[Federal Register Volume 69, Number 39 (Friday, February 27, 2004)]
[Rules and Regulations]
[Pages 9288-9296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4276]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-1998-4369; Notice 1]
RIN 2127-AH75


Federal Motor Vehicle Safety Standards; Rear Impact Guards; 
Notice of Proposed Rulemaking

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document responds to a petition for rulemaking from 
Thieman Tailgates, Inc., concerning the Federal motor vehicle safety 
standard requiring trailers and semitrailers to be equipped with rear 
impact guards. The petitioner asked us to amend the standard so that it 
expressly excludes trailers with rear-mounted liftgates that reside in 
or move through any part of the area specified in the standard for the 
horizontal member of the rear impact guard. Alternatively, the 
petitioner asked us to exclude rear impact guards on those trailers 
from the energy absorption requirements of the equipment standard for 
rear impact guards.

[[Page 9289]]

    We are denying both requests. In lieu of proposing either of the 
requested amendments, we are proposing to specifically exclude trailers 
with ``tuckunder liftgates,'' which consist of a loading platform that 
operates from its stowed position by swinging out to the rear of the 
trailer where it may be hydraulically raised and lowered to load heavy 
deliveries. We are also proposing to amend the definition of ``special 
purpose vehicle'' by adding a more precise description of the cubic 
area at the rear of the trailer in which work-performing equipment must 
reside in or move through while the trailer is in transit. Finally, we 
are proposing to amend the requirements concerning the location of the 
rearmost surface of the rear impact guard.

DATES: You should submit your comments early enough to ensure that 
Docket Management receives them not later than April 27, 2004.

ADDRESSES: You may submit comments (identified by DOT Docket No. NHTSA-
1998-4369) by any of the following methods:
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery : Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 am 
and 5 pm, Monday through Friday, except Federal Holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to http://dms.dot.gov, including any personal information provided. 
Please see the Privacy Act heading under Regulatory Notices.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call Dr. 
William J. J. Liu, Office of Vehicle Safety Standards, (Telephone: 202-
366-2264) (Fax: 202-493-2739).
    For legal issues, you may call Mr. George Feygin, Office of Chief 
Counsel, (Telephone: 202-366-2992) (Fax: 202-366-3820).
    You may send mail to either of these officials at National Highway 
Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 
20590.

SUPPLEMENTARY INFORMATION:

Background

    On January 24, 1996, we published a final rule (61 FR 2003) 
establishing two Federal Motor Vehicle Safety Standards (FMVSSs) to 
address the problem of rear underride crashes, in which a passenger 
car, light truck, or multipurpose vehicle with a Gross Vehicle Weight 
Rating (GVWR) of 4,536 kilograms (10,000 pounds) or less (referred to 
collectively as ``passenger vehicles'') collides with the rear end of a 
trailer or semitrailer (referred to collectively as ``trailers''), and 
the front end of the passenger vehicle slides under (i.e., underrides) 
the rear end of the trailer. Underride occurs when a passenger vehicle 
crashes into the rear end of a large trailer, and the trailer chassis 
is higher than the hood of the passenger vehicle. In the worst cases, 
referred to as passenger compartment intrusion (PCI) crashes, the 
passenger vehicle underrides so far that the rear end of the trailer 
strikes and enters the vehicle's passenger compartment. PCI crashes 
generally result in injuries and fatalities to passenger vehicle 
occupants due to occupant contact with the rear end of the trailer.
    At the publication of the final rule, we estimated that about 
11,551 rear-end crashes with trucks and trailers occurred annually. 
These crashes resulted in approximately 423 passenger vehicle occupant 
fatalities and about 5,030 non-fatal injuries.
    The two standards established by the final rule operate together to 
reduce the number of injuries and fatalities resulting from rear 
underride crashes. The first standard (FMVSS No. 223, Rear Impact 
Guards, or the ``equipment standard'') specifies performance 
requirements that rear impact guards (guards) must meet before they can 
be installed on new trailers. The standard specifies strength 
requirements, and test procedures, that are used to demonstrate 
compliance with the standard. The standard also requires the equipment 
manufacturers to provide instructions on the proper installation of the 
guard, and to permanently label the guard certifying that it meets all 
the performance requirements of the equipment standard.
    The second standard (FMVSS No. 224, Rear Impact Protection, or the 
``vehicle standard'') requires most new trailers with a GVWR of 4,536 
kilograms (10,000 pounds) or more be equipped with a rear impact guard 
meeting the specifications of the equipment standard (FMVSS No. 223). 
The vehicle standard also specifies requirements for the location of 
the guard relative to the rear end of the trailer. A rear impact guard 
must extend outboard to within 100 millimeters (4 inches) of the side 
extremities of the vehicle, but may not extend beyond the side 
extremities. The vertical distance from the ground to the bottom edge 
of the horizontal member of the guard may not exceed 560 mm (22 inches) 
at any point across the full width of the horizontal member. The 
guard's rear surface must be located as close as practical to the rear 
extremity of the vehicle, but no more than 305 mm (12 inches) forward 
of the rear extremity. Finally, the vehicle standard requires that the 
guard be mounted on the trailer in accordance with the instructions 
from the guard manufacturer.
    The vehicle standard does not apply to certain types of vehicles: 
Pole trailers, pulpwood trailers, low chassis vehicles, special purpose 
vehicles, wheels back vehicles, and temporary living quarters. A 
special purpose vehicle is defined as ``a trailer or semitrailer having 
work-performing equipment that, while the vehicle is in transit, 
resides in or moves through the area that could be occupied by the 
horizontal member of the rear underride guard.''
    In response to petitions for reconsideration, we published minor 
amendments to the two standards in the Federal Register on January 26, 
1998 (63 FR 3654). The standards became effective on that date.

