[Federal Register Volume 69, Number 223 (Friday, November 19, 2004)]
[Rules and Regulations]
[Pages 67663-67668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25703]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2004-19033]
RIN 2127-AI56


Federal Motor Vehicle Safety Standards; Rear Impact Guards; Final 
Rule

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

ACTION: Final rule.

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SUMMARY: This document amends the Federal motor vehicle safety standard 
No. 224, ``Rear impact protection'' (FMVSS No. 224), to exclude road 
construction controlled horizontal discharge semitrailers (RCC 
horizontal discharge trailers) from the requirements of the standard. 
The RCC horizontal discharge trailers are used in the road construction 
industry to deliver asphalt to construction sites and gradually 
discharge asphalt mix into the paving machines overlaying the road 
surface. The agency has concluded that installation of the rear impact 
guards, as required by FMVSS No. 224, on RCC horizontal discharge 
trailers would interfere with their intended function and is therefore 
impracticable due to the unique design and purpose of these vehicles.

DATES: Effective Date: This rule is effective December 20, 2004.
    Petitions: Petitions for reconsideration must be received by 
January 3, 2005.

ADDRESSES: Petitions for reconsideration should refer to DOT Docket No. 
NHTSA-2004-19033 and be submitted to: Administrator, Room 5220, 
National Highway Traffic Safety Administration, 400 7th Street, SW., 
Washington, DC 20590.
    Please see the Privacy Act heading under Regulatory Notices.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call 
Michael Huntley, Office of Vehicle Safety Standards, (Telephone: 202-
366-0029) (Fax: 202-493-2739) (E-Mail: [email protected]).
    For legal issues, you may call Mr. George Feygin, Office of Chief 
Counsel, (Telephone: 202-366-2992) (Fax: 202-366-3820) (E-Mail: 
[email protected]).
    You may send mail to either of these officials at: National Highway 
Traffic Safety Administration, 400 7th Street, SW., Washington, DC 
20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Notice of Proposed Rulemaking
III. Summary of Comments
IV. Agency Analysis and Decision
    A. Impracticability
    B. Alternative Methods of Compliance and Alternative Vehicles
    1. Special purpose vehicles and wheels back trailers
    2. Use of dump trucks instead of RCC Horizontal discharge 
trailers
    C. Safety Consequences
    D. Statutory Mandate to Ensure Practicability of Safety 
Standards
    E. Request to Exempt Gravity Feed Dump Trailers
V. Estimated Costs and Benefits
VI. Rulemaking Analyses and Notices

