[Federal Register Volume 66, Number 109 (Wednesday, June 6, 2001)]
[Rules and Regulations]
[Pages 30335-30339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14287]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 393

[FMCSA Docket FMCSA-1997-2222]


Parts and Accessories Necessary for Safe Operation; Trailer 
Conspicuity

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule; partial suspension of deadline.

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[[Page 30336]]

SUMMARY: The FMCSA is amending the Federal Motor Carrier Safety 
Regulations (FMCSRs) to extend the deadline for motor carriers 
operating intermodal container chassis (container chassis) to comply 
with the agency's requirement that trailers manufactured before 
December 1, 1993, be retrofitted with retroreflective sheeting (or 
reflex reflectors). Currently, the FMCSRs require that motor carriers 
engaged in interstate commerce install retroreflective tape or reflex 
reflectors on the sides and rear of semitrailers and trailers that were 
manufactured prior to December 1, 1993, have an overall width of 2,032 
mm (80 inches) or more, and a gross vehicle weight rating (GVWR) of 
4,536 kg (10,001 pounds) or more. The deadline for compliance with the 
rule is June 1, 2001. The partial suspension of the deadline will 
enable motor carriers operating container chassis to continue using 
those commercial motor vehicles without retroreflective sheeting (or 
reflex reflectors) until December 1, 2001. This action is in response 
to a petition from the Ocean Carrier Equipment Management Association, 
Intermodal Association of North America, Institute of Intermodal 
Container Lessors, and Association of American Railroads (collectively 
referred to as ``the Petitioners'').

DATES: The effective date for this rule is June 1, 2001.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Bus and 
Truck Standards and Operations, (202) 366-4009, Federal Motor Carrier 
Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-
0001.

SUPPLEMENTARY INFORMATION:   

Background

    On December 10, 1992, the National Highway Traffic Safety 
Administration (NHTSA) amended Federal Motor Vehicle Safety Standard 
(FMVSS) No. 108 (49 CFR 571.108), to require that trailers with an 
overall width of 2,032 mm (80 inches) or more and a GVWR greater than 
4,536 kg (10,000 pounds), except trailers manufactured exclusively for 
use as offices or dwellings, be equipped on the sides and rear with a 
means for increasing their conspicuity (57 FR 58406). Trailer 
manufacturers are given a choice of installing either red and white 
retroreflective sheeting or reflex reflectors arranged in a red and 
white pattern. Manufacturers of retroreflective sheeting or reflex 
reflectors intended for use in satisfying these requirements must 
certify compliance of their product with FMVSS No. 108, whether the 
material is used as original or replacement equipment. The effective 
date for the final rule was December 1, 1993.