Petition

    On June 24, 1998, we received a petition from Thieman Tailgates, 
Inc., requesting that we amend Standard No. 224 by adding the following 
to the definition of special purpose vehicle: ``Vehicles with rear 
mounted liftgates that operate by swinging through the area or reside 
in any part of the area that is designated for the horizontal member of 
the rear impact guard are excluded.''
    Thieman manufactures two basic liftgate designs, tuckunder and 
rail-type,

[[Page 9290]]

both of which can be modified to accommodate a wide variety of trailer 
models and bed heights. Tuckunder liftgates consist of a loading 
platform, which operates from its stowed position by swinging out to 
the rear of the trailer where it may be hydraulically raised and 
lowered to load heavy deliveries. Tuckunder liftgates are stowed under 
the body of the trailer while not in use, thus freeing the rear of the 
trailer for light deliveries and dock operations with elevated bays. 
Rail-type liftgates consist of a loading platform that typically moves 
vertically along two permanently mounted rails on the rear of the 
trailer. With rail-type liftgates, the platform swings up and stows 
along the rear of the trailer body while not in use.
    The petitioner asked us to expressly exclude vehicles equipped with 
tuckunder and rail-type liftgates from the requirements of Standard No. 
224. The petitioner argued that, although the definition of ``special 
purpose vehicle'' is based on the area that should be occupied by the 
horizontal member of the rear impact guard, Standard No. 224 does not 
contain a specific definition of that area. As a result, the petitioner 
claimed, truck equipment dealers are confused as to whether trailers 
with tuckunder and rail-type liftgates are required to be equipped with 
rear impact guards, or fall under the ``special purpose vehicles'' 
exclusion. According to the petitioner, a rear impact guard can be 
installed on some trailers with rail-type liftgates but the liftgate 
would extend beyond the rear impact guard, possibly rendering it 
useless in the event of a rear-end collision. The petitioner claimed 
that if we did not expressly exclude vehicles with tuckunder and rail-
type liftgates from the requirements of Standard No. 224, it would lose 
a significant portion of its annual sales because installers would be 
unable to mount a liftgate on a trailer and still comply with the 
standard.
    If NHTSA denied petitioner's request to expressly exclude trailers 
with tuckunder and rail-type liftgates from the rear impact guard 
requirement, petitioner requested that the agency exclude rear impact 
guards on trailers with liftgates from the energy absorption 
requirements of Standard No. 223. The petitioner argued that the energy 
absorption requirements would be ``nearly impossible'' to meet because 
rear impact guards on trailers with liftgates must be mounted in a 
manner that allows the guard to swing out of the way when the liftgate 
is being operated. Thus, the guard must have numerous parts that are 
required to move freely, causing the guard to ``give'' a few inches 
before deflection starts to occur.

Discussion and Analysis

    On January 8, 1981, we issued a Notice of Proposed Rulemaking 
(NPRM) proposing to adopt requirements to address the problem of rear 
underride collisions (46 FR 2136). In the NPRM, we proposed to exclude 
``special purpose vehicles'' from the requirements. We proposed to 
define a ``special purpose vehicle'' as ``a truck or trailer having 
work-performing equipment that is located at the lower rear of the 
vehicle and whose function would be significantly impaired if an 
underride guard meeting the requirements of this standard were attached 
to the vehicle'' (46 FR 2139).
    Significantly, the proposed definition did not specify that the 
work-performing equipment had to reside in or move through the area 
that could be occupied by the underride guard while the trailer was in 
transit, as Standard No. 224 currently does. This proposed definition 
reflected our concern that incorporation of a guard on some vehicles 
would impair or eliminate the usefulness of rear-mounted, work-
performing equipment. We were concerned that requiring rear impact 
guards on trailers with rear-mounted, work-performing equipment would 
be both impracticable and an undue burden on manufacturers.
    In the 1981 NPRM, we noted our specific concerns regarding the 
compatibility of guards and trailers equipped with rear-mounted 
liftgates. We anticipated that many trailers with rear-mounted 
liftgates would fall within the special purpose vehicle exclusion. 
However, we desired to further study this issue and encouraged 
interested parties to comment on it.
    We received comments from a number of manufacturers and operators 
of trailers with rear-mounted liftgates, recommending that their 
trailers be expressly excluded from the proposed rule by including them 
in the definition of ``special purpose vehicle.'' Several liftgate 
manufacturers recommended that trailers with rear-mounted liftgates be 
explicitly excluded from the rule because most liftgates are installed 
by small businesses after the trailer leaves the trailer manufacturer. 
They said that it would be very burdensome for small businesses if they 
had to design liftgates around the guard configuration requirements. 
Other liftgate manufacturers claimed that guards positioned as required 
in the final rule would prevent the installation of liftgates. However, 
one liftgate manufacturer stated that the rail-type liftgate is the 
most commonly used type of liftgate, and that its liftgate would be 
compatible with the proposed guard requirements.
    The National Truck Equipment Association (NTEA) commented on the 
1981 NPRM that trailers equipped with liftgates make up the largest 
group of special purpose vehicles. The NTEA estimated that 2,500 of the 
150,000 trailers built each year are equipped with rear-mounted 
liftgates, comprising only 1.7 percent of the market. The NTEA assured 
us that no trailer manufacturer would install liftgates just to 
manipulate the special purpose vehicle exclusion and evade the guard 
requirement because liftgates, on average, cost $6,000 each (1981 
estimate), much more than guards.
    In the January 24, 1996 final rule establishing Standard Nos. 223 
and 224, we concurred with the observations made by the liftgate 
manufacturers regarding the complexities associated with the 
installation of rear impact guards on trailers with rear-mounted 
liftgates. We also agreed that the rear impact guard may interfere with 
the operation of some rear-mounted liftgates. However, we did not think 
it was necessary to expressly exclude all trailers equipped with 
liftgates, since the comments indicated that guards were compatible 
with some rear-mounted liftgates (61 FR 2022).
    Consequently, we attempted to define ``special purpose vehicle'' to 
make it clear that trailers with rear-mounted liftgates that operate by 
swinging through the area that is designated for the rear impact guard 
would be excluded. In fact, we stated that ``vehicles equipped with 
tuckunder and other types of incompatible liftgates are excluded,'' but 
vehicles with liftgates that would be compatible with rear impact 
guards are not.\1\
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    \1\ As stated above, one commentor to the NPRM (Anthony 
Liftgates) stated that its rail-type liftgate would be compatible 
with a rear impact guard. We have not received any evidence of any 
specific rail-type liftgates that are not compatible with a guard. 
Great Dane Trailer Co. installs guards on its trailers equipped with 
rail-type liftgates by notching the guard so that the rails can 
slide through the notches when they move down (61 FR 2022).
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    We believed that if rear-mounted, work-performing equipment, 
including a liftgate, were detached or stowed out of the area occupied 
by the rear impact guard while the trailer was in transit, a guard 
would not impair the equipment. As a result, in the final rule we 
revised the definition of ``special purpose vehicle'' to require that 
the work-performing equipment reside in or, in order to perform its 
function, move through the area designated for the rear impact guard 
while the vehicle is in transit. We stated:


