[Federal Register Volume 71, Number 36 (Thursday, February 23, 2006)]
[Rules and Regulations]
[Pages 9274-9277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1670]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 57l

[Docket No. NHTSA-2004-19523]
RIN 2127-AJ80


Federal Motor Vehicle Safety Standards; Rear Impact Guards and 
Rear Impact Protection

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

ACTION: Final rule; response to petition for reconsideration.

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SUMMARY: To address the problem of rear underride crashes, Federal 
safety standards require heavy trailers and semitrailers to be equipped 
with underride guards. Compliance with these requirements is not 
practicable for vehicles featuring work-performing equipment mounted in 
the area where an underride guard would normally be located. These 
trailers and semitrailers are designated as ``special purpose 
vehicles'' and are excluded from the standard. On November 5, 2004, we 
published a final rule amending the definition of ``special purpose 
vehicles'' in order to clarify the exclusion by specifying the 
dimensions of the area where the work-performing equipment must reside 
or pass through in order for the exclusion to apply. On December 14, 
2004, we were petitioned by the National Truck Equipment Association to 
reconsider the final rule because the amendment has had an unintended 
effect of narrowing the exclusion applicable to ``special purpose 
vehicles.''
    In response to that petition for reconsideration, this document 
further amends the definition of a ``special purpose vehicle'' to 
exclude a specific group of vehicles that cannot comply with the 
underride guard requirements in a practicable manner.

DATES: This final rule is effective April 24, 2006. Voluntary 
compliance is permitted before that time.

FOR FURTHER INFORMATION CONTACT: The following persons at the National 
Highway Traffic Safety Administration, 400 7th Street, SW., Washington, 
DC, 20590:
    For technical and policy issues: Mr. Maurice Hicks, Office of 
Crashworthiness Standards, NVS-113, telephone (202) 366-6345, facsimile 
(202) 493-2739, e-mail: [email protected].
    For legal issues: Mr. George Feygin, Office of the Chief Counsel 
(202) 366-2992, facsimile (202) 366-3820, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Federal Motor Vehicle Safety Standard (FMVSS) No. 224, ``Rear 
impact protection,'' requires that heavy \1\ trailers and semitrailers 
be equipped with underride guards in order to reduce the risk to 
passenger vehicle occupants in crashes in which a passenger vehicle 
impacts the rear of a heavy truck trailer or a semitrailer. Compliance 
with these requirements is not practicable for a small number of 
vehicles featuring work performing equipment mounted on the rear of a 
trailer or semitrailer where an underride guard would normally be 
located. If the equipment needs to move through the area that could be 
occupied by the horizontal member of the guard, the presence of a guard 
would impair or eliminate the usefulness of the equipment. These 
vehicles are designated as ``special purpose vehicles'' and are 
excluded from the standard.
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    \1\ Trailers and semitrailers with a gross vehicle weight rating 
(GVWR) of 4,536 kg or more.
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    On June 24, 1998, Thieman Tailgates, Inc., (Thieman) petitioned 
NHTSA to amend FMVSS No. 224 in order to exclude trailers with rear-
mounted rail type \2\ and tuckunder \3\ lift gates from the 
requirements of the standard because, according to the petitioner, they 
could not accommodate underride guards for reasons of impracticability. 
Thieman argued that the previous definition of special purpose vehicles 
(as set forth below) was not descriptive enough to exclude all rail 
type and tuckunder lift gates.
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    \2\ Rail-type liftgate consists 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.
    \3\ Tuckunder liftgate consists 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.

    Special purpose vehicle means 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, as defined by S5.1.1 
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through S5.1.3.\4\

    \4\ See http://www.nhtsa.dot.gov/cars/rules/interps/files/17799-2.pja.html.

    We note that in a September 9, 1998 letter of interpretation 
responding to the National Truck Equipment Association (NTEA) question 
about the ``area that could be occupied by the horizontal member of the 
rear underride guard,'' we described the area as follows: (1) The side 
boundaries are the side extremities of the trailer; (2) the rearward 
boundary is the transverse vertical plane tangent to the rear extremity 
of the vehicle; (3) the forward boundary is the transverse vertical 
plane 305 mm (12 inches) forward of the transverse vertical plane 
tangent to the rear extremity of the vehicle; (4) the vertical 
boundaries may be as high as the bottom of the vehicle body, and as low 
as the ground.
    On February 27, 2004, NHTSA published an NPRM proposing to amend 
FMVSS No. 224.\5\ Specifically, the NPRM proposed to define and 
specifically exclude tuckunder lift gates from the requirements of the 
standard. The NPRM also proposed to amend the definition of ``special 
purpose vehicle'' to include a precise description of the space in 
which work-performing equipment must reside in or move through while a 
trailer is in transit. The NPRM did not propose to exclude rail type 
lift gates from the requirements of FMVSS No. 224.
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    \5\ See 69 FR 9288.
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    On November 5, 2004, NHTSA published a final rule amending FMVSS 
No. 224.\6\ First, with respect to rail type liftgates, we reiterated 
that we never intended to exclude rail-type lift gates from the 
requirements of the standard. Second, the agency agreed that the 
requirements of the standard are impracticable for vehicles equipped 
with tuckunder lift gates. However, instead of creating a specific 
exclusion for tuckunder lift gates, the November 2004 final rule 
amended the definition of ``special purpose vehicles'' with the intent 
to exclude such vehicles. We indicated our belief that expressly 
excluding tuckunder lift gates would be redundant in light of the 
revised definition. We also stated that the

