[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Proposed Rules]
[Pages 5844-5845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01523]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2023-0001]


Federal Motor Vehicle Safety Standards; Rear Impact Guards; 
Denial of Petition for Rulemaking

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

ACTION: Denial of petition for rulemaking.

-----------------------------------------------------------------------

SUMMARY: This document denies a petition for rulemaking from the 
Commercial Vehicle Safety Alliance (CVSA) requesting that NHTSA amend 
Federal Motor Vehicle Safety Standard (FMVSS) No. 223, ``Rear Impact 
Guards,'' to remove the certification label requirement in S5.3 of the 
standard. The agency is denying the petition because the requested 
amendment would compromise the enforcement of the rear impact guard 
standard. Limiting the ability to identify noncompliant products would 
reduce the effectiveness of the standard and increase the safety risk 
to the motoring public.

DATES: January 30, 2023.

ADDRESSES: National Highway Traffic Safety Administration, 1200 New 
Jersey Avenue SE, West Building, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: 
    For technical issues: Ms. Lina Valivullah, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue SE, West Building, 
Washington, DC 20590, (telephone) 202-366-8786, (email) 
[email protected].
    For legal issues: Ms. Callie Roach, Office of the Chief Counsel, 
National Highway Traffic Safety Administration, 1200 New Jersey Avenue 
SE, West Building, Washington, DC 20590, (telephone) 202-366-2992, 
(email) [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Rear impact guards for trailers reduce the risk to passenger 
vehicle occupants in crashes in which a passenger vehicle impacts the 
rear end of a trailer or semitrailer. Rear impact guards must be 
certified as meeting applicable safety standards. S5.3 of FMVSS No. 223 
and S5.1 of FMVSS No. 224 include the requirements relevant to this 
petition.
    The regulation at 49 CFR 571.223, S5.3, provides that each guard 
shall be permanently labeled with the information specified in S5.3(a) 
through (c) of FMVSS No. 223. The information shall be in English and 
in letters that are at least 2.5 mm high. 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 
specified information includes: (a) the guard manufacturer's name and 
address, (b) the statement: ``Manufactured in __'' (inserting the month 
and year of guard manufacture), and (c) the letters ``DOT,'' 
constituting a certification by the guard manufacturer that the guard 
conforms to all requirements of this standard. The regulation at 49 CFR 
571.224, S5.1, requires that each vehicle shall be equipped with a rear 
impact guard certified as meeting FMVSS No. 223.

The Petition

    NHTSA received a petition for rulemaking from the Commercial 
Vehicle Safety Alliance (CVSA) \1\ on March 12, 2019, requesting NHTSA 
to initiate a rulemaking proceeding to amend FMVSS No. 223, ``Rear 
Impact Guards,'' by removing the certification label requirement in 
S5.3 of the standard. CVSA provided the following justification for its 
petition for rulemaking regarding the certification label requirement.
---------------------------------------------------------------------------

    \1\ CVSA describes itself as a nonprofit association comprised 
of local, state, provincial, territorial, and federal commercial 
motor vehicle safety officials and industry representatives. CVSA 
aims to achieve uniformity, compatibility, and reciprocity of 
commercial motor vehicle inspections and enforcement by certified 
inspectors dedicated to driver and vehicle safety throughout Canada, 
Mexico, and the United States. https://www.cvsa.org/about-cvsa/.
---------------------------------------------------------------------------

    1. CVSA states that the certification label requirement ``is 
resulting in the citation of rear impact guards that otherwise meet the 
physical requirements and have no negative impact on safety.'' CVSA 
states that they are also petitioning the Federal Motor Carrier Safety 
Administration (FMCSA) to remove the certification label requirement in 
the Federal Motor Carrier Safety Regulations (FMCSR) and that amending 
the FMVSS would assist with that change.
    2. CVSA claims that ``certification labels frequently wear, fade or 
are removed during repair'' and that ``motor carriers are unable to 
obtain new certification labels from the original trailer manufacturers 
because they can no longer guarantee that the rear impact guard meets 
the FMVSS manufacturing standard.'' CVSA says that ``there are no 
reasonable options to meet the certification requirements'' as a 
result.
    3. CVSA believes removing the certification label requirement would 
``eliminate confusion and inconsistency in enforcement,'' which CVSA 
states would be beneficial, ``while not negatively impacting safety as 
the physical components of the guard will still be inspected to the 
same standard during a roadside inspection.''