FHWA Rulemaking and Congressional Action Concerning Retrofitting

    On January 19, 1994, the FHWA published an ANPRM requesting 
comments on issues related to the application of conspicuity treatments 
to trailers manufactured prior to the effective date of the NHTSA's 
final rule on trailer conspicuity (59 FR 2811). The agency requested 
that commenters respond, at a minimum, to several specific questions 
listed in the notice. In addition to responding to those specific 
questions, the FHWA encouraged commenters to include a discussion of 
any other issues that the commenters believed were relevant to the 
rulemaking.
    On August 6, 1996, the FHWA published a notice announcing that the 
agency had completed its review of the comments received in response to 
the ANPRM and that it would issue a notice of proposed rulemaking (61 
FR 40781).
    The Transportation Equity Act for the 21st Century (TEA-21) (Pub. 
L. 105-178, 112 Stat. 107) was enacted on June 9, 1998. Section 4025 
required that the Secretary issue a final rule regarding the 
conspicuity of trailers manufactured before December 1, 1993, within 
one year of the enactment of TEA-21. The Secretary was to consider, at 
a minimum:
    (1) The cost-effectiveness of any requirement to retrofit trailers 
manufactured before December 1, 1993.
    (2) The extent to which motor carriers have voluntarily taken steps 
to increase equipment visibility.
    (3) Regulatory flexibility to accommodate differing trailer designs 
and configurations, such as tank trucks.
    On June 19, 1998, the FHWA published a notice of proposed 
rulemaking to require motor carriers to install retroreflective tape or 
reflex reflectors within two years of the effective date of the final 
rule (63 FR 33611). The agency proposed allowing motor carriers a 
certain amount of flexibility in terms of the colors or color 
combinations during a 10-year period beginning on the effective date of 
the final rule, but requiring all older trailers to be equipped with 
conspicuity treatments identical to those mandated for new trailers at 
the end of the 10-year period. The proposal also specified the 
locations at which the retroreflective material would have to be 
applied to trailers during the phase-in period.
    Although the FHWA drafted the NPRM prior to the enactment of the 
TEA-21, the agency reviewed section 4025 of the TEA-21 prior to 
publishing the NPRM. The FHWA considered the NPRM to be consistent with 
the three statutory criteria.
    The FHWA published its final rule on trailer conspicuity 
retrofitting on March 31, 1999 (64 FR 15588). The final rule requires 
that motor carriers engaged in interstate commerce install 
retroreflective tape or reflex reflectors on the sides and rear of 
semitrailers and trailers that were manufactured prior to December 1, 
1993, have an overall width of 2,032 mm (80 inches) or more, and a 
gross vehicle weight rating (GVWR) of 4,536 kg (10,001 pounds) or more. 
Motor carriers must install retroreflective tape or reflex reflectors 
by June 1, 2001. The final rule allows motor carriers a certain amount 
of flexibility in terms of the colors or color combinations during a 
10-year period beginning on June 1, 1999, but requires that all older 
trailers be equipped with conspicuity treatments identical to those 
mandated for new trailers by June 1, 2009.

Petition for Rulemaking

    On March 30, 2001, the Petitioners, in accordance with 49 CFR 
389.31 (Petitions for Rulemaking), requested that the FMCSA extend the 
June 1, 2001, deadline for complying with the conspicuity retrofitting 
rule (49 CFR 393.13) until June 1, 2002. A copy of the petition for 
rulemaking is in the docket referenced at the beginning of this notice. 
The Petitioners argued that it is impossible for them to complete the 
required retrofitting by that date because they experienced technical 
problems applying retroreflective sheeting to the container chassis, 
and because unusually high volumes of intermodal freight over the past 
two years have made it difficult to schedule retrofitting of the 
chassis. The volume of intermodal freight and service demands have kept 
the equipment in use almost constantly. The Petitioners believe an 
extension of the deadline is necessary to avoid ``potentially 
disastrous consequences'' for U.S. trade.
    The Petitioners estimate that the FMCSA's retrofitting requirements 
are applicable to 385,600 container chassis and 44,500 domestic 
intermodal trailers manufactured before December 1, 1993. They estimate 
that on June 1, 2001, there would be approximately 193,000 trailers 
used in intermodal service (181,000 container chassis and 12,000 
domestic intermodal trailers) still in need of conspicuity material.
    With regard to the technical difficulties, the Petitioners 
indicated that the initial retrofit methods proved to be unsuccessful, 
so it took several

[[Page 30337]]

months to research, develop, test, and implement alternative retrofit 
methods.
    The Petitioners stated:

