[Federal Register Volume 85, Number 249 (Tuesday, December 29, 2020)]
[Proposed Rules]
[Pages 85571-85578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27502]



[[Page 85571]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 393 and 399

[Docket No. FMCSA-2019-0211]
RIN 2126-AC31


Parts and Accessories Necessary for Safe Operation; Rear Impact 
Guards and Rear Impact Protection

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FMCSA proposes to amend the Federal Motor Carrier Safety 
Regulations (FMCSRs) to include rear impact guards on the list of items 
that must be examined as part of the required annual inspection for 
each commercial motor vehicle (CMV). In addition, FMCSA proposes to 
amend the labeling requirements for rear impact guards, and to exclude 
road construction controlled (RCC) horizontal discharge trailers from 
the rear impact guard requirements, consistent with changes made by the 
National Highway Traffic Safety Administration (NHTSA) to the 
corresponding Federal Motor Vehicle Safety Standards (FMVSS). This 
notice of proposed rulemaking (NPRM) responds to rulemaking petitions, 
as well as a recommendation from the Government Accountability Office 
(GAO).

DATES: Comments on this notice must be received on or before March 1, 
2021.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2019-0211 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket?D=FMCSA-2019-0211. Follow the online 
instructions for submitting comments.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. To be sure 
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
     Fax: (202) 493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Mr. Luke Loy, Vehicle and Roadside 
Operations, Office of Carrier, Driver, and Vehicle Safety, MC-PSV, 
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, (202) 366-0676, [email protected]. If you 
have questions on viewing or submitting material to the docket, contact 
Dockets Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
NPRM (FMCSA-2019-0211), indicate the specific section of this document 
to which comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online or by 
fax, mail, or hand delivery, but please use only one of these means. 
FMCSA recommends that you include your name and a mailing address, an 
email address, or a telephone number in the body of your document so 
that FMCSA can contact you if there are questions regarding your 
submission.
    To submit your comment online, go to https://www.regulations.gov/docket?D=FMCSA-2019-0211, click on the ``Comment Now!'' button, and 
type your comment into the text box on the following screen. Choose 
whether you are submitting your comment as an individual or on behalf 
of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, on paper no larger than 8\1/2\ by 11 inches, 
suitable for copying and electronic filing. If you submit comments by 
mail and would like to know that they reached the facility, please 
enclose a stamped, self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period and may make changes based on your comments. FMCSA may 
issue a final rule at any time after the close of the comment period.

Confidential Business Information (CBI)

    CBI is commercial or financial information that is both customarily 
and actually treated as private by its owner. Under the Freedom of 
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. 
If your comments responsive to the interim rule contain commercial or 
financial information that is customarily treated as private, that you 
actually treat as private, and that is relevant or responsive to the 
interim rule, it is important that you clearly designate the submitted 
comments as CBI. Please mark each page of your submission that 
constitutes CBI as ``PROPIN'' to indicate it contains proprietary 
information. FMCSA will treat such marked submissions as confidential 
under the Freedom of Information Act, and they will not be placed in 
the public docket of the interim rule. Submissions containing CBI 
should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis 
Division, Office of Policy, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue SE, Washington DC 20590-0001. 
Any comments FMCSA receives not specifically designated as CBI will be 
placed in the public docket for this rulemaking.

B. Viewing Comments and Documents

    Supporting documents and any comments we receive on this docket may 
be viewed at https://www.regulations.gov/docket?D=FMCSA-2019-0211. If 
you do not have access to the internet, you may view the docket online 
by visiting the Dockets Operations in Room W12-140 on the ground floor 
of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 
20590-0001, between 9 a.m. and 5 p.m., e.t., Monday through Friday, 
except Federal holidays. To be sure someone is there to help you, 
please call (202) 366-9317 or (202) 366-9826 before visiting Dockets 
Operations.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

D. Advance Notice of Proposed Rulemaking

    Under the Fixing America's Surface Transportation Act, Public Law 
114-94 (FAST Act), FMCSA is required to publish an advance notice of 
proposed rulemaking (ANPRM) or conduct a negotiated rulemaking ``if a 
proposed rule is likely to lead to the promulgation of a major rule.'' 
49 U.S.C. 31136(g)(1). As this proposed rule is not likely to lead to 
the promulgation of a major rule, the Agency is not required to issue 
an

[[Page 85572]]

ANPRM or to proceed with a negotiated rulemaking.