[[Page 9291]]


    All that is required to confirm the applicability of the 
exclusion is a demonstration that the work-performing equipment, 
while the vehicle is in transit, resides in the area defined by 
S5.1.1 through S5.1.3 as the guard's horizontal member or passes 
through that area to perform its function. Therefore, the definition 
of special purpose vehicle in the rule has been revised to reflect 
that the foundation of the special purpose vehicle exclusion is the 
presence of work-performing equipment that resides in or, to perform 
its function, moves through the area designated for the underride 
guard while the vehicle is in transit.

(61 FR 2023).
    On April 21, 1998, the NTEA sent us a letter saying that the 
standard is confusing in that it does not specify the area that could 
be occupied by the horizontal member of the rear impact guard for 
purposes of determining whether a trailer meets the definition of a 
``special purpose vehicle,'' and thus is excluded from the standard. On 
September 9, 1998, we responded with an interpretation letter stating 
that the area that could be occupied by the horizontal member of the 
rear impact guard (the ``guard zone'') is a three-dimensional space 
defined as follows:

    1. Width. The horizontal member may extend laterally as far as 
the side extremities of the trailer as defined in S4 of Standard No. 
224.
    2. Height. The bottom edge of the horizontal member must be no 
more than 560 mm above the ground. This is not a minimum guard 
height; thus, the bottom of the horizontal member theoretically may 
be as low as the ground, although such a guard would be impractical. 
The horizontal member must have a vertical height of at least 100 
mm. This is not a maximum vertical height; thus, the top of the 
horizontal member theoretically may extend upward to the bottom of 
the trailer bed. This combination results in a vertical area that 
extends from the ground upward to a horizontal plane tangent to the 
bottom of the trailer.
    3. Depth. The rearward boundary of the guard zone is the 
transverse vertical plane tangent to the rear extremity of the 
trailer as defined in S4 of Standard No. 224. The forward boundary 
of the guard zone is the transverse vertical plane 305 mm forward of 
that plane.

    We issued this interpretation after we received the Thieman 
petition. However, we do not believe the interpretation addresses the 
issues raised in the Thieman petition. Thus, we considered several 
alternative solutions.