    Although development of retrofit methods began as early as 1998, an 
effective method for chassis was not developed and widely implemented 
until February 2000, almost a year after the rule was issued. At the 
time the final rule was promulgated, intermodal trailers and chassis 
were retrofitted by applying adhesive reflective tape onto scrupulously 
cleaned trailer or chassis surfaces when the ambient air temperature 
and the temperature of the trailer or chassis surface was above 50 
degrees Fahrenheit. Retrofitting in this way could only be accomplished 
in good weather (i.e., during peak shipping season months when 
equipment turn-around and unavailability is at its highest) or inside 
heated maintenance and repair facilities, which are limited in number 
and size.
    Although intermodal trailers are still retrofitted in this way, the 
process proved unsatisfactory for chassis because of the materials 
involved. Most of the chassis in need of retrofit have a wax-based 
petroleum coating designed to protect against general ``wear and 
tear,'' harsh road dirt and debris, and exposure to extreme weather 
conditions. Unfortunately, this coating has a serious unwanted side 
effect--it prevents reflective tape from adhering for any significant 
amount of time. Thus, reflective materials on chassis thought to have 
been retrofitted began falling off within a few weeks after 
application. An alternative retrofit method needed to be developed.
* * * * *
    Eventually, a fastener was found that could penetrate steel without 
compromising its integrity, and that did not require electrical or air 
power, and could be applied outside a machine shop. The fastener, known 
as the ``Hilti Fastener,'' utilizes a cold welding process to fasten 
the reflector-mounted aluminum strips onto chassis. To date, the Hilti 
Fastener is the fastest and most commonly-used method for lasting 
chassis retrofit. However, the Hilti Fastener was not available for 
general use until November of 1999, five months after the rule went 
into effect.
    The Petitioners believe that if the FMCSA does not grant an 
extension of the June 1, 2001, deadline many of the non-compliant 
intermodal equipment would have to be taken out of revenue service 
until the vehicles could be retrofitted. A reduction in available 
equipment on June 1, which coincides with the beginning of the peak-
shipping season, would adversely impact the flow of goods into and out 
of the United States. There would be fewer chassis to handle an 
increasing number of intermodal containers.

FMCSA's Basis for Suspending the Deadline for Container Chassis

    The FMCSA has carefully reviewed the Petitioners' request and 
believes that the technical problems associated with installing 
conspicuity treatments on container chassis warrants a suspension of 
the deadline as it applies to these particular CMVs. However, the 
agency does not believe the petitioners have presented a compelling 
argument for suspending the deadline for domestic intermodal trailers.
    The agency accepts the Petitioners' prediction that as of June 1, 
2001, approximately 237,000 container chassis and domestic intermodal 
trailers would have been retrofitted. The agency also accepts their 
estimate that there would be another 193,000 intermodal CMVs (181,000 
container chassis and 12,000 domestic intermodal trailers) to retrofit. 
The technical problems the owners had attaching the conspicuity 
materials with adhesives appear to have played a major role in their 
failure to complete the retrofitting of all their chassis by June 1, 
2001. However, the safety benefits of conspicuity treatments are 
significant and both the owners and operators should put forth much 
more aggressive efforts to ensure that the retrofitting is completed as 
soon as possible. A six-month extension should enable the owners to 
complete the retrofitting of most, if not all, of the remaining 
chassis, provided the task is handled with a greater sense of urgency 
than has been demonstrated to date.
    The FMCSA is concerned that the Petitioners failed to resolve 
technical issues early on in the retrofitting process to ensure 
compliance with the June 1, 2001, deadline and that the agency was not 
notified of these problems until March 2001. The agency believes use of 
the Hilti Fastener process should help to ensure that most of the 
remaining container chassis are retrofitted by December 1, 2001.
    The FMCSA understands the difficulties the owners of the container 
chassis have locating these vehicles. Efforts should be taken to 
improve the tracking of the chassis not only to comply with the 
conspicuity retrofitting rule, but also to ensure appropriate 
systematic inspection, repair, and maintenance of the chassis. It may 
even be necessary to authorize other parties to install conspicuity 
treatments on a reimbursable basis.
    With regard to the Petitioners request to extend the deadline for 
retrofitting of domestic intermodal trailers, the FMCSA does not 
believe sufficient technical justification has been provided to support 
the request. There is no indication that domestic intermodal trailers 
differ significantly from typical van-type trailers in terms of the 
surfaces on which the conspicuity treatments would be applied. While 
some of the logistics issues raised by the Petitioner may apply equally 
to container chassis and domestic intermodal trailer, the agency's 
primary reason for granting the partial suspension of the deadline is 
the unforeseen technical difficulty in retrofitting container chassis. 
Given the relatively small number of domestic intermodal trailers that 
would need to be retrofitted after June 1, 2001, the intermodal segment 
of the transportation industry could effectively manage an expedited 
program to retrofit those vehicles without a suspension of the 
deadline.
    The safety benefits of the retrofitting rule are such that the 
agency must ensure that as many trailers as possible are retrofitted as 
soon as possible. The entities that offer intermodal container chassis 
and domestic intermodal trailers for transportation should use every 
reasonable means available to comply with the rule.
    The FMCSA reviewed the NHTSA's recent technical report, ``The 
Effectiveness of Retroreflective Tape on Heavy Trailers,'' March 2001, 
(DOT HS 809 222), to ensure that the agency's estimates of the safety 
benefits of the retrofitting rule were appropriate. The NHTSA report 
evaluates the effectiveness of retroreflective sheeting in enhancing 
the visibility of heavy trailers and reducing the incidence of 
passenger cars crashing into the sides and rear of trailers at 
nighttime. The study is based on a statistical analysis of 10,959 
accident cases investigated by the Florida Highway Patrol and the 
Pennsylvania State Police from 1997 to 1999. The authors of the report 
indicate that conspicuity treatments reduced side and rear impacts into 
trailers in dark conditions (including ``dark-not-lighted,'' ``dark-
lighted,'' ``dawn,'' and ``dusk'') by 29 percent. In ``dark-not-
lighted'' conditions, the conspicuity treatments reduced side and rear 
impact accidents by 41 percent. Conspicuity material reduced side and 
rear impacts that resulted in fatalities or injuries to drivers of any 
vehicle by 44 percent.
    The FMCSA discussed the projected safety benefits of conspicuity 
material that meets the NHTSA requirement for new trailers in the 
preamble to the March 31, 1999, final rule requiring the retrofit of 
trailers manufactured before