II. Executive Summary

A. Purpose and Summary of Major Provisions

    Section 393.86 of the FMCSRs, ``Rear impact guards and rear end 
protection,'' requires rear impact guards to be installed on most CMVs 
to reduce the incidence of passenger compartment intrusion during 
underride crashes in which a passenger vehicle strikes the rear of the 
CMV. Regulations requiring rear impact guards have been in the FMCSRs 
since 1952. The FMCSRs require that all CMVs be systematically 
inspected, repaired, and maintained to ensure that all required parts 
and accessories--including rear impact guards--are in safe and proper 
operating condition at all times (section 396.3(a)(1)). Operation of a 
CMV with a missing or noncompliant rear impact guard would be a 
violation of the FMCSRs, precluding the issuance of a Commercial 
Vehicle Safety Alliance (CVSA) inspection decal if the vehicle were to 
be inspected.
    Among other things, the regulations require every CMV to be 
inspected at least once every 12 months. A motor carrier may not use a 
CMV unless each component identified in Appendix G of Subchapter B of 
Chapter III of title 49, Code of Federal Regulations, ``Minimum 
Periodic Inspection Standards,'' has passed the required annual 
inspection. While the FMCSRs have required rear impact guards for more 
than 65 years, they are not included on the list of components in 
Appendix G that must be inspected during the annual CMV inspection. 
This means that a vehicle can pass an annual inspection with a missing 
or damaged rear impact guard.
    In response to petitions from the CVSA and Jerry and Marianne Karth 
(``the Karths'' \1\); a recommendation included in GAO Report GAO-19-
264, ``Truck Underride Guards: Improved Data Collection, Inspections, 
and Research Needed;'' \2\ and Congressional correspondence,\3\ this 
rulemaking proposes to amend the FMCSRs to include rear impact guards 
on the list of items that must be examined as part of the required 
annual inspection for each CMV.
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    \1\ Copies of the petitions from CVSA and the Karths are 
available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets Operations.
    \2\ A copy of the GAO Report is available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets 
Operations.
    \3\ A copy of the letter is available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets 
Operations.
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    In addition, NHTSA published two final rules on November 19, 2004, 
relating to rear impact guards. First, NHTSA amended the labeling 
requirement in FMVSS No. 223, ``Rear impact guards,'' to permit the 
rear impact guard certification label to be mounted on either the 
forward- or rearward-facing surface of the horizontal member of the 
guard, provided the label does not interfere with the retroreflective 
sheeting required by the FMVSS (69 FR 67660).\4\ Prior to the 
amendment, the certification label was required to be mounted on the 
forward-facing surface of the horizontal member, 12 inches inboard of 
the right end of the guard. Second, NHTSA amended the applicability 
section of FMVSS No. 224, ``Rear impact protection,'' to exclude RCC 
horizontal discharge semitrailers from the requirements of the standard 
(69 FR 67663).\5\ NHTSA concluded that installation of rear impact 
guards on RCC horizontal discharge trailers would interfere with the 
intended function of the trailers and was therefore impracticable due 
to the unique design and purpose of those vehicles. However, neither of 
NHTSA's November 2004 amendments to the FMVSS has been incorporated 
into the corresponding rear impact requirements in section 393.86 of 
the FMCSRs. FMCSA is proposing to amend the FMCSRs to adopt the changes 
above to maintain consistency with FMVSS Nos. 223 and 224.
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    \4\ You may view the NHTSA rule online at https://www.federalregister.gov/documents/2004/11/19/04-25704/federal-motor-vehicle-safety-standards-rear-impact-guard-labels.
    \5\ You may view the NHTSA rule online at https://www.federalregister.gov/documents/2004/11/19/04-25703/federal-motor-vehicle-safety-standards-rear-impact-guards-final-rule.
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B. Costs and Benefits of Proposal

    The Agency does not expect this rulemaking to result in incremental 
costs or benefits. Although rear impact guards are not currently among 
the items that must be examined during annual inspections, 49 CFR 
393.86 requires that certain CMVs operated in interstate commerce be 
equipped with the devices and that they remain installed and in safe 
and proper operating conditions at all times. Therefore, for the 
purposes of assessing the potential economic impact of this rulemaking 
on motor carriers, the Agency assumes compliance as part of the 
baseline established by the existing FMCSRs in section 393.86. Neither 
the labeling requirements that would result from this proposed rule nor 
the exclusion of RCC horizontal discharge semitrailers from these 
requirements would result in incremental costs or benefits.

III. Legal Basis for the Rulemaking

    This rulemaking is based on the authority of the Motor Carrier Act 
of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 (1984 Act).
    The 1935 Act, as amended, provides that ``[t]he Secretary of 
Transportation may prescribe requirements for--(1) qualifications and 
maximum hours of service of employees of, and safety of operation and 
equipment of, a motor carrier; and (2) qualifications and maximum hours 
of service of employees of, and standards of equipment of, a private 
motor carrier, when needed to promote safety of operation'' (49 U.S.C. 
31502(b)).
    This NPRM would amend the FMCSRs to respond to petitions for 
rulemaking. The adoption and enforcement of such rules is specifically 
authorized by the 1935 Act. This proposed rulemaking rests squarely on 
that authority.
    The 1984 Act provides concurrent authority to regulate drivers, 
motor carriers, and vehicle equipment. It requires the Secretary to 
``prescribe regulations on commercial motor vehicle safety.'' The 
regulations shall prescribe minimum safety standards for CMVs. At a 
minimum, the regulations shall ensure that: (1) CMVs are maintained, 
equipped, loaded, and operated safely; (2) the responsibilities imposed 
on operators of CMVs do not impair their ability to operate the 
vehicles safely; (3) the physical condition of operators of CMVs is 
adequate to enable them to operate vehicles safely; (4) the operation 
of CMVs does not have a deleterious effect on the physical condition of 
the operators; and (5) drivers are not coerced by motor carriers, 
shippers, receivers, or transportation intermediaries to operate a 
vehicle in violation of a regulation promulgated under 49 U.S.C. 31136 
(which is the basis for much of the FMCSRs) or 49 U.S.C. chapters 51 or 
313 (49 U.S.C. 31136(a)).
    This proposed rule concerns parts and accessories necessary for the 
safe operation of CMVs, and the inspection, repair, and maintenance of 
CMVs. It is based on section 31136(a)(1) because it deals with CMV 
maintenance of rear impact guards. The NPRM does not address the 
driver-centered requirements of sections 31136(a)(2)-(4). As the 
amendments proposed by this rule are primarily technical changes that 
clarify existing requirements and improve enforcement consistency,