Alternative Solutions

    First, as was suggested by petitioners, we considered expressly 
excluding all trailers with rear-mounted liftgates from the 
requirements of Standard No. 224. However, we rejected this suggestion 
for the same reason we rejected it in the final rule: Some liftgate 
designs clearly are compatible with rear impact guards. If we excluded 
all trailers equipped with rear-mounted liftgates, some trailers that 
could and should be equipped with guards would not be required to have 
them. That result is not consistent with the purpose of Standard No. 
224, i.e., improving safety by requiring guards on as many trailers as 
possible without overburdening small manufacturers or impairing the 
usefulness of rear-mounted, work-performing equipment.
    Second, we considered retaining the ``while in transit'' qualifying 
language in the definition of ``special purpose vehicle'' and the 
definition of ``guard zone'' as stated in the September 9, 1998, 
interpretation letter to the NTEA. This alternative allows us to easily 
determine whether a trailer equipped with a liftgate is required to 
have a guard. Specifically, if the liftgate stows completely above the 
bottom of the trailer while the trailer is in transit (i.e., most rail-
type liftgate designs), the trailer is required to have a guard. If the 
liftgate stows below the bottom of the trailer while the trailer is in 
transit (i.e., most tuckunder liftgate designs), it is not required to 
have a guard.
    The second alternative bears the same disadvantages as the 
alternative proposed by Thieman, as it does not result in a logical 
application of Standard No. 224. Some trailers capable of accommodating 
a compliant rear impact guard would not be required to have a guard. 
Conversely, other trailers having significant design constrictions that 
make incorporation of a compliant guard impracticable because of the 
operation of rear-mounted, work-performing equipment would nevertheless 
be required to have a guard.
    Third, we considered simply deleting the ``while in transit'' 
qualifying language in the definition of a ``special purpose vehicle.'' 
The advantage of this alternative is simplicity of enforcement. All 
trailers equipped with liftgates that reside in or move through the 
guard zone would not be required to have a guard. The disadvantage of 
this alternative, again, is an illogical application of Standard No. 
224. Some trailers capable of accommodating a compliant rear impact 
guard would not be required to have a guard. As noted above, one 
liftgate manufacturer stated in comments on the 1981 NPRM that the 
rail-type liftgate is the most commonly used type of liftgate, and that 
its rail-type liftgate would be compatible with the proposed rear 
impact guard requirements.
    Fourth, we considered expanding the definition of ``special purpose 
vehicle'' by replacing the ``while in transit'' qualifying language 
with a specific description of the cubic area in which the work-
performing equipment would have to reside or move through for a trailer 
to qualify as a special purpose vehicle. The definition of this area 
would be similar to the definition provided in the September 9, 1998, 
interpretation letter to the NTEA.
    One advantage of this alternative is that it is objective. If a 
trailer has work-performing equipment that resides in or moves through 
the defined area, it is a special purpose vehicle excluded from 
Standard No. 224. If a trailer has work-performing equipment that does 
not reside in or move through the defined area, it is not a special 
purpose vehicle and must comply with Standard No. 224, provided that no 
other exclusion applies. Another advantage of this alternative is that 
it is easily enforceable.
    However, we are concerned that this alternative would exclude 
trailers with rail-type liftgates that are compatible with guards. If 
any part of the work-performing equipment, including a simple strut or 
support, resided in or moved through the defined area, the trailer 
would be excluded from the guard requirements. As previously stated, we 
have evidence that guards can be installed on trailers with rail-type 
liftgates without interfering with the operation of the liftgate.
    Finally, we considered expressly excluding trailers with tuckunder 
liftgates from the standard and amending the definition of ``special 
purpose vehicle'' to alleviate any confusion with respect to which 
vehicles qualify for the special purpose vehicle exclusion. The 
advantage of this alternative is that it follows our original intent as 
stated in the final rule establishing Standards No. 223 and 224. In the 
final rule, we stated that ``vehicles equipped with tuckunder and other 
types of incompatible liftgates are excluded,'' but vehicles with 
liftgates that would be compatible with rear impact guards are not (61 
FR 2022). This alternative allows us to specifically exclude only 
trailers with tuckunder liftgates, and not trailers with rail-type 
liftgates that can accommodate a rear impact guard.
    To further clarify the ``special purpose vehicle'' exclusion, the 
definition of the ``special purpose vehicle'' would be revised to 
exclude trailers with other types of rear-mounted, work-performing 
equipment that would be incompatible with a guard. Specifically, the 
new definition of the ``special purpose

[[Page 9292]]

vehicle'' would include a more precise description of the cubic area at 
the rear of the trailer in which the work-performing equipment must 
reside in, or move through, while the trailer is in transit.
    We believe that this fifth alternative results in the most logical 
application of Standard No. 224. This alternative best addresses our 
safety concerns associated with rear underride collisions by assuring 
that trailers capable of accommodating rear impact guards are not 
excluded from the requirements of FMVSS No. 224. Further, specific 
exclusion of trailers with tuckunder liftgates will not impair the 
usefulness of such trailers or overburden small manufacturers.
    As previously stated, we believe that trailers equipped with 
tuckunder liftgates should be excluded from the FMVSS No. 224 because a 
guard would interfere with the operation of the liftgate. We note that 
since tuckunder liftgates are stowed under the body of the trailer 
while the trailer is in transit, they may provide some protection from 
underride in the event of a crash. These arguments do not apply to 
trailers equipped with rail-type liftgates. A guard does not interfere 
with the operation of the rail-type liftgate. Rail-type liftgates offer 
no protection from underride in the event of a crash. Thus, we believe 
trailers equipped with a tuckunder liftgate should be excluded from the 
standard, while trailers equipped with a rail-type liftgate should not.

Proposed Rule

    Accordingly, we are proposing to exclude trailers equipped with 
tuckunder liftgates from the standard. The application section of 
Standard No. 224 would be revised to read as follows:

    S3. Application. This standard applies to trailers and 
semitrailers with a GVWR of 4,536 kg or more. The standard does not 
apply to pole trailers, pulpwood trailers, low chassis vehicles, 
special purpose vehicles, wheels back vehicles, vehicles equipped 
with tuckunder liftgates, or temporary living quarters as defined in 
49 CFR 523.2 * * *

    A definition of ``tuckunder liftgate'' would be added to S4 as 
follows:

    Tuckunder liftgate means an item of work-performing equipment 
consisting of a loading platform that operates from its stowed 
position by swinging out to the rear of the vehicle where it may be 
hydraulically raised and lowered and, while the vehicle is in 
transit, resides completely between the unaltered vehicle's rear-
most axle and rear extremity, as defined in S4 of this section, and 
beneath a horizontal plane 1,500 mm from the ground.