I. Background

    Underride occurs when a light vehicle, such as a passenger car, 
crashes into the rear end of a heavy truck that has a chassis higher 
than the hood of the light vehicle. In certain instances, the light 
vehicle slides under or ``underrides'' the rear end of the heavy 
vehicle such that the rear end of the trailer strikes and enters the 
passenger compartment of the light vehicle, resulting in passenger 
compartment intrusion (PCI). PCI crashes can result in severe injuries 
and fatalities to the light vehicle occupants due to occupant contact 
with the rear end of the heavy truck.
    In an attempt to reduce the frequency and severity of underride 
collisions, NHTSA issued FMVSS No. 224.\1\ The standard requires that 
all new trailers and semitrailers with a Gross Vehicle Weight Rating 
(GVWR) of 10,000 lbs or more be equipped with a rear impact guard 
(underride guard). The underride guard is attached to the rear of the 
trailer (within 12 inches [305 mm] of the rear extremity of the 
vehicle) and acts to prevent the light vehicle from sliding under the 
trailer chassis.
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    \1\ See 61 FR 2004, January 24, 1996.
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    The RCC horizontal discharge trailer is a unique piece of equipment 
used in the road construction industry to deliver asphalt and other 
building materials to a construction site. The trailer is equipped with 
a mechanical drive and a horizontal conveyor, which gradually 
discharges asphalt mix into a paving machine overlaying the road 
surface with asphalt material.
    With respect to FMVSS No. 224, the RCC horizontal discharge 
trailer's most unique and technologically problematic feature stems 
from the fact that the rear of the trailer is designed to connect with 
and latch onto various paving machines. Typically, the paving machine 
attaches to the rear axle of the RCC horizontal discharge trailer via 
hydraulic arms, and the edge of the trailer's conveyor belt extends 
over the paving machine opening. An underride guard required by FMVSS 
No. 224 would prevent the RCC horizontal discharge trailer from 
effectively connecting with a paving machine.
    Connection with paving equipment is critical to the road 
construction process as it allows the RCC horizontal discharge trailer 
to deposit asphalt mix directly into the paving machine hopper. This 
method also allows for a more controlled off-loading, as compared to a 
dump trailer, which is the other type of vehicle capable of delivering 
asphalt mix to road construction sites.\2\
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    \2\ Because the horizontal discharge trailers do not rise to 
unload their contents like steel end dump trailers, they can be used 
on uneven terrain or where overhead obstructions such as bridges and 
power lines completely prevent the use of dump trailers.
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    This rulemaking was initiated by a joint petition on behalf of Dan 
Hill & Associates, Inc. (Dan Hill), and Red River Manufacturing, Inc., 
a Division of Trail King Industries, Inc. (Red River).\3\ Dan Hill and 
Red River are manufacturers of RCC horizontal discharge trailers. Their 
petition requested that the agency amend FMVSS No. 224 to ``exclude 
construction controlled horizontal discharge semitrailers from the 
scope of the standard.'' Since the effective date of the standard,\4\ 
Dan Hill and Red River have each received a temporary exemption from 
the requirements of FMVSS No. 224, in part because of the 
impracticability of installing underride guards on RCC horizontal 
discharge trailers.\5\
    FMVSS No. 224 currently excludes pole trailers, pulpwood trailers, 
wheels

[[Page 67664]]

back trailers, and ``special purpose vehicles'' because attachment of 
an underride guard to these specific vehicles is either impracticable 
or unnecessary.\6\ For example, in the case of a wheels back trailer, 
the rear axle is located within 12 inches of the rear extremity of the 
vehicle. Because the rear wheels are located so close to the rear 
extremity of the vehicle, they act as an underride guard, making 
underride virtually impossible.
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    \3\ See Docket No. NHTSA-2001-8876-4.
    \4\ FMVSS No. 224 became effective January 26, 1998; see 61 FR 
2004 (January 24, 1996).
    \5\ The temporary exemptions were based or the ``substantial 
economic hardship'' grounds under 49 CFR 555.6(a). Nevertheless, the 
economic hardship was rooted in impracticability of installing 
underride guards. Both exemptions have since been renewed. See 68 FR 
28880 (May 27, 2003).
    \6\ ``Special purpose vehicle'' means a trailer or a 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. See 49 CFR 
571.224. Examples of special purpose vehicles are dump trailers, 
auto transporters, and trailers equiped with lift gates.
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    The RCC horizontal discharge trailers subject to this notice do not 
fit the current definition of special purpose vehicles. Because of 
their unique design necessitated by their interactions with the paving 
machines, a practicable RCC horizontal discharge trailer is also ill 
suited for a wheels back design exception. In sum, the RCC horizontal 
discharge trailers do not fall under any exclusion currently available 
in FMVSS No. 224. At the same time, complying with the standard is 
impracticable due to the unique design and purpose of these vehicles.
    In their March 23, 2001 joint petition, Dan Hill and Red River 
requested that NHTSA amend FMVSS No. 224 to exclude construction 
controlled horizontal discharge trailers from FMVSS No. 224. According 
to the petitioners, the two parties together account for virtually all 
of RCC horizontal discharge trailer manufacturing. Approximately 0.12% 
of all trailers produced in the U.S. are RCC horizontal discharge 
trailers. Both manufacturers claim to have been unsuccessful in their 
independent efforts to develop an underride guard that is compliant, 
functional, and capable of interfacing with road-building equipment 
with which these vehicles are designed to work. A discussion of these 
various attempts is provided below. Based on their attempts to 
manufacture a compliant trailer that remains functional and safe under 
real world operating conditions, petitioners believe that bringing RCC 
horizontal discharge trailers into compliance with FMVSS No. 224 is not 
practically feasible. Both manufacturers stated failure to amend the 
standard would effectively terminate production of RCC horizontal 
discharge trailers unless petitioners continued to receive temporary 
exemptions.