[[Page 85573]]

FMCSA believes there will be stakeholder support for this initiative 
and that coercion to violate the proposed amendments, which is already 
prohibited by section 31136(a)(5), will not be an issue.
    Before prescribing any such regulations, FMCSA must consider the 
``costs and benefits'' of any proposal (49 U.S.C. 31136(c)(2)(A) and 
31502(d)). As discussed in greater detail in the ``Regulatory 
Analyses'' section, FMCSA has determined that this proposed rule is not 
a significant regulatory action.

IV. Background

A. History of Rear Impact Guard Requirements

    The first Federal requirements concerning heavy vehicle rear 
underride protection were issued in 1952 by the Bureau of Motor 
Carriers of the Interstate Commerce Commission (ICC). The regulation 
required all heavy trucks, trailers, and semitrailers manufactured 
after December 31, 1952, to be equipped with a rear-end protection 
device designed to help prevent underride. The rule required that the 
ground clearance of the underride guard be no more than 30 inches when 
the vehicle is empty. The rule also required that the underride guard 
be located no more than 24 inches forward of the rear of the vehicle, 
and that it extend laterally to within 18 inches of each side. The 
underride device was required to be ``substantially constructed and 
firmly attached'' (17 FR 4445, May 15, 1952). The ICC's authority over 
motor carrier safety was transferred to DOT by Section 6(e)(6)(C) of 
the Department of Transportation Act (Pub. L. 89-670, 80 Stat. 931, 
939-940, Oct. 15, 1966). The authority was delegated by the Secretary 
to the Federal Highway Administration (FHWA).
    On January 24, 1996, NHTSA published a final rule creating FMVSS 
Nos. 223 and 224 (61 FR 2004). The requirements apply to most trailers 
and semitrailers with a gross vehicle weight rating of 10,000 pounds or 
more, manufactured on or after January 26, 1998.
    FMVSS No. 223 specifies performance requirements that rear impact 
guards must meet before they can be installed on new trailers or 
semitrailers. It specifies strength and energy absorption requirements, 
as well as test procedures that manufacturers and NHTSA will use to 
determine compliance with the standard. The standard also requires the 
guard manufacturer to permanently label the impact guard to certify 
that it meets the requirements and to provide instructions on the 
proper installation of the guard.
    FMVSS No. 224 requires that most new trailers and semitrailers with 
a GVWR of 10,000 pounds or more be equipped with a rear impact guard 
meeting the requirements of FMVSS No. 223. The guards must extend 
laterally to within 4 inches of the sides of the trailer, have a ground 
clearance of no more than 22 inches, and be placed as close as possible 
to, but not more than 12 inches from, the rear of the vehicle. To 
ensure that the guard will perform properly, the standard also requires 
it to be mounted on the trailer or semitrailer in accordance with the 
installation instructions provided by the guard manufacturer.
    On September 1, 1999, FHWA published a final rule amending the 
FMCSRs to require trailers and semitrailers manufactured on or after 
January 26, 1998, with a GVWR of 10,000 pounds or more, be equipped 
with rear impact guards that meet the requirements of FMVSS No. 223. 
The rear impact guards must be installed to ensure that the trailer or 
semitrailer meets the rear end protection requirements of FMVSS No. 
224. This rule was intended to ensure that the rear impact protection 
requirements of the FMCSRs are consistent with the FMVSS (64 FR 47703).
    As stated previously, NHTSA published two final rules on November 
19, 2004, relating to rear impact guards. NHTSA amended the labeling 
requirement in FMVSS No. 223 to permit the rear impact guard 
certification label to be mounted on either the forward- or rearward-
facing surface of the horizontal member of the guard (69 FR 67660), and 
amended the applicability section of FMVSS No. 224 to exclude RCC 
horizontal discharge semitrailers from the requirements of the standard 
(69 FR 67663). However, neither of NHTSA's November 2004 amendments to 
the FMVSS has been incorporated into the corresponding rear impact 
requirements in section 393.86 of the FMCSRs.