    NHTSA requests comments on the tuckunder liftgate definition and 
the height requirement.
    The definition of ``special purpose vehicle'' would be revised to 
read as follows:

    Special purpose vehicle means a trailer or semitrailer having 
work-performing equipment that, while the vehicle is in transit, 
resides in or moves through any portion of the cubic area extending: 
(1) Vertically from the ground to a horizontal plane 660 mm above 
the ground; (2) laterally the full width of the trailer, determined 
by the trailer's side extremities as defined in S4 of this section; 
and (3) from the rear extremity of the trailer as defined in S4 of 
this section to a transverse vertical plane 305 mm forward of the 
rear extremity of the trailer.

    The cubic area (as defined in this proposal) in which work-
performing equipment would have to reside in or move through for a 
trailer to qualify as a special purpose vehicle differs from the area 
in which the horizontal member of a rear impact guard must reside, as 
defined by S5.1.1 through S5.1.3 of the current Standard No. 224, if a 
trailer is required to have a guard. Those paragraphs read, in relevant 
part:

    S5.1.1 Guard width. The outermost surfaces of the horizontal 
member of the guard shall extend outboard to within 100 mm of the 
longitudinal vertical planes that are tangent to the side 
extremities of the vehicle, but shall not extend outboard of those 
planes. * * *
    S5.1.2 Guard height. The vertical distance between the bottom 
edge of the horizontal member of the guard and the ground shall not 
exceed 560 mm at any point across the full width of the member. * * 
*
    S5.1.3 Guard rear surface. At any height 560 mm or more above 
the ground, the rearmost surface of the horizontal member of the 
guard shall be located as close as practical to a transverse 
vertical plane tangent to the rear extremity of the vehicle, but no 
more than 305 mm forward of that plane. Notwithstanding this 
requirement, the horizontal member may extend rearward of the plane. 
* * *

    In this proposal, the cubic area which work-performing equipment 
would have to reside in or move through for a trailer to qualify as a 
special purpose vehicle extends vertically from the ground to a 
horizontal plane 660 mm (26 inches) above the ground, laterally to the 
side extremities of the trailer, and from the rear extremity of the 
trailer to a transverse vertical plane 305 mm (12 inches) forward of 
the rear extremity of the trailer. The 660 mm (26 inches) vertical 
requirement incorporates the 560 mm (22 inches) guard height 
requirement in S5.1.2 and the 100 mm (4 inches) minimum guard vertical 
height requirement in S5.1 of Standard No. 223. Thus, the cubic area in 
this proposal is larger horizontally and vertically than the cubic area 
defined by S5.1.1 through S5.1.3.
    Paragraphs S5.1.1 through S5.1.3 define the minimum and the maximum 
guard dimensions as required by Standard No. 224, while the proposed 
rule defines the cubic area which a trailer's work-performing equipment 
would have to reside in or move through, or to interfere with the area 
where the guard would reside, in order for the trailer to be considered 
a special purpose vehicle.
    The proposed cubic area for the special purpose vehicle is also 
different from the ``guard zone'' defined in our September 9, 1998, 
interpretation letter to the NTEA. The difference between the current 
and the proposed zones is in the height of the cubic area. Our proposal 
would define the vertical area as extending from the ground to a 
horizontal plane 660 mm (26 inches) above the ground, while our 
interpretation letter defined the vertical area as extending from the 
ground to a horizontal plane tangent to the bottom of the trailer. We 
believe the 660 mm height requirement is necessary for safety reasons. 
If the cubic area extended to the bottom of the trailer, a trailer with 
any portion of the work-performing equipment located just underneath 
the bottom of the trailer would not be required to have a guard. For 
example, a trailer with a rail-type liftgate would be excluded from the 
requirements of the standard if only a small portion of it were mounted 
at a minimal distance below the trailer bed. This could result in a 
trailer that has no necessary structural members to limit underride. 
This would be contrary to the purpose of the standard. Thus, we are 
proposing that the cubic area extend vertically from the ground to a 
horizontal plane 660 mm (26 inches) above the ground.
    In summary, if we use the term ``guard zone'' as a common 
comparison parameter; the proposed guard zone (the cubic area) to 
qualify as a special purpose vehicle is larger than the allowed guard 
zone in the current Standard No. 224 (which is the smallest allowable), 
and is smaller than the defined guard zone in NHTSA's September 9, 1998 
interpretation letter to the NTEA (which is, theoretically, the 
largest).
    We also note that rail-type liftgates may cause confusion as to the 
where the rear extremity of the trailer is located--at the rear of the 
trailer itself or the rear of the rail-type liftgate. This is 
significant because Standard No. 224 requires the guard to be located 
no more than 12 inches forward of the rear

[[Page 9293]]

extremity of the trailer. ``Rear extremity'' is defined as:

    The rearmost point on a vehicle that is above a horizontal plane 
located 560 mm above the ground and below a horizontal plane located 
1,900 mm above the ground when the vehicle is configured as 
specified in S5.1 of this section and when the vehicle's cargo 
doors, tailgate, or other permanent structures are positioned as 
they normally are when the vehicle is in motion. Nonstructural 
protrusions such as taillights, rubber bumpers, hinges and latches 
are excluded from the determination of the rearmost point.