II. Notice of Proposed Rulemaking

    On September 19, 2003, NHTSA published a Notice of Proposed 
Rulemaking to exclude RCC horizontal discharge trailers from the 
requirements of FMVSS No. 224.\7\
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    \7\ See 68 FR 54879.
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    In the NPRM, we described the apparent difficulty associated with 
installing underride guards on RCC horizontal discharge trailers 
without interfering with their intended function. We stated that, based 
on the joint petitions for rulemaking and previous petitions for 
temporary exemptions, there did not appear to be a practicable solution 
that would bring RCC horizontal discharge trailers in compliance with 
FMVSS No. 224. Accordingly, NHTSA proposed to exclude RCC horizontal 
discharge trailers from the requirements of FMVSS No. 224 by adding RCC 
horizontal discharge trailers to the list of excluded vehicles in S3 of 
the Standard.
    To ensure that the standard excluded only the specific type of the 
vehicles discussed in this notice, we proposed the following definition 
of RCC horizontal discharge trailers:

``a trailer or semitrailer that is equipped with a mechanical drive 
and a conveyor to deliver asphalt and other road building materials, 
in a controlled horizontal manner, into a lay down machine or paving 
equipment for road construction and paving operations.''

    In order to better understand practicability issues associated with 
bringing RCC horizontal discharge trailers in compliance with FMVSS No. 
224, the agency asked for comment on the following questions:
    1. Is a wheels back design a practical vehicle design alternative 
for RCC horizontal discharge trailers?
    2. What is the maintenance and performance history of RCC 
horizontal discharge trailers with wheels back design?
    3. Is a retractable underride guard design a practical solution for 
RCC horizontal discharge trailers? Does such a design create a risk of 
injury to workers operating or working near the trailer?
    4. What is the maintenance and performance history of RCC 
horizontal discharge trailers with retractable underride guards?
    5. Has any manufacturer of RCC horizontal discharge trailers 
subject to this notice been able to alternatively design a compliant 
vehicle equipped with an underride guard, that is able to slide over 
the paving machine in order to discharge asphalt mix?

III. Summary of Comments

    The agency received 24 comments in response to the September 19, 
2003 NPRM. Specifically, we received three comments from RCC horizontal 
discharge manufacturers; seventeen comments from road construction 
companies; two comments from Associated General Contractors of America, 
a comment from a RCC horizontal discharge trailer reseller; and a 
comment from a gravity feed dump trailer manufacturer.
    All comments supported the proposed amendment to exclude RCC 
horizontal discharge trailers from the requirements of FMVSS No. 224. 
Several commenters emphasized impracticability issues associated with 
installing underride guards on RCC horizontal discharge trailers. Other 
comments from the road construction companies indicated their 
preference for horizontal discharge trailers over dump trucks. One 
commenter urged the agency to exclude gravity feed dump trailers in 
addition to RCC horizontal discharge trailers.

IV. Agency Analysis and Decision

    Based on our consideration of the comments and other available 
information, the agency is issuing this final rule to amend FMVSS No. 
224 to exclude RCC horizontal discharge trailers from the requirements 
of the standard. The basis for our decision is discussed below.