B. History of Appendix G Requirements

    Section 210 of the 1984 Act required the Secretary of 
Transportation to establish standards for the annual or more frequent 
(i.e., periodic) inspection of all CMVs engaged in interstate or 
foreign commerce (49 U.S.C. 31142(b)). In response, FHWA adopted new 
section 396.17 on December 7, 1988, which requires all CMVs to be 
inspected at least once every 12 months (53 FR 49380, as amended on 
Dec. 8, 1989 (54 FR 50722)). The rule was based largely on (1) the CVSA 
vehicle out-of-service criteria, and (2) the vehicle portion of the 
FHWA National Uniform Driver-Vehicle Inspection Procedure (NUD-VIP). 
The latter was used as the standard for successful completion of the 
annual inspection, and the details of the required inspection were 
spelled out in Appendix G to the FMCSRs, also promulgated by the final 
rule. FHWA noted that utilization of the FHWA NUD-VIP would (1) provide 
the necessary inspection-related pass/fail criteria for the periodic 
inspection at a more stringent level than the vehicle out-of-service 
criteria, and (2) provide the proper level of Federal oversight in 
establishing and revising the criteria.

V. Discussion of Proposed Rulemaking

A. Rear Impact Guards in Appendix G

    Rear impact guards are not included on the list of items in 
Appendix G that must be examined during the annual inspection required 
by section 396.17. This means that a vehicle could pass the annual 
inspection with a missing or damaged rear impact guard. However, the 
operation of the vehicle with a missing or damaged rear impact guard 
would be a violation of the FMCSRs, and according to CVSA policy, a 
CVSA inspection decal would not be issued if the vehicle were 
inspected.
    In its petition, CVSA requested that the Agency amend Appendix G to 
include specific language regarding the inspection of rear impact 
guards during annual inspections. The petition stated:

    A vehicle's rear impact guard/rear end protection is inspected 
roadside as part of the North American Standard Inspection Program. 
However, the majority of commercial motor vehicles do not come into 
contact with an inspector on an annual basis . . .
    According to data available through FMCSA's Analysis and 
Information Online web page, in fiscal year 2017 inspectors 
document[ed] more than 2,300 violations related to rear impact 
guards and rear end protection, more than half of which are for 
components that are missing, damaged or improperly constructed. 
Including rear impact guards and rear end protection in the periodic 
inspection requirements in Appendix G will call additional attention 
to this critical safety component and help ensure that each vehicle 
is checked at least once a year, improving compliance and helping to 
prevent fatalities and injuries when rear-end collisions occur. 
Furthermore, including rear impact guards and rear end protection in 
the periodic annual inspection standards will harmonize U.S. 
regulations with those in Canada and Mexico, which include rear 
impact guards and rear end protection as part of their annual 
inspection programs.

    The Karths' petition requested that FMCSA ``Add underride guards to

[[Page 85574]]

Appendix G and 396.17 (Periodic Inspection),'' but did not provide any 
supporting information.\6\
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    \6\ The Karths' petition also requested that FMCSA change the 
definition of Out of Service Criteria to read as follows: ``A 
vehicle(s) is placed out-of-service only when by reason of its 
mechanical condition or loading it is determined to be so imminently 
hazardous as to likely cause an accident or breakdown, or when such 
condition(s) would likely contribute to loss of control of the 
vehicle(s) by the driver, or to allow death and/or injuries from 
truck underride (passenger compartment intrusion) upon collision.'' 
[Emphasis in original.] FMCSA notes that the North American Standard 
Out-of-Service Criteria are developed and maintained by CVSA, and 
are not part of the FMCSR. As such, any amendments to the Out-of-
Service criteria are outside the scope of this rulemaking.
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    In addition, several Senators asked GAO to review data on truck 
underride crashes and information on underride guards. Between January 
2018 and March 2019, GAO conducted a performance audit that included a 
literature review and interviews with stakeholders familiar with 
underride crashes and guards.
    GAO Report GAO-19-264, published in March 2019, examines (1) the 
data that DOT reports on underride crashes, and (2) the development and 
use of underride guard technologies in the United States. GAO analyzed 
DOT's underride crash data for 2008 through 2017; reviewed NHTSA's 
proposed regulations and research on new guard technologies (80 FR 
78418, Dec. 16, 2015); and interviewed stakeholders including DOT 
officials, industry and safety groups, and State officials.
    With respect to FMCSA, the GAO concluded that the lack of an annual 
inspection requirement for rear impact guards potentially affects the 
safety of the traveling public and FMCSA's ability to achieve its 
safety mission. GAO stated that ``without explicitly including the 
inspection of the rear guard in Appendix G, there is no assurance that 
rear guards in operation will be inspected at least annually to ensure 
they perform as designed to prevent or mitigate an underride crash.'' 
In its ``Recommendations for Executive Action,'' GAO stated:

    The Administrator of the Federal Motor Carrier Safety 
Administration should revise Appendix G of the agency's regulations 
to require that rear guards are inspected during commercial vehicle 
annual inspections. (Recommendation 3)

    While the GAO review was being conducted, FMCSA received 
Congressional correspondence urging the Agency to ``add `underride 
guards' to the list of annual inspection items required [for] trucks 
and trailers under current periodic inspection regulations.'' The 
Senators stated:

    Requiring an annual inspection of rear underride guards, in 
addition to the current list of items already checked during annual 
inspections, would ensure trucks and trailers are complying with 
regulations already on the books. Therefore, we ask that FMCSA 
consider initiating a rulemaking to amend federal Minimum Periodic 
Inspection Standards to include a subsection on ``underride 
guards.'' Should you decide to move forward with this rulemaking, we 
respectfully request that an inserted subsection be identical to the 
already mandated minimum standards of rear impact guards and rear 
end protection.