Analysis of the Petition

    NHTSA believes that the petitioner's requested amendment to FMVSS 
No. 223 could reduce the safety provided by rear impact guards on 
trailers and semitrailers. Under 49 U.S.C. 30112(a) (Section 30112(a) 
of the National Traffic and Motor Vehicle Safety Act), there is a 
general prohibition against manufacturing for sale, selling, offering 
for sale, introducing or delivering for introduction in interstate 
commerce, or importing into the United States any motor vehicle or item 
of motor vehicle equipment manufactured on or after the date an 
applicable motor vehicle safety standard is in effect unless the 
vehicle or equipment both complies with the standard and is covered by 
a certification issued under section 30115. Section 30115 requires 
manufacturers of vehicles and manufacturers of motor vehicle equipment 
subject to motor vehicle safety standards to certify that the vehicle 
or equipment complies with all applicable FMVSS. Section 30115 further 
specifies that certification of equipment may be shown by a label or 
tag on the equipment or on the outside of the container in which the 
equipment is delivered. Pursuant to these authorities, NHTSA issued the 
certification labeling requirements for rear impact guards.
    In issuing FMVSS No. 223 and FMVSS No. 224, NHTSA specifically 
accounted for the burden on small trailer manufacturers. In order to 
lessen to the extent reasonable the burden associated with compliance 
testing on small manufacturers, NHTSA issued two standards. FMVSS No. 
223 establishes the strength and certification requirements for rear 
impact guards and FMVSS No. 224 establishes requirements for certain 
trailers to be

[[Page 5845]]

equipped with certified rear impact guards. A trailer manufacturer has 
the option to either manufacture their own rear impact guards that 
comply with the equipment standard or may purchase and install guards 
from a guard manufacturer that has certified the guards as complying 
with FMVSS No. 223.
    In the January 1996 final rule (61 FR 2004) that established FMVSS 
No. 223, NHTSA described its rationale for requiring each rear impact 
guard to be labeled. This rationale was provided in response to a 
request that trailer manufacturers not be required to affix a 
certification to rear impact guards that they manufacture and install 
on trailers they produce. The commenters asked that the trailer's 
certification label be allowed to serve as the certification label for 
the rear impact guard. As NHTSA explained in the final rule, allowing 
some guard manufacturers to omit the label would be impractical from an 
enforcement standpoint. If all of the guards were not labeled, vehicle 
inspectors would not be able to tell whether the guard was certified by 
the guard/vehicle manufacturer as part of the vehicle or whether the 
vehicle manufacturer installed a guard purchased from a guard 
manufacturer that neglected to make the required certification.\2\ This 
would reduce the likelihood of non-compliant guards being identified, 
which would increase the safety risk to the motoring public. 
Additionally, without the labeling requirement, it would be more 
difficult for NHTSA to identify trends that may indicate a particular 
rear impact guard contains a safety related defect. If a rear impact 
guard were to be involved in a crash, it may be difficult to know who 
the certifying entity was if there were no permanent labeling on it. 
This would inhibit the ability of the investigators to determine a 
potential safety trend involved with the subject equipment item. 
Accordingly, NHTSA maintains its long-standing position \3\ that 
removing a labeling requirement from the FMVSS limits the ability to 
identify products that do not meet all applicable Federal motor vehicle 
safety standards and compromises the enforceability of those standards.
---------------------------------------------------------------------------

    \2\ January 24, 1996, 61 FR 2001.
    \3\ See, e.g., April 18, 2022 notice announcing the denial of 
Great Dane's petition for a decision that a noncompliance involving 
missing FMVSS No. 223 certification labels is inconsequential as it 
relates to motor vehicle safety (87 FR 23018).
---------------------------------------------------------------------------

    NHTSA has considered the assertion that compliance labels ``wear, 
fade or are removed during repair,'' and does not believe that this 
indicates a current compliance issue with the requirements in FMVSS No. 
223. FMVSS No. 223 specifies permanent labeling of the rear impact 
guard on the forward- or rearward-facing surface of the horizontal 
member of the guard. NHTSA does not specify a particular means (i.e., 
labeling, etching, branding, stamping, or embossing) by which the 
manufacturer must achieve permanency. Thus, for NHTSA compliance 
purposes, the guard label is considered permanent if it satisfies the 
certification requirements specified in 49 CFR part 567. Section 
567.4(b) specifies, ``The label shall, unless riveted, be permanently 
affixed in such a manner that it cannot be removed without destroying 
or defacing it.'' The means of achieving permanence and the exact 
placement of the label are left to the discretion of the manufacturer. 
NHTSA does not believe that the wearing or fading of labels that meet 
this requirement for permanency would result in a significant 
impairment of NHTSA's enforcement capabilities.

Conclusion

    NHTSA has reviewed the petition for rulemaking submitted by CVSA 
requesting that NHTSA amend FMVSS No. 223 by removing the labeling 
requirement for rear impact guards on trailers and semitrailers. The 
agency is denying the request because removing the labeling requirement 
for rear impact guards would compromise the enforceability of FMVSS No. 
223 and thereby increase the safety risk to the motoring public.
    In accordance with 49 U.S.C. 30162 and 49 CFR part 552, the 
petition for rulemaking from CVSA is hereby denied.

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; 
delegation of authority at 49 CFR 1.95 and 501.8.

Raymond R. Posten,
Associate Administrator for Rulemaking.
[FR Doc. 2023-01523 Filed 1-27-23; 8:45 am]
BILLING CODE 4910-59-P