[[Page 9275]]

amended definition would not subject previously excluded vehicles to 
the requirements of FMVSS No. 224.\7\
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    \6\ See 69 FR 64495.
    \7\ See id. We also stated that vehicles equipped with tuckunder 
lift gates would continue to qualify for a ``special purpose 
vehicle'' exclusion. See id at 64497.
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    As set forth below, the new definition contained a precise 
description of the space in which work-performing equipment must reside 
in or move through while a trailer is moving.

    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 new description of the space in which work-performing equipment 
must reside differed from the one described in the September 1998 
letter of interpretation to NTEA. Specifically, the vertical boundary 
of the area became more limited and extended only to a horizontal plane 
660 mm above the ground, instead of all the way up to the horizontal 
surface of the trailer. This is because the agency believed it was 
appropriate to require underride guards on trailers that have only a 
small portion of work-performing equipment located just underneath the 
trailer bed. That is, we concluded that some work performing equipment 
located closer to the trailer bed would be compatible with underride 
guards. We explained that the relationship of the work performing 
equipment to the location in which the rear impact guard would have to 
be installed, and not the mere presence of the equipment, should be the 
criterion for determining the exclusion.
    On December 17, 2004, the NTEA submitted a petition for 
reconsideration of the November 2004 final rule.\8\ NTEA stated that 
the amendment to the definition of ``special purpose vehicles'' has had 
an unintended effect of subjecting many previously excluded trailers 
equipped with tuckunder lift gates to the requirements of the standard. 
NTEA argued that this change was contrary to agency's statements in the 
preamble where we indicated that vehicles equipped with tuckunder lift 
gates would continue to qualify for a special purpose vehicle 
exclusion.\9\ NTEA explained that some tuckunder lift gates are stowed 
just underneath the trailer bed. However, they require the area 
normally occupied by an underride guard in order to deploy the lift 
platform. Thus, according to the petitioner, the presence of an 
underride guard would therefore interfere with the operation of these 
tuckunder lift gates. In sum, NTEA argued that because the description 
of the space in which work-performing equipment must reside was 
narrowed, the November 2004 final rule had the effect of subjecting 
some previously excluded tuckunder lift gates to the requirements of 
FMVSS No. 224.
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    \8\ See NHTSA-2004-19523-3.
    \9\ See 69 FR 64497.
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II. Response to the Petition for Reconsideration

    After carefully considering the issues raised in the NTEA petition 
for reconsideration, we conclude that the definition of ``special 
purpose vehicles'' included in the November 2004 final rule has had an 
unintended effect of subjecting previously excluded trailers equipped 
with tuckunder lift gates from the requirements of the standard. This 
is contrary to our intent because certain tuckunder lift gates cannot 
comply with the requirements of FMVSS No. 224 for reasons of 
impracticability. Specifically, some tuckunder lift gates reside just 
underneath the trailer bed, but nevertheless must move through the 
space normally occupied by an underride guard in order to deploy. 
Accordingly, an underride guard installed on vehicles equipped with 
tuckunder lift gates would make these lift gates useless.
    In short, the agency did not anticipate that our rulemaking would 
subject previously excluded vehicles to the requirements of FMVSS No. 
224 because we were unaware that certain work performing equipment 
stowed close to the surface of the trailer nevertheless requires 
greater space for operation. Therefore on reconsideration, we have 
decided to further amend the definition of ``special purpose 
vehicles.''
    Instead of enlarging the ``exclusion zone'' for all vehicles, which 
could make the ``special purpose vehicle'' exclusion broader than the 
agency intended, the amendment will specifically exclude vehicles 
equipped with tuckunder lift gates; i.e., loading platforms that are 
stowed between the rear vehicle extremity and the rearmost axle, and 
that deploy through the space that would be normally occupied by an 
underride guard. This approach incorporates language that is similar to 
that used in the notice of proposed rulemaking to amend the definition 
of ``special purpose vehicle'' where the agency proposed to define and 
exclude tuckunder lift gates.\10\ In the final rule, the agency 
concluded that expressly excluding tuckunder lift gates would be 
redundant. However, we have reconsidered this position after 
considering the information presented in NTEA's petition.
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    \10\ See 69 FR 9288 at 9296 (February 27, 2004); Docket No. 
NHTSA-1998-4369.
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    The revised definition reads as follows:
    Special purpose vehicle means a trailer or semitrailer that:

    (a) Has work performing equipment that, while the vehicle is in 
transit, resides in or moves through any portion of the space 
bounded:
    (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; or
    (b) Is equipped with a loading platform that, while the vehicle 
is in transit, is completely stowed in the space bounded by a plane 
tangent to the underside of the vehicle, the ground, the rear 
extremity of the vehicle, and the rearmost axle, and that, when 
operated, deploys from its stowed position to the rear of the 
vehicle through any portion of the space described above.