    FMCSA agrees that the failure of a motor carrier to properly 
maintain an important safety feature such as a rear impact guard should 
result in the vehicle failing the required annual inspection. Given 
that rear impact guards have been included in part 393 for more than 65 
years, and that part 396 requires all parts and accessories specified 
in part 393--to include rear impact guards--to be in safe and proper 
operating condition at all times, FMCSA assumes that the majority of 
motor carriers currently inspect rear impact guards annually despite 
the absence of an explicit requirement to do so in Appendix G. 
According to FMCSA's Motor Carrier Management Information System 
(MCMIS), out of approximately 5.8 million regulatory violations 
identified during inspections in 2017, only approximately 2,400--or 
about 0.041 percent--were rear impact guard violations.
    For these reasons, and as discussed in the Regulatory Analyses 
section, the Agency believes that amending Appendix G to include a 
review of rear impact guards and maintain consistency with part 393, 
would result in only a de minimis economic impact. FMCSA proposes to 
amend Appendix G to require rear impact guards to be inspected as part 
of the annual inspection required under Sec.  396.17.

B. Rear Impact Guard Labeling

    NHTSA amended the labeling requirement in FMVSS No. 223 on November 
19, 2004, to permit the rear impact guard certification label to be 
mounted on either the forward- or rearward-facing surface of the 
horizontal member of the guard, if the label does not interfere with 
the retroreflective sheeting required by the FMVSS. Prior to the 
amendment, the certification label was required to be mounted on the 
forward-facing surface of the horizontal member, 12 inches inboard of 
the right end of the guard. NHTSA decided to allow rear impact guard 
manufacturers flexibility in determining where to place the label on 
the horizontal member of the guard so that they can minimize exposure 
to operational and environmental damage, while at the same time 
ensuring that it is readily accessible for visual inspection. FMCSA 
proposes to amend the labeling requirements in section 393.86(a)(6) to 
be consistent with the changes made by NHTSA in 2004.

C. Applicability--RCC Horizontal Discharge Trailers

    Also on November 19, 2004, NHTSA amended the applicability section 
of FMVSS No. 224 to exclude RCC horizontal discharge trailers from its 
requirements. RCC horizontal discharge trailers are used to deliver 
asphalt to road construction sites and gradually to discharge asphalt 
mix into 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. A rear impact guard required by the FMVSS would 
prevent the RCC horizontal discharge trailer from effectively 
connecting with a paving machine. NHTSA concluded that installation of 
rear impact guards on RCC horizontal discharge trailers would interfere 
with the intended function of the trailers and therefore exempted them 
from the standard.
    FMCSA proposes to amend (1) Sec.  393.5 to add a definition of road 
construction controlled horizontal discharge trailer consistent with 
the NHTSA definition in FMVSS No. 224, and (2) Sec.  393.86(a)(1) and 
Sec.  393.86(b)(1) to make it clear that RCC horizontal discharge 
trailers are not required to have a rear impact guard installed, 
consistent with the amendments made by NHTSA in 2004.
    Although neither of NHTSA's November 2004 amendments was 
incorporated into the rear impact requirements in Sec.  393.86, FMCSA 
is not aware of any enforcement or compliance issues that have arisen 
with respect to these items in the ensuing 15 years. As such, FMCSA 
does not expect the proposed amendments to have any impact on motor 
carriers.

VI. International Impacts

    The FMCSRs, and any exceptions to the FMCSRs, apply only within the 
United States (and, in some cases, U.S. territories). Motor carriers 
and drivers are subject to the laws and regulations of the countries in 
which they operate, unless an international agreement states otherwise. 
Drivers and carriers should be aware of the regulatory differences 
among nations.

[[Page 85575]]

VII. Section-by-Section Analysis

A. Part 393--Parts and Accessories Necessary for Safe Operation

    Section 393.86(a)(1) (General requirements for trailers and 
semitrailers manufactured on or after January 26, 1998).
    FMCSA proposes to amend this section by adding RCC horizontal 
discharge trailers to the list of vehicles that are not required to 
have a rear impact guard.
    Section 393.86(a)(6) (Certification and labeling requirements for 
rear impact protection guards).
    FMCSA proposes to amend this section to clarify that the label may 
be on the forward- or rear-facing surface of the horizontal member of 
the guard, provided it does not interfere with the retroreflective 
sheeting required by the FMVSS.
    Section 393.86(b)(1) (Requirements for motor vehicles manufactured 
after December 31, 1952 (except trailers or semitrailers manufactured 
on or after January 26, 1998)).
    FMCSA proposes to amend this section by adding RCC horizontal 
discharge trailers to the list of vehicles that are not required to 
have a rear impact guard.

B. Appendix G to Subchapter B of Chapter III (Minimum Periodic 
Inspection Standards)

    FMCSA proposes to amend Appendix G by adding rear impact guards to 
the list of items required to be inspected pursuant to section 396.17.

