federal assistance or 
direct Federal development. The regulations further state that the 
Federal agencies must communicate with the appropriate State and local 
officials as early in the program planning cycle as is reasonable 
feasible to explain specific plans and actions.
    Since members of the ASTM, the IEEE. and the DSRC industry 
participated in establishing the need for the DSRC standards, in 
defining the requirements for the DSRC standards, and in development 
and approval of the DSRC standards, it is clear that requirements of 
the intergovernmental review regulations have been satisified. In 
addition, the FHWA and ITS America have made information about the 
standards program and the standards widely and publicly available. 
Furthermore, publication of this SNPRM further emphasizes the agency's 
efforts to coordinate with State and local governments by providing 
another opportunity to review and comment on our proposal.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) [44 U.S.C. 3501-
3520], Federal agencies must determine whether requirements contained 
in proposed rulemaking are subject to the information collection 
provisions of the PRA. The FHWA has determined that this proposed 
regulation does not constitute an information collection within the 
scope or meaning of the PRA. Implementation of this proposal would 
impose no paperwork burden on the States or private entities. The 
proposal merely sets forth the DSRC interoperability standards for 
devices that collect the vehicle data that is already being transmitted 
either electronically, visually, or otherwise. As for the States 
assuring that vendors of the devices comply with these standards, the 
FHWA is not imposing any formal certification process on them. The 
States may accomplish assurances of vendor compliance as part of their 
usual and customary processes that they would adopt to implement the 
requirements of any Federal regulation.

United States International Trade Policy

    The agency has analyzed the impact of this rulemaking on United 
States trade in accordance with Executive Order 12661 and finds no 
significant detrimental impacts on United States international trade 
policy.

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.

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 945

    Communications, Highways and roads, Radio, Transportation-
intelligent systems.

    Authority: 23 U.S.C. #315, and 502 note; sec. 6053(b), Pub. L. 
102-240, 105 Stat. 1914, at 2190; sec. 5206(e), Pub. L. 105-178, 112 
Stat. 107, at 457; and 49 CFR 1.48.

    Issued on: December 4, 2000.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 00-31642 Filed 12-11-00; 8:45 am]
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