A. Impracticability

    Manufacturing a RCC horizontal discharge trailer to accommodate an 
underride guard has proven impracticable because the rear of the 
trailer is designed to connect with paving equipment. As previously 
discussed, the paving machine typically attaches to the rear axle of an 
RCC horizontal discharge trailer via hydraulic arms, and the edge of 
the trailer's conveyor belt extends over the paving machine opening. 
This configuration is critical to the road construction process as it 
allows the RCC horizontal discharge trailer to deposit asphalt mix 
directly into the paving machine hopper. A fixed underride guard 
prevents paving machines from interfacing with (locking onto) the RCC 
horizontal discharge trailer during the paving operations.\8\
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    \8\ See comments from Mayo Construction Co., NHTSA-2003-14396-
16.
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    In the NPRM, we detailed petitioners' independent efforts to 
develop an underride guard that is compliant, safe under real-world 
operating conditions, and capable of interfacing with road-

[[Page 67665]]

building equipment with which these vehicles are designed to work.
    First, petitioners considered installing a retractable underride 
guard that would be engaged when the RCC horizontal discharge trailer 
travels to and from the actual construction sites, and retracted when 
the RCC horizontal discharge trailer is attached to the paving machine. 
However, designing a retractable underride guard suitable for this 
application has proven impractical for several reasons, chiefly among 
them the lack of adequate clearance. The edge of the RCC horizontal 
discharge trailer must extend over the paving machine in order to drop 
the hot asphalt mix into the hopper. Because paving machines differ in 
size and configuration, the trailer must allow for paving machines of 
different heights to slide under the conveyor structure. Typically, the 
paving machine openings are 31 to 35 inches off the ground. Conveyor 
structures of the RCC horizontal discharge trailers are normally 36 to 
37 inches off the ground. As a result, the underride guard has to 
retract completely against the conveyor structure, in order to not 
interfere with the paving machine. Achieving such ``flush'' retraction 
has not proven feasible. Additionally, raising the overall ground 
clearance of the RCC horizontal discharge trailer in order to provide 
adequate clearance for a retractable underride guard would raise the 
center of gravity of the trailer, possibly making the vehicle more 
prone to rollovers.
    Another difficulty in installing a retractable underride guard 
involves the location of a planetary gearbox that drives the conveyor 
system. The gearbox is located where a retractable underride guard 
system would otherwise be located. Further, asphalt accumulations on 
the underride guard cause certain maintenance problems, which have not 
yet been solved. Specifically, a retractable underride guard has mating 
surfaces that slide over each other. These surfaces would be under 
constant exposure to hot asphalt, which would result in mating surfaces 
sticking to each other. The hot mix asphalt materials that adhere to 
the guard surface may render it ineffective and may pose a risk of 
injury to the truck or machine operator.
    In response to the NPRM, we received several comments on the 
practicability of a retractable underride guard. Ace Asphalt Paving 
Co., Keeler Construction Co., Rose's Enterprises and EDW. C. Levy Co. 
all stated that a retractable guard will result in increased cost and 
would increase the risk of an injury associated with employees being 
too close to the guard as it is being retracted or lowered. Red River 
reiterated that a retractable guard could pose a risk to construction 
workers because asphalt buildup would jam the retraction mechanism.
    Additional efforts by the petitioners to bring their product into 
compliance with FMVSS No. 224 have similarly failed. Specifically, 
petitioners considered adding removable underride guards. They rejected 
this approach because of concerns that workers would fail to replace 
the underride guard before transit.
    The agency did not receive comments directly addressing removable 
underride guards. Nevertheless, the agency continues to believe that 
removable underride guards are not a practicable solution. Because the 
standard applies only to new vehicles, this design approach would allow 
RCC horizontal discharge trailer manufacturers to meet FMVSS No. 224. 
However, given the inconvenience associated with continually removing 
and reinstalling a removable guard, it is likely that at some point the 
guard would be removed permanently. This scenario is inconsistent with 
the overall intent of the standard, which is to reduce the likelihood 
of underride collisions on U.S. highways.
    Therefore, the agency concludes that installing underride guards on 
RCC horizontal discharge trailers is impracticable.