VIII. Regulatory Analyses

A. Executive Order 12866 (Regulatory Planning and Review as 
Supplemented by Executive Order 13563 and DOT Regulations)

    The Office of Information and Regulatory Affairs determined that 
this proposed rule is not a significant regulatory action under section 
3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and 
Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), 
Improving Regulation and Regulatory Review, and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. This rule is also not significant within the meaning of DOT 
regulations (49 CFR 5.13(a)). Accordingly, the Office of Management and 
Budget has not reviewed it under these Orders.
    In response to rulemaking petitions and a recommendation from the 
GAO, FMCSA proposes to amend Appendix G to Subchapter B of Chapter III 
in title 49 CFR. This amendment would add rear impact guards to the 
list of items that must be examined as part of the required annual 
inspection for each CMV.
    Section 393.86(a) currently requires most trailers and semitrailers 
manufactured on or after January 26, 1998, to be equipped with rear 
impact guards. This proposed rule would not require installation or 
maintenance of rear impact guards beyond the current requirements in 
Sec.  393.86.
    The Agency does not expect this proposed rule to result in 
incremental costs or benefits beyond the baseline established in the 
FMCSRs. As required by 49 CFR 396.17, motor carriers currently complete 
annual inspections of all items identified in Appendix G. FMCSA assumes 
that motor carriers review rear impact guards in their annual 
inspection programs to remain in compliance with the current 
requirements in 49 CFR 396.3(a)(1), which states that rear impact 
guards must be installed and in safe and proper operating conditions at 
all times. Additionally, CMVs are subject to inspections conducted in 
accordance with the CVSA's North American Standard Inspection Program 
that may occur throughout the year, which include the examination of 
rear impact guards. According to MCMIS, most motor carriers comply with 
49 CFR 396.3(a)(1). Specifically, out of approximately 5.8 million 
regulatory violations identified during inspections in 2017, only 
approximately 2,400--or about 0.041 percent--were rear impact guard 
violations.
    FMCSA also proposes two minor changes to maintain consistency 
between the FMCSRs and NHTSA's FMVSS Nos. 223 and 224. As described 
above, these changes would provide consistent labeling requirements and 
would exclude RCC horizontal discharge semitrailers from the 
requirements of this standard. FMCSA does not expect these 
administrative changes to result in incremental impacts.

B. Executive Order 13771 Reducing Regulation and Controlling Regulatory 
Costs

    This proposed rule is expected to be neither an Executive Order 
13771 regulatory action nor an Executive Order 13771 deregulatory 
action because there would be no cost impacts resulting from the 
rule.\7\
---------------------------------------------------------------------------

    \7\ Executive Office of the President, Executive Order 13771 of 
January 30, 2017, Reducing Regulation and Controlling Regulatory 
Costs, 82 FR 9339-9341, February 3, 2017.
---------------------------------------------------------------------------

C. Regulatory Flexibility Act (Small Entities)

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.) 
requires Federal agencies to consider the effects of their regulatory 
actions on small businesses and other small entities and to minimize 
any significant economic impact. The term ``small entities'' 
encompasses small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields 
and governmental jurisdictions with populations of less than 50,000.\8\ 
Accordingly, DOT policy requires an analysis of the impact of all 
regulations on small entities and mandates that agencies strive to 
lessen any adverse effects on these businesses. Section 605 of the RFA 
allows an agency to certify a rule, in lieu of preparing an analysis, 
if the rulemaking is not expected to have a significant economic impact 
on a substantial number of small entities.
---------------------------------------------------------------------------

    \8\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.), see 
National Archives at http://www.archives.gov/federal-register/laws/regulaotry-flexibility/601.html.
---------------------------------------------------------------------------

    ``Small entity'' is defined in 5 U.S.C. 601(3) as having the same 
meaning as ``small business concern'' under Section 3 of the Small 
Business Act (SBA). This includes any small business concern that is 
independently owned and operated, and is not dominant in its field of 
operation. Section 601(4), likewise, includes within the definition of 
``small entities'' not-for-profit enterprises that are independently 
owned and operated, and are not dominant in their fields of operation. 
In addition, Section 601(5) defines ``small entities'' as governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000. The Small Business 
Administration develops the size standards used to classify entities as 
small, and establishes separate standards for each industry, as defined 
by the North American Industry Classification System (NAICS). The motor 
carriers that would be affected by this rule fall into many different 
industry codes with differing size standards. Because this rule would 
impact all motor carriers, including those considered to be small 
entities, FMCSA anticipates that this rule would impact a substantial 
number of small entities.
    However, FMCSA has determined that this rule would not have a 
significant impact on the affected entities. This rule would require 
motor carriers to include rear impact guards on the list of items that 
must be examined as part of the required annual CMV

[[Page 85576]]

inspection completed. FMCSA believes that motor carriers have been 
inspecting the rear impact guards on their CMVs to remain in compliance 
with requirements that have been in the FMCSRs since 1952. As such, 
FMCSA does not expect this proposed rule to have incremental impacts on 
the affected entities. The Agency also does not expect the two minor 
changes proposed to maintain consistency between the FMCSRs and NHTSA's 
FMVSS Nos. 223 and 224 to result in incremental impacts. The Agency 
expects the impacts of this proposed rule would be de minimis, and 
therefore, does not expect the proposed rule to have a significant 
economic impact on a substantial number of small entities.
    Consequently, I certify that the proposed action will not have a 
significant economic impact on a substantial number of small entities. 
FMCSA invites comment from members of the public who believe there will 
be a significant impact either on small businesses or on governmental 
jurisdictions with a population of less than 50,000.

D. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this proposed rule so that they can better evaluate 
its effects on themselves and participate in the rulemaking initiative. 
If the proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult the person listed 
under FOR FURTHER INFORMATION CONTACT.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $165 million (which is the 
value equivalent of $100,000,000 in 1995, adjusted for inflation to 
2018 levels) or more in any one year. Though this proposed rule would 
not result in such an expenditure, the Agency does discuss the effects 
of this rule elsewhere in this preamble.

F. Paperwork Reduction Act

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. Executive Order 13132 (Federalism)

    A rule has implications for federalism under Section 1(a) of 
Executive Order 13132 if it has ``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.'' FMCSA determined that this proposal 
would not have substantial direct costs on or for States, nor would it 
limit the policymaking discretion of States. Nothing in this document 
preempts any State law or regulation. Therefore, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Impact Statement.

H. Executive Order 12988 (Civil Justice Reform)

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

I. Executive Order 13045 (Protection of Children)

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires 
agencies issuing ``economically significant'' rules, if the regulation 
also concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. The Agency determined this proposed rule is not 
economically significant. Therefore, no analysis of the impacts on 
children is required. In any event, the Agency does not anticipate that 
this regulatory action could in any respect present an environmental or 
safety risk that could disproportionately affect children.

J. Executive Order 12630 (Taking of Private Property)

    FMCSA reviewed this proposed rule in accordance with Executive 
Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights, and has determined it will 
not result in the effect a taking of private property or otherwise have 
taking implications.

K. Privacy

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to 
conduct a privacy impact assessment (PIA) of a regulation that will 
affect the privacy of individuals. The Agency completed a Privacy 
Threshold Assessment (PTA) to assist in analyzing the new rulemaking to 
determine if it creates privacy risk for individuals that could require 
other entities to collect, use, store or share personally identifiable 
information (PII), or deploy technologies as a result of this 
rulemaking implementation. The PTA is also used to identify programs 
and systems that are privacy sensitive and help determine whether 
additional privacy compliance, such a PIA or System of Records Notice 
(SORN), is required for a particular rulemaking or system. Based on the 
preliminary adjudication of the PTA by the FMCSA Privacy Officer, this 
rule does not require the collection of PII and the Agency is not 
required to conduct a PIA. The PTA has been submitted to FMCSA's 
Privacy Officer for review and preliminary adjudication and to DOT's 
Privacy Officer for review and final adjudication. The DOT Privacy 
Office has determined that this rulemaking does not create privacy 
risk.

L. Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program.

M. Executive Order 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply,

[[Page 85577]]

Distribution, or Use. The Agency has determined that it is not a 
``significant energy action'' under that order because it is not a 
``significant regulatory action'' likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, it 
does not require a Statement of Energy Effects under Executive Order 
13211. The Administrator of the Office of Information and Regulatory 
Affairs has not designated it as a significant energy action. 
Therefore, it does not require a Statement of Energy Effects under 
Executive Order 13211.

N. Executive Order 13175 (Indian Tribal Governments)

    This rule does not have Tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian Tribes, on the relationship between the Federal Government and 
Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.

O. National Technology Transfer and Advancement Act (Technical 
Standards)

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards (e.g., specifications of materials, performance, 
design, or operation; test methods; sampling procedures; and related 
management systems practices) are standards that are developed or 
adopted by voluntary consensus standards bodies. This rule does not use 
technical standards. Therefore, FMCSA did not consider the use of 
voluntary consensus standards.

P. National Environmental Policy Act of 1969

    FMCSA analyzed this NPRM for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined this action is categorically excluded from further analysis 
and documentation in an environmental assessment or environmental 
impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), 
Appendix 2, paragraph (aa). The Categorical Exclusion (CE) in paragraph 
(aa) covers regulations requiring motor carriers, their officers, 
drivers, agents, representatives, and employees directly in control of 
CMVs to inspect, repair, and provide maintenance for every CMV used on 
a public road. The proposed requirements in this rule are covered by 
this CE and the NPRM does not have any effect on the quality of the 
environment. The CE determination is available for inspection or 
copying in the regulations.gov website listed under ADDRESSES.

Q. Executive Order 13783 (Promoting Energy Independence and Economic 
Growth)

    Executive Order 13783 directs executive departments and agencies to 
review existing regulations that potentially burden the development or 
use of domestically produced energy resources, and to appropriately 
suspend, revise, or rescind those that unduly burden the development of 
domestic energy resources. In accordance with Executive Order 13783, 
DOT prepared and submitted a report to the Director of OMB that 
provides specific recommendations that, to the extent permitted by law, 
could alleviate or eliminate aspects of agency action that burden 
domestic energy production. This proposed rule has not been identified 
by DOT under Executive Order 13783 as potentially alleviating 
unnecessary burdens on domestic energy production.

List of Subjects

49 CFR Part 393

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

49 CFR Part 399

    Motor carriers, Motor vehicle safety, Occupational safety and 
health.