[[Page 30338]]

December 1, 1993. As reported there, NHTSA estimated that 
retroreflective tape could lead to a 25 percent reduction in rear end 
collisions and a 15 percent reduction in side impact collisions. From 
data available at the time of the NHTSA's final rule implementing 
conspicuity enhancements, tractor-trailer combinations were involved in 
about 11,000 accidents per year in which they were struck in the side 
or rear at night. Within this group of accidents, about 8,700 injuries 
and about 540 fatalities occurred. The NHTSA indicated that the 
conspicuity requirements, when fully implemented, were expected to 
prevent, annually, 2,113 of these accidents. The NHTSA estimated 1,315 
fewer injuries and about 80 fewer fatalities would occur.
    The effectiveness study published in March 2001 indicates that when 
all heavy trailers have conspicuity treatments, the material will 
prevent approximately 7,800 accidents per year. Conspicuity treatments 
will prevent about 3,100 to 5,000 injuries, and 191 to 350 fatalities 
per year. Current information on the effectiveness of the conspicuity 
material on new trailers therefore strongly suggests that the safety 
benefits of retrofitting may be much greater than the agency estimated. 
As such, the FMCSA has an obligation to ensure that all trailers 
subject to its conspicuity retrofitting requirements, are equipped with 
the required retroreflective sheeting or reflex reflectors.
    The FMCSA will continue to work with its State partners to ensure 
that motor carriers operating trailers, other than container chassis 
(as defined in 49 CFR 393.5), comply with the conspicuity requirements 
on and after June 1, 2001. The agency intends to ensure that motor 
carriers operating container chassis comply on and after December 1, 
2001.