B. Alternative Methods of Compliance and Alternative Vehicles

1. Special Purpose Vehicles and Wheels Back Trailers
    As previously discussed, S.3 of FMVSS No. 224 contains certain 
exceptions to the requirements of the standard. Specifically, ``wheels 
back'' trailers, and ``special purpose vehicles'' need not comply with 
FMVSS No. 224 because attachment of an underride guard to these 
specific vehicles is either impracticable or unnecessary. Neither 
exception applies to RCC horizontal discharge trailers.
    A special purpose vehicle is defined as ``* * * a trailer or a 
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'' \9\ Examples of 
special purpose vehicles are auto transporters, and certain trailers 
equipped with lift gates.
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    \9\ See S4 of 49 CFR Sec.  571.224.
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    The RCC horizontal discharge trailers subject to this rulemaking do 
not fit the current definition of special purpose vehicles, 
notwithstanding their unique nature and their work-performing 
equipment, because technically, their work-performing equipment does 
not move through or reside in the area in which the underride guard 
would be attached.
    Wheels back trailer are equipped with a rear axle that is located 
within 305 mm (12 inches) of the rear extremity of the vehicle. Because 
the rear wheels are located so close to the rear extremity of the 
vehicle, they act as an underride guard, making PCI virtually 
impossible.
    Because of the unique design necessitated by their interactions 
with the paving machines, a practicable RCC horizontal discharge 
trailer is ill-suited for a wheels back design. As previously 
mentioned, a RCC horizontal discharge trailer is designed to extend 
over a paving machine in order to drop the hot asphalt mix into the 
hopper. A rear axle located within 12 inches of the rearmost extremity 
would prevent the trailer from properly extending over the paving 
machine. In fact, several commenters confirmed that a RCC horizontal 
discharge trailer with a rear axle located within 12 inches of the 
rearmost extremity is unacceptable. For instance, Barre Stone Products, 
Inc. (Barre) stated that a 33-inch overlap between the RCC horizontal 
discharge trailer and the paving machine is necessary to ensure proper 
interaction between the hopper and the trailer, and to prevent spillage 
of asphalt material. Barre further noted that the wheels back design 
would not allow for proper articulation between the RCC horizontal 
discharge trailer and the paving machine at the point where they are 
joined. Accordingly, the agency concludes that wheels back design does 
not provide for a practicable solution for compliance with FMVSS No. 
224.
    In sum, RCC horizontal discharge trailers do not fall under any 
preexisting exclusions to the requirements of FMVSS No. 224 and cannot 
be effectively altered to fit these exclusions.
2. Use of Dump Trucks Instead of RCC Horizontal Discharge Trailers
    In evaluating available alternatives, NHTSA also considered the 
implications of not exempting RCC horizontal discharge trailers from 
the requirements of FMVSS No. 224. If RCC horizontal discharge trailers 
were no longer available to the road construction industry, the 
industry would have to rely on dump trucks to deliver asphalt to the 
construction sites. In the NPRM we stated that RCC horizontal discharge 
trailers appear to allow for a more controlled off-loading, as compared 
to a

[[Page 67666]]

dump truck, which tends to discharge large quantities of asphalt mix 
instantly. A more controlled offloading not only prevents spillage of 
asphalt and other debris on the road surfaces, but also ensures a more 
leveled road surface construction. Furthermore, dump trucks may not be 
able to operate in situations where overhead obstructions such as 
bridges and power lines prevent raising the bed to unload asphalt 
materials.
    In response to the NPRM, the agency received several comments from 
the road construction industry indicating their preference for RCC 
horizontal discharge trailers over dump trucks. Specifically, Central 
Specialties, Inc., and Las Vegas Paving Corp., stated that RCC 
horizontal discharge trailers are preferable to dump trucks because 
they allow for a more controlled delivery of asphalt, thus reducing the 
instances of spills and accidents on job sites. Further, RCC horizontal 
discharge trailers reduce or prevent asphalt material segregation 
during delivery. This makes road construction material more durable, 
resulting in better roads. By contrast, dump trucks cannot prevent 
asphalt material segregation, leading to a degradation in the quality 
of asphalt during transit. Manatt's Inc., and Mayo Construction, Co., 
noted that dump trucks are ineffective in delivering asphalt to uneven 
ground areas and present a serious safety hazard in areas with overhead 
power lines.
    Based on the industry comments confirming the benefits of utilizing 
RCC horizontal discharge trailers in certain road construction 
operations, the agency concludes that dump trucks do not always present 
a viable alternative to RCC horizontal discharge trailers and cannot 
effectively replace them in all circumstances.