    The common attributes among the examples of nonstructural 
protrusions listed in the definition are that they are relatively small 
and localized and would not have a major impact on a colliding 
passenger vehicle. Rail-type liftgates, in contrast, are neither small 
nor localized, and they would be expected to have a major impact on a 
colliding passenger vehicle. Thus, we consider rail-type liftgates to 
be part of the trailer structure. As such, the rear of the rail-type 
liftgate is the rear extremity of the trailer, and the guard on such 
trailers must be no more than 12 inches forward of the rear of the 
rail-type liftgate.
    We note that some rail-type liftgates may be more than 12 inches 
deep. On trailers equipped with such liftgates, the guard would have to 
be installed either on the liftgate or on the trailer so that it 
extended rearward to within 12 inches of the rear of the liftgate. We 
request comments on whether we should revise the definition of ``rear 
extremity'' to accommodate trailers equipped with rail-type liftgates 
that are more than 12 inches deep.
    We have received anecdotal evidence of rail-type liftgates being 
installed on trailers already equipped with a compliant guard. 
According to these reports, the guard is removed so that the liftgate 
can be installed.
    This is a violation of the agency's ``make inoperative'' provision 
(49 U.S.C. `` 30122). After the first sale of a vehicle, manufacturers, 
distributors, dealers, and repair businesses are prohibited from 
``knowingly making inoperative'' any device or element of design 
installed on or in a motor vehicle in compliance with an applicable 
standard. In general, the ``make inoperative'' prohibition requires 
businesses that modify motor vehicles to ensure that they do not 
remove, disconnect, or degrade the performance of safety equipment 
installed in compliance with an applicable standard. Violations of this 
prohibition are punishable by civil penalties of up to $5,000 per 
violation.
    We added this discussion to ensure that liftgate manufacturers who 
install rail-type liftgates on trailers already equipped with a 
compliant rear impact guard do not remove the guard under the mistaken 
assumption that the addition of the rail-type liftgate transforms the 
trailer into a ``special purpose vehicle'' excluded from Standard No. 
224. As currently written, Standard No. 224 does not exclude trailers 
equipped with rail-type liftgates. Moreover, nothing we are proposing 
in this document would exclude such trailers. They must be equipped 
with a compliant rear impact guard.
    Finally, although not directly related to the subject matter of the 
Thieman petition, we believe that some ambiguous language exists in 
paragraph S5.1.3 of Standard No. 224, and we are proposing to clarify 
it. S5.1.3 reads, in relevant part:

    S5.1.3 Guard rear surface. At any height 560 mm or more above 
the ground, the rearmost surface of the horizontal member of the 
guard shall be located as close as practical to a transverse 
vertical plane tangent to the rear extremity of the vehicle, but no 
more than 305 mm forward of that plane.

    Although it has been interpreted to apply to all guards, the 
language of this requirement indicates that it applies only to the 
portion of the guard rear surface that is at a height greater than 560 
mm (22 inches) from the ground and, therefore, would not be applicable 
if the guard rear surface were completely below that height. To correct 
this, we are proposing to remove the introductory clause from the first 
sentence. The first sentence of S5.1.3 would be revised to read as 
follows:

    S5.1.3 Guard rear surface. The rearmost surface of the 
horizontal member of the guard shall be located as close as 
practical to a transverse vertical plane tangent to the rear 
extremity of the vehicle, but no more than 305 mm forward of that 
plane.

    With respect to petitioner's request that we exclude guards on 
trailers equipped with rear-mounted liftgates from the energy 
absorption requirements of Standard No. 223, the agency believes that 
the proposed revisions to Standard No. 224 would, in most cases, solve 
the problem articulated by the petitioner. Under these revisions, 
trailers equipped with tuckunder liftgates and other types of rear-
mounted, work-performing equipment that would be incompatible with a 
guard would be excluded from the guard requirement. Thus, the agency is 
denying the petitioner's request to exclude trailers equipped with 
rear-mounted liftgates from the energy absorption requirements of 
Standard No. 223.

Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to Office of 
Management and Budget (OMB) review and to the requirements of the 
Executive Order. The Order defines a ``significant regulatory action'' 
as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    We have considered the impact of this rulemaking action under E.O. 
12866 and the Department of Transportation's regulatory policies and 
procedures. We have tentatively concluded that this rulemaking action 
would not create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency. The Federal Motor Carrier 
Safety Administration requires rear impact guards on trailers and 
semitrailers with a gross vehicle weight rating of 4,536 kilograms 
(10,000 pounds) or more manufactured on or after January 26, 1998 (49 
CFR 393.86). However, that standard incorporates Standard Nos. 223 and 
224 by reference, and also excludes ``special purpose vehicles'' as 
defined in Standard No. 224. Thus, we believe that this rulemaking 
action would not create a serious inconsistency with the FMCSA rear 
impact guard standard. Moreover, FMCSA has advised NHTSA that it will 
consider amendments to 49 CFR 393.86 and any relevant definitions under 
49 CFR 393.5, in order to ensure consistency between 49 CFR 393.86 and 
Standard No. 224.
    We have also tentatively determined that this rulemaking action 
would not alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof. This rulemaking