    In consideration of the foregoing, FMCSA proposes to amend 49 CFR 
parts 393 and 399 as follows:

PART 393--PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION

0
1. The authority citation for part 393 continues to read as follows:

    Authority: 49 U.S.C. 31136, 31151, and 31502; sec. 1041(b) of 
Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); sec. 5301 and 5524 of 
Pub. L. 114-94, 129 Stat. 1312, 1543, 1560; and 49 CFR 1.87.

0
2. Amend Sec.  393.5 by adding a definition for Road construction 
controlled horizontal discharge trailer in alphabetical order to read 
as follows:


Sec.  393.5  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.
* * * * *
0
3. In Sec.  393.86 revise paragraphs (a)(1), (6) and (b)(1) to read as 
follows:


Sec.  393.86  Rear impact guards and rear end protection.

    (a)(1) General requirements for trailers and semitrailers 
manufactured on or after January 26, 1998. Each trailer and semitrailer 
with a gross vehicle weight rating of 4,536 kg (10,000 pounds) or more, 
and manufactured on or after January 26, 1998, must be equipped with a 
rear impact guard that meets the requirements of Federal Motor Vehicle 
Safety Standard No. 223 (49 CFR 571.223) in effect at the time the 
vehicle was manufactured. When the rear impact guard is installed on 
the trailer or semitrailer, the vehicle must, at a minimum, meet the 
requirements of FMVSS No. 224 (49 CFR 571.224) in effect at the time 
the vehicle was manufactured. The requirements of paragraph (a) of this 
section do not apply to pole trailers (as defined in Sec.  390.5 of 
this chapter); pulpwood trailers, low chassis vehicles, special purpose 
vehicles, wheels back vehicles (as defined in Sec.  393.5), road 
construction controlled horizontal discharge trailers; and trailers 
towed in driveaway-towaway operations (as defined in Sec.  390.5).
* * * * *
    (6) Certification and labeling requirements for rear impact 
protection guards. Each rear impact guard used to satisfy the 
requirements of paragraph (a)(1) of this section must be permanently 
marked or labeled as required by FMVSS No. 223 (49 CFR 571.223, S5.3). 
The label shall be placed on the forward or rearward facing surface of 
the horizontal member of the guard, provided that the label does not 
interfere with the retroreflective sheeting required by S5.7.1.4.1(c) 
of FMVSS No. 108 (49 CFR 571.108), and is readily accessible for visual 
inspection. The certification label must contain the following 
information:
* * * * *
    (b)(1) Requirements for motor vehicles manufactured after December 
31, 1952 (except trailers or semitrailers manufactured on or after 
January 26, 1998). Each motor vehicle manufactured after December 31, 
1952, (except truck

[[Page 85578]]

tractors, pole trailers, pulpwood trailers, road construction 
controlled horizontal discharge trailers, or vehicles in driveaway-
towaway operations) in which the vertical distance between the rear 
bottom edge of the body (or the chassis assembly if the chassis is the 
rearmost part of the vehicle) and the ground is greater than 76.2 cm 
(30 inches) when the motor vehicle is empty, shall be equipped with a 
rear impact guard(s). The rear impact guard(s) must be installed and 
maintained in such a manner that:
* * * * *

PART 399--EMPLOYEE SAFETY AND HEALTH STANDARDS

0
4. The authority citation for part 399 continues to read as follows:

    Authority: 49 U.S.C. 31502 and 49 CFR 1.87.

0
5. Amend Appendix G to Subchapter B of Chapter III by adding Section 15 
as follows:

Appendix G to Subchapter B of Chapter III--Minimum Periodic Inspection 
Standards

* * * * *

15. Rear Impact Guard

    a. Trailers and semitrailers with a GVWR of 4,536 kg (10,000 
lbs) or more, manufactured on or after January 26, 1998 (see 
exceptions in Sec.  393.86(a)(1)).
    1. Missing guard.
    2. Guard is not securely attached to trailer.
    3. Guard does not extend to within 100 mm (4 inches) of each 
side extremity of the vehicle, and not beyond.
    4. Guard is more than 560 mm (22 inches) above the ground.
    5. Guard is more than 305 mm (12 inches) forward of the rear 
extremity of the vehicle.
    6. Guard does not have a cross sectional vertical height of at 
least 100 mm (4 inches) across its entire width.
    b. Commercial motor vehicles manufactured after December 31, 
1952 (except trailers and semitrailers manufactured on or after 
January 26, 1998) (see exceptions in Sec.  393.86(b)(1) and Sec.  
393.86(b)(3)).
    1. Missing guard.
    2. Guard is not securely attached to trailer by bolts, welding, 
or other comparable means.
    3. Guard is more than 762 mm (30 inches) above the ground.
    4. Guard does not extend to within 457 mm (18 inches) of each 
side extremity of the vehicle.
    5. Guard is more than 610 mm (24 inches) forward of the rear 
extremity of the vehicle.

    Issued under authority delegated in 49 CFR 1.87.
James W. Deck,
Deputy Administrator.
[FR Doc. 2020-27502 Filed 12-28-20; 8:45 am]
BILLING CODE 4910-EX-P