C. Safety Consequences

    The agency has examined the possible safety consequences of 
excluding RCC horizontal discharge trailers from FMVSS No. 224. We note 
that RCC horizontal discharge trailers travel on U.S. highways only 
infrequently, in order to deliver the hot asphalt mix to the road 
construction sites. These vehicles spend most of their time in a 
controlled environment of a construction site, surrounded by paving 
machines and construction traffic control equipment (e.g. traffic 
cones, safety signs), where a risk of underride collision is virtually 
nonexistent.\10\ Further, only a very small number of all trailers 
(approximately 0.12%) produced in the U.S. are RCC horizontal discharge 
trailers. Accordingly, the agency concludes that the risk of a severe 
underride collision with an RCC horizontal discharge trailer is 
substantially lower than that of other vehicles subject to FMVSS No. 
224.
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    \10\ Neither Fatal Analysis Reporting System (FARS), the 
National Automotive Sampling System (NASS), nor the General 
Estimates System (GES) data files that we have examined include 
crash information pertaining specifically to horizontal discharge 
trailers. We have examined underride and horizontal discharge 
trailer information from hard copies of police accident reports 
(PARs) for 74 selected 1999-2001 FARS cases and 75 cases from the 
1999-2001 NASS on-line summary files. A careful examination of 
photographs (where available) and other related information yielded 
no indication of rear end collisions involving horizontal discharge 
trailers.
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D. Statutory Mandate To Ensure Practicability of Safety Standards

    When prescribing a motor vehicle safety standard, NHTSA is required 
to ensure that the standard is reasonable, practicable, and appropriate 
for the particular type of motor vehicle equipment for which it is 
prescribed (49 U.S.C. 30111(b)(3)). As discussed above, NHTSA has 
concluded that installing underride guards on RCC horizontal discharge 
trailers is impracticable. Further, comments from the road construction 
industry confirm that it is similarly impracticable to design an RCC 
horizontal discharge trailer that would fall under the existing wheels 
back exception. Therefore, the agency concludes that it is appropriate 
to exclude RCC horizontal discharge trailers from FMVSS No. 224.

E. Request To Exempt Gravity Feed Dump Trailers

    In response to the NPRM, we received a comment from Reliance 
Trailer Co. (Reliance), requesting that NHTSA amend the definition of 
an RCC horizontal discharge trailers to include gravity feed dump 
trailers. Reliance is a trailer manufacturer specializing in gravity 
feed dump trailers for the use in road construction industry.\11\ After 
carefully considering Reliance's request, NHTSA declines to exclude 
gravity feed dump trailers from the requirements of the standard.
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    \11\ On June 1, 2004 NHTSA granted Reliance a temporary 
exemption from FMVSS No. 224 based on substantial economic hardship, 
and in part, on impracticability of compliance with the standard. 
For detail on the exemption, please see 69 FR 30989.
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    A RCC horizontal discharge trailer is a single-purpose vehicle 
designed to deliver and discharge asphalt materials into paving 
equipment in a controlled manner. Unlike the RCC horizontal discharge 
trailers, gravity feed dump trailers are versatile vehicles used for a 
multitude of tasks. Often, gravity feed dump trailers are used in a way 
that does not require controlled offloading or interaction with other 
equipment such as paving machines. Further, many gravity feed dump 
trailers fall under wheels back exception. Others can easily 
accommodate an underride guard.
    Because it is not impracticable for all gravity feed dump trailers 
to comply with FMVSS No. 224, the agency prefers to review the 
necessity of exempting gravity feed dump body trailers within the 
context of temporary exemptions pursuant to 49 CFR Part 555. In certain 
limited circumstances, the agency grants temporary exemptions to 
gravity feed dump trailer manufacturers based, in part, on 
impracticability of compliance. In fact, several gravity feed dump 
trailer manufacturers, including Reliance, have previously received 
exemptions from FMVSS No. 224.\12\
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    \12\ See 68 FR 7406 (February 13, 2003), exempting Columbia Body 
Manufacturing Co. from FMVSS No. 224.
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    The agency notes that gravity feed dump trailers are more common 
and represent a larger vehicle population compared to RCC horizontal 
discharge trailers. Accordingly, we are concerned that exempting a 
larger vehicle population from the requirements of the standard may 
lead to negative safety consequences exceeding those associated with 
exempting only the RCC horizontal discharge trailers. Because of a 
larger vehicle population and because of their versatility of use, the 
agency cannot conclude that a risk of an underride collision with a 
gravity feed dump trailer is negligible. Finally, we note that 
Reliance's request is outside the scope of the NPRM, and this 
rulemaking action cannot exempt other types of vehicles from the 
requirements of FMVSS No. 224 without further notice.