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action has no such effects. We have tentatively concluded that this 
rulemaking action would not raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.
    Finally, we do not believe that this rulemaking action would have 
an annual effect on the economy of $100 million or more, or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or Tribal governments or communities. We are 
proposing to specifically exclude trailers with tuckunder liftgates and 
clarify the definition of ``special purpose vehicle'' so that trailers 
with rear-mounted, work-performing equipment that would not be 
compatible with a guard would be excluded from Standard No. 224.
    In comments to the Supplemental Notice of Proposed Rulemaking, 
published in the Federal Register January 3, 1992 (57 FR 252), the NTEA 
and liftgate manufacturers estimated that 2,500 of the 150,000 trailers 
built each year are equipped with rear-mounted liftgates, comprising 
less than 2 percent of the number of new trailers manufactured 
annually. We believe that the changes proposed in this document would 
affect only trailers equipped with rear-mounted liftgates. However, if 
commenters believe that this proposal would exclude trailers other than 
trailers equipped with rear-mounted liftgates, they should inform us in 
their comments to this notice.
    We also believe that the proposed changes may exclude more trailers 
equipped with rear-mounted liftgates from Standard No. 224. In its 
petition, Thieman stated that truck equipment dealers are confused as 
to whether trailers with tuckunder and rail-type liftgates are required 
to be equipped with a guard or are excluded from the standard as 
special purpose vehicles. We assume this means that some such trailers 
are being equipped with guards. Under the proposed changes, all 
trailers with tuckunder liftgates would be excluded. Thus, this 
rulemaking action should not require additional expenditures by 
manufacturers of trailers with rear-mounted, work-performing equipment. 
However, if these manufacturers disagree with this tentative 
conclusion, they should address it in their comments to this notice.
    We believe that adding a definition of the cubic area which work-
performing equipment must move through or reside in for a trailer to 
meet the definition of ``special purpose vehicle'' would merely clarify 
this exclusion. We believe that this proposal would not have a 
substantive effect on the determination of whether a trailer qualifies 
as a special purpose vehicle and would not impose any additional cost 
burden on manufacturers of trailers equipped with work-performing 
equipment. If commenters disagree with any of these tentative 
conclusions, they should address them in their comments to this notice.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
The Small Business Administration's regulations at 13 CFR part 121 
define a small business, in part, as a business entity ``which operates 
primarily within the United States.'' (13 CFR 121.105(a)). No 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule will not have a 
significant economic impact on a substantial number of small entities.
    We have considered the effects of this rulemaking action under the 
Regulatory Flexibility Act. Many of the businesses that manufacture 
trailers equipped with work-performing equipment are considered small 
businesses. However, as explained above in the discussion under E.O. 
12866, we believe that this proposal will eliminate problems these 
manufacturers have encountered in complying with Standard No. 224 and 
will not impose any additional costs on them. Therefore, I hereby 
certify that this proposal will not have a significant economic impact 
on a substantial number of small entities.

C. National Environmental Policy Act

    We have analyzed this rulemaking action for the purposes of the 
National Environmental Policy Act. We have determined that 
implementation of this action would not have any significant impact on 
the quality of the human environment.

D. Executive Order 13132 (Federalism)

    Executive Order 13132 requires us to develop an accountable process 
to ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' Under 
Executive Order 13132, we may not issue a regulation with federalism 
implications, that imposes substantial direct compliance costs, and 
that is not required by statute, unless the Federal government provides 
the funds necessary to pay the direct compliance costs incurred by 
State and local governments, we consult with State and local 
governments, or we consult with State and local officials early in the 
process of developing the proposed regulation. We also may not issue a 
regulation with federalism implications and that preempts State law 
unless we consult with State and local officials early in the process 
of developing the proposed regulation.
    We have analyzed this rulemaking action in accordance with the 
principles and criteria set forth in Executive Order 13132. We have 
determined that the amendment does not have sufficient federalism 
implications to warrant the preparation of a federalism assessment.

E. Civil Justice Reform

    This proposed amendment would 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, except to the extent that the state requirement 
imposes a higher level of performance and applies only to vehicles 
procured for the State's use. 49 U.S.C. 30161 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.

F. Paperwork Reduction Act

    This proposed rule does not have any requirements that would be 
considered information collection requirements as

[[Page 9295]]

defined by the Office of Management and Budget in 5 CFR part 1320.

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) 
directs us to use voluntary consensus standards in our regulatory 
activities unless doing so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies, such as the Society of Automotive 
Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, 
explanations when we decide not to use available and applicable 
voluntary consensus standards.
    There are no voluntary consensus standards available at this time. 
However, we will consider any such standards when they become 
available.

H. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 
agencies to prepare a written assessment of the costs, benefits, and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million annually. Because this proposed rule would not have a $100 
million effect, no Unfunded Mandates assessment has been prepared.

I. Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. Application of the principles of plain language 
includes consideration of the following questions:

--Have we organized the material to suit the public's needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that is not clear?
--Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make this rulemaking easier to understand?

    If you have any responses to these questions, please include them 
in your comments on this NPRM.

J. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) 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. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

Comments

How Do I Prepare and Submit Comments?