    This amendment to the definition of ``special purpose vehicles'' 
becomes effective 60 days after the publication of this document. 
Voluntary compliance is permitted before that time. We conclude that 
because this amendment excludes tuckunder lift gates, it will not 
subject previously excluded trailers to the requirements of FMVSS No. 
224, and therefore, will not result in any additional costs to trailer 
or underride guard manufacturers. Trailers capable of complying with 
FMVSS No. 224 in a practicable manner are likewise unaffected this 
final rule.

III. Request Concerning Vehicles in Use

    In regard to our November 5, 2004 final rule, we also received a 
request \11\ from Brenntag asking that ``the agency allow all rail type 
lift gates now in operation as of the date of [e]nactment of the 
regulation to be exempt from this new ruling. All rail type lift gates 
installed after that date must comply with the new regulation.'' In 
response to this request, we note that the November 5, 2004 final rule 
was applicable to trailers and semitrailers manufactured on or after 
November 5, 2004 and did

[[Page 9276]]

not apply retroactively to rail type lift gates already in operation.
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    \11\ We note that the request from Brenntag was referred to as a 
petition. However, the agency received the petition after the 
closing date for petitions for rreconsideration. Given the response 
we provide in this paragraph, however, the type of document 
submitted by Brenning is inmaterial.
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IV. 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 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures. This rulemaking document was not reviewed by 
the Office of Management and Budget under E.O. 12866, ``Regulatory 
Planning and Review.'' The rulemaking action is also not considered to 
be significant under the Department's Regulatory Policies and 
Procedures (44 FR 11034, February 26, 1979).
    This rulemaking action will not 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.
    This document simply amends the definition of a ``special purpose 
vehicle'' to exclude a specific group of vehicles that cannot comply 
with the underride guard requirements in a practicable manner.

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). 
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, this document amends the definition of a ``special 
purpose vehicle'' to exclude a specific group of vehicles that cannot 
comply with the underride guard requirements in a practicable manner. 
Therefore, I hereby certify that this final rule does not have a 
significant economic impact on a substantial number of small entities.

C. National Environmental Policy Act

    NHTSA has analyzed these amendments for the purposes of the 
National Environmental Policy Act and determined that they will not 
have any significant impact on the quality of the human environment.

D. Executive Order 13132 (Federalism)

    The agency has analyzed this rulemaking in accordance with the 
principles and criteria contained in Executive Order 13132 and has 
determined that it does not have sufficient federalism implications to 
warrant consultation with State and local officials or the preparation 
of a federalism summary impact statement. The final rule has no 
substantial effects on the States, or on the current Federal-State 
relationship, or on the current distribution of power and 
responsibilities among the various local officials.

E. 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 rule does not 
establish any new information collection requirements.

F. Executive Order 12778 (Civil Justice Reform)

    This final rule does not have any retroactive effect. Under section 
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.

G. 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 $109 million annually 
(adjusted for inflation with base year of 1995). Because this final 
rule does not have a $100 million effect, no Unfunded Mandates 
assessment has been prepared.

H. Executive Order 13045

    Executive Order 13045 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 economically significant and does not 
concern an environmental health or safety risk that disproportionately 
affects children.

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

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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. Privacy Act

    Anyone is able to search the electronic form of all submissions 
received into any of our dockets by the name of the individual 
submitting the comment or petition (or signing the comment or petition, 
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.

V. Regulatory Text

List of Subjects in 49 CFR Parts 571

    Motor vehicle safety, Reporting and recordkeeping requirements, 
Tires.

0
In consideration of the foregoing, 49 CFR part 571 is amended as 
follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 of title 49 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 the definition of ``Special 
purpose vehicle'' in S4 as follows:


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

* * * * *
S4. Definitions
* * * * *
    Special purpose vehicle means a trailer or semitrailer that:
    (1) Has work performing equipment that, while the vehicle is in 
transit, resides in or moves through any portion of the space bounded:
    (i) Vertically from the ground to a horizontal plane 660 mm above 
the ground;
    (ii) Laterally the full width of the trailer, determined by the 
trailer's side extremities as defined in S4 of this section; and
    (iii) 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; or
    (2) Is equipped with a loading platform that, while the vehicle is 
in transit, is completely stowed in the space bounded by a plane 
tangent to the underside of the vehicle, the ground, the rear extremity 
of the vehicle, and the rearmost axle, and that, when operated, deploys 
from its stowed position to the rear of the vehicle through any portion 
of the space described above.
* * * * *

    Issued on: February 16, 2006.
Jacqueline Glassman,
Deputy Administrator.
[FR Doc. 06-1670 Filed 2-22-06; 8:45 am]
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