V. Estimated Costs and Benefits

    This final rule will not result in any additional cost burdens on 
any regulated parties. Exclusion of RCC horizontal discharge trailers 
from the requirements of FMVSS No. 224 will benefit RCC horizontal 
discharge trailer manufacturers and members of the road construction 
industry utilizing these vehicles because RCC horizontal discharge 
trailer manufacturers would not have to expend further financial 
resources in attempting to bring RCC horizontal discharge trailers into 
compliance with FMVSS No. 224.
    The cost benefits associated with this final rule will result from 
the petitioners' and other third parties' ability to continue 
manufacturing and marketing their products. Currently, petitioners' 
ability to offer RCC

[[Page 67667]]

horizontal discharge trailers depends on temporary exemptions. Further, 
E.D. Etnyre & Co. and other manufacturers who may have suffered sale 
volume losses as a result of offering a wheels back or other designs 
unpopular with typical RCC horizontal discharge trailer purchasers, may 
once again gain market share by offering a product that is more 
suitable to the industry needs. The actual costs savings to RCC 
horizontal discharge trailer manufacturers are difficult to estimate 
because petitioners have not been able to produce a viable underride 
guard for the equipment in question.
    We also anticipate certain cost savings by members of the road 
construction industry based on their comments stating their preference 
of RCC horizontal discharge trailers to dump trailers. Road 
construction industry costs savings are not quantified because road 
construction companies did not submit data sufficient to enable NHTSA 
to create an actual cost estimate.
    There are no safety benefits associated with this proposed 
rulemaking. As discussed in Section IV, however, we anticipate that 
because of very limited production, and similarly limited highway use 
exposure, there are minimal safety disbenefits associated with this 
final rule.

VI. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under 
E.O. 12866 and the Department of Transportation's regulatory policies 
and procedures. This final rule was not reviewed under E.O. 12866, 
``Regulatory Planning and Review.'' This action has been determined to 
be ``nonsignificant'' under the Department of Transportation's 
regulatory policies and procedures. The agency concludes that the 
expected impact of the final rule is so minimal that the final rule 
does not warrant preparation of a full regulatory evaluation. This 
rulemaking will not impose any new requirements or costs on 
manufacturers. Instead, this rulemaking exempts RCC horizontal 
discharge trailer manufacturers from the requirements of FMVSS No. 224. 
Accordingly, the final rule will result in cost savings to 
manufacturers of RCC horizontal discharge trailers, and road 
construction companies purchasing these vehicles.