    Your comments must be written and in English. To ensure that your 
comments are correctly filed in the Docket, please include the docket 
number of this document in your comments.
    Your comments must not be more than 15 pages long (49 CFR 553.21). 
We established this limit to encourage you to write your primary 
comments in a concise fashion. However, you may attach necessary 
additional documents to your comments. There is no limit on the length 
of the attachments.
    Please submit two copies of your comments, including the 
attachments, to Docket Management at the address given above under 
ADDRESSES.
    You may also submit your comments to the docket electronically by 
logging onto the Dockets Management System Web site at http://dms.dot.gov. Click on ``Help & Information'' or ``Help/Info'' to obtain 
instructions for filing the document electronically.
    Please note, if you are submitting comments electronically as a PDF 
(Adobe) file, we ask that the documents submitted be scanned using 
Optical Character Recognition (OCR) process, thus allowing the agency 
to search and copy certain portions of your submissions.

How Can I Be Sure That My Comments Were Received?

    If you wish Docket Management to notify you upon its receipt of 
your comments, enclose a self-addressed, stamped postcard in the 
envelope containing your comments. Upon receiving your comments, Docket 
Management will return the postcard by mail.

How Do I Submit Confidential Business Information?

    If you wish to submit any information under a claim of 
confidentiality, you should submit three copies of your complete 
submission, including the information you claim to be confidential 
business information, to the Chief Counsel, NHTSA, at the address given 
above under FOR FURTHER INFORMATION CONTACT. In addition, you should 
submit two copies, from which you have deleted the claimed confidential 
business information, to Docket Management at the address given above 
under ADDRESSES. When you send a comment containing information claimed 
to be confidential business information, you should include a cover 
letter setting forth the information specified in our confidential 
business information regulation. (49 CFR part 512.)

Will the Agency Consider Late Comments?

    We will consider all comments that Docket Management receives 
before the close of business on the comment closing date indicated 
above under DATES. To the extent possible, we will also consider 
comments that Docket Management receives after that date. If Docket 
Management receives a comment too late for us to consider it in 
developing a final rule (assuming that one is issued), we will consider 
that comment as an informal suggestion for future rulemaking action.

How Can I Read the Comments Submitted by Other People?

    You may read the comments received by Docket Management at the 
address given above under ADDRESSES. The hours of the Docket are 
indicated above in the same location.
    You may also see the comments on the Internet. To read the comments 
on the Internet, take the following steps:
    1. Go to the Docket Management System (DMS) Web page of the 
Department of Transportation (http://dms.dot.gov/).
    2. On that page, click on ``search.''
    3. On the next page (http://dms.dot.gov/search/), type in the four-
digit docket number shown at the beginning of this document. Example: 
If the docket number were ``NHTSA-1998-1234,'' you would type ``1234.'' 
After typing the docket number, click on ``search.''
    4. On the next page, which contains docket summary information for 
the docket you selected, click on the desired comments. You may 
download the comments. Although the comments are imaged documents, 
instead of word processing documents, the ``PDF'' versions of the 
documents are word searchable.

[[Page 9296]]

    Please note that even after the comment closing date, we will 
continue to file relevant information in the Docket as it becomes 
available. Further, some people may submit late comments. Accordingly, 
we recommend that you periodically check the Docket for new material.

List of Subjects in 49 CFR Part 571

    Imports, Motor vehicle safety, Motor vehicles, Rubber products, 
Tires.

    In consideration of the foregoing, NHTSA proposes to amend part 571 
as follows:

PART 571--[AMENDED]

    1. The authority citation for part 571 would continue to read as 
follows:

    Authority: 49 U.S.C. 322, 21411, 21415, 21417, and 21466; 
delegation of authority at 49 CFR 1.50.

    2. Section 571.224 would be amended by:
    a. Revising paragraph S3;
    b. Revising the definition for ``Special purpose vehicle'' and 
adding a new definition for ``tuckunder liftgate'' in paragraph S4; and
    c. Revising the first sentence of paragraph S5.1.3.
    The additions and revisions read as follows:


Sec.  571.224  Standard No. 224; Rear impact protection.

* * * * *
    S3. Application. This standard applies to trailers and semitrailers 
with a GVWR of 4,536 kg or more. The standard does not apply to pole 
trailers, pulpwood trailers, low chassis vehicles, special purpose 
vehicles, wheels back vehicles, vehicles equipped with tuckunder 
liftgates, or temporary living quarters as defined in 49 CFR 523.2.
* * * * *
    S4. Special purpose vehicle means a trailer or semitrailer having 
work-performing equipment that, while the vehicle is in transit, 
resides in or moves through any portion of the cubic area extending: 
(1) Vertically from the ground to a horizontal plane 660 mm above the 
ground; (2) laterally the full width of the trailer, determined by the 
trailer's side extremities as defined in S4 of this section; and (3) 
from the rear extremity of the trailer as defined in S4 of this section 
to a transverse vertical plane 305 mm forward of the rear extremity of 
the trailer.
    Tuckunder liftgate means an item of work-performing equipment 
consisting of a loading platform that operates from its stowed position 
by swinging out to the rear of the vehicle where it may be 
hydraulically raised and lowered and, while the vehicle is in transit, 
resides completely between the unaltered vehicle's rear-most axle and 
rear extremity, as defined in S4 of this section, and beneath a 
horizontal plane 1,500 mm from the ground.
* * * * *
    S5.1.3 Guard rear surface. The rearmost surface of the horizontal 
member of the guard shall be located as close as practical to a 
transverse vertical plane tangent to the rear extremity of the vehicle, 
but no more than 305 mm forward of that plane. * * *
* * * * *

    Issued on: February 23, 2004.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. 04-4276 Filed 2-26-04; 8:45 am]
BILLING CODE 4910-59-P