Rulemaking Analysis and Notices

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an 
agency may waive the normal notice and comment requirements if it 
finds, for good cause, that they are impracticable, unnecessary, or 
contrary to the public interest.
    In this case, notice and comment are impracticable. The final rule 
suspends the deadline for compliance with 49 CFR 393.13 for motor 
carriers operating intermodal container chassis until December 1, 2001. 
Because the Petitioners waited until March 30, 2001, to submit their 
request and supporting documentation, there was insufficient time for 
the FMCSA to complete a notice and comment rulemaking in response to 
the petition. Therefore, the FMCSA finds good cause under 5 U.S.C. 
553(b) to make this amendment effective without prior notice or 
opportunity for comment.
    For the same reasons, the FMCSA finds, pursuant to 5 U.S.C. 
553(d)(3), that there is good cause for making the final rule effective 
upon issuance. Because the compliance date for the trailer conspicuity 
retrofitting rule (49 CFR 393.13) is June 1, 2001, the final rule must 
be effective on or before that date. The partial suspension of the 
deadline for compliance will remain in effect until December 1, 2001.

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

    The FMCSA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or within 
the meaning of Department of Transportation regulatory policies and 
procedures. The final rule suspends the compliance date of Sec. 393.13 
until December 1, 2001, for motor carriers operating intermodal 
container chassis, while retaining the current compliance date for 
retrofitting trailers manufactured before December 1, 1993. Although 
the March 31, 1999, final rule establishing the current retrofitting 
requirement was a significant regulatory action under section 3(f) of 
Executive Order 12866, the Office of Management and Budget (OMB) does 
not consider this partial suspension of the final rule as a significant 
action.

Regulatory Flexibility Act

    This action will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) because the original requirements did not 
have a significant effect on a substantial number of small entities, 
and this suspension does not change those requirements.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and it has been determined 
that this action does not have significant Federalism implications or 
limit the policymaking discretion of the States. Nothing in this 
document preempts any State law or regulation.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this program.

Unfunded Mandates Reform Act of 1995

    This rule does not impose an unfunded Federal mandate, as defined 
by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.) 
that will result in the expenditure by State, local and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. This action has no 
information collection requirements.

National Environmental Policy Act

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

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

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

Executive Order 12630 (Taking of Private Property)

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

List of Subjects in 49 CFR Part 393

    Highway safety, Motor carriers, Motor vehicle safety, Reporting and 
recordkeeping requirements.

[[Page 30339]]


    For the reasons discussed in the preamble, the FMCSA amends title 
49, Code of Federal Regulations, chapter III, part 393 as follows:

PART 393--[AMENDED]

    1. The authority citation for part 393 is revised to read as 
follows:

    Authority: Sec. 1041(b) of Public Law 102-240, 105 Stat. 1914; 
49 U.S.C. 31136 and 31502; 49 CFR 1.73.


    2. Amend Sec. 393.13 to revise paragraph (a) to read as follows:


Sec. 393.13  Retroreflective sheeting and reflex reflectors, 
requirements for semitrailers and trailers manufactured before December 
1, 1993.

    (a) Applicability. All trailers and semitrailers manufactured prior 
to December 1, 1993, which have an overall width of 2,032 mm (80 
inches) or more and a gross vehicle weight rating of 4,536 kg (10,001 
pounds) or more, except trailers that are manufactured exclusively for 
use as offices or dwellings, pole trailers (as defined in Sec. 390.5 of 
this subchapter), and trailers transported in a driveaway-towaway 
operation, must be equipped with retroreflective sheeting or an array 
of reflex reflectors that meet the requirements of this section. Motor 
carriers operating trailers, other than container chassis (as defined 
in Sec. 393.5), have until June 1, 2001, to comply with the 
requirements of this section. Motor carriers operating container 
chassis have until December 1, 2001, to comply with the requirements of 
this section.
* * * * *

    Issued on: June 1, 2001.
Stephen E. Barber,
Acting Deputy Administrator.
[FR Doc. 01-14287 Filed 6-1-01; 8:45 am]
BILLING CODE 4910-EX-U