B. Regulatory Flexibility Act

    NHTSA has considered the impacts of this rulemaking action under 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). I hereby certify 
that the final rule will not have a significant economic impact on a 
substantial number of small entities. This rulemaking does not impose 
any new requirements or costs on manufacturers. Instead, the final rule 
excludes manufacturers of RCC horizontal discharge trailers from the 
requirements of FMVSS No. 224. The manufacturers of RCC horizontal 
discharge trailers, among them Dan Hill, Red River, and E.D. Etnyre & 
Co. will realize certain cost savings because the standard will no 
longer require them to install underride guards on their RCC horizontal 
discharge trailers. However, because of the relatively small number of 
RCC horizontal discharge trailers produced yearly, any potential 
positive economic impact will not be significant. Accordingly, this 
amendment will not significantly affect small businesses, small 
organizations, or small governmental units. For these reasons, the 
agency has not prepared a final regulatory flexibility analysis.

C. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, a person is not required 
to respond to a collection of information by a Federal agency unless 
the collection displays a valid OMB control number. This final rule 
does not contain any collection of information requirements subject 
review under the Paperwork Reduction Act.

D. National Environmental Policy Act

    NHTSA has analyzed this final rule under the National Environmental 
Policy Act and determined that it would not have a significant impact 
on the quality of human environment.

E. Executive Order 13132 (Federalism)

    NHTSA has analyzed this final rule in accordance with the 
principles and criteria contained in the Executive Order 13132, and has 
determined that this rulemaking does not have sufficient Federal 
implications to warrant consultation with State and local officials or 
the preparation of a Federalism summary impact statement. This final 
rule does not have any substantial impact on the States, or on the 
current Federal-State relationship, or on the current distribution of 
power and responsibilities among the various local officials. The final 
rule is not intended to preempt state tort civil actions.

F. Civil Justice Reform

    This final rule will not have any retroactive effect. Under 49 
U.S.C. 21403, 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. 21461 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.

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 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.
    The agency searched for, but did not find any voluntary consensus 
standards relevant to this final rule.

H. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 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 
($120,700,000 as adjusted for inflation with base year of 1995).
    This final rule will not result in expenditures by State, local or 
tribal governments, in the aggregate, or by the private sector in 
excess of $120,700,000 annually.

I. 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

[[Page 67668]]

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.

J. Executive Order 13045

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under E.O. 12866, and (2) concerns an environmental, health, or 
safety risk that NHTSA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, we must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by us.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in E.O. 12866 and does not 
involve decisions based on environmental, health, or safety risks that 
disproportionately affect children.

K. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

L. Executive Order 12988 (Civil Justice Reform)

    This final rule will 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.

List of Subjects in 49 CFR Part 571

    Motor vehicle safety standards.

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
In consideration of the foregoing, NHTSA amends 49 CFR part 571.224 as 
set forth below.
0
1. The authority citation for part 571 continues to read as follows:

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


0
2. Section 571.224 is amended by revising S3 and by adding the 
definition of ``Road construction controlled horizontal discharge 
trailer'' in alphabetical order to S4 to 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 4,356 kg or more. The standard does not apply to pole 
trailers, pulpwood trailers, road construction controlled horizontal 
discharge trailers, special purpose vehicles, wheels back vehicles, or 
temporary living quarters as defined in 49 CFR 529.2. If a cargo tank 
motor vehicle, as defined in 49 CFR 171.8, is certified to carry 
hazardous materials and has a rear bumper or rear end protection device 
conforming with 49 CFR part 178 located in the area of the horizontal 
member of the rear underride guard required by this standard, the guard 
need not comply with the energy absorption requirement (S5.2.2) of 49 
CFR 571.223.
    S4. Definitions.
    * * * Road construction controlled horizontal discharge trailer 
means a trailer or semitrailer that is equipped with a mechanical drive 
and a conveyor to deliver asphalt and other road building materials, in 
a controlled horizontal manner, into a lay down machine or paving 
equipment for road construction and paving operations.
* * * * *

    Issued: November 12, 2004.
Jeffrey W. Runge,
Administrator.
[FR Doc. 04-25703 Filed 11-18-04; 8:45 am]
BILLING CODE 4910-59-P