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###### Department of Transportation

###### National Highway Traffic Safety Administration 

          - 49 CFR Part 571 
          - [Docket No. NHTSA-2002-11875; Notice 2] 
          - RIN 2127-AI04 

# AGENCY:

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

# ACTION:

Final rule. 

# SUMMARY:

This document amends the Federal motor vehicle safety standard on rear impact guards (underride guards). Under the current requirement, rear impact guards must be permanently labeled with the guard manufacturer's name and address, the month and year in which the guard was manufactured, and the letters “DOT.” In response to petitions for rulemaking, the agency issued a notice of proposed rulemaking (NPRM) proposing to allow manufacturers to place the label on the rear impact guard where it may be less exposed to damage, provided that the label does not interfere with the required retroreflective sheeting and is readily accessible for visual inspection. No comments were received. Thus, in this document, the agency is adopting the proposal as set forth in the notice of proposed rulemaking. 

# DATES:

This final rule is effective January 18, 2005. 

*Petitions:*                         Petitions for reconsideration must be received by January 3, 2005.                     

# ADDRESSES:

Petitions for reconsideration should refer to DOT Docket No. NHTSA-2002-11875 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:                         *Michael.Huntley@nhtsa.dot.gov*).                     

                        For legal issues, you may call Mr. George Feygin, Office of Chief Counsel, (Telephone: 202-366-2992) (Fax: 202-366-3820) (E-Mail:                         *George.Feygin@nhtsa.dot.gov*).                     

You may send mail to either of these officials at: National Highway Traffic Safety Administration, 400 7th Street, SW., Washington, DC 20590. 

# SUPPLEMENTARY INFORMATION:

## I. Background 

                    On January 24, 1996, NHTSA published a final rule establishing two Federal motor vehicle safety standards (FMVSSs) to address the problem of rear underride crashes.[1]                                          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 can result in severe injuries and fatalities to the light vehicle occupants due to occupant contact with the rear end of the heavy truck. The final rule established two standards that operate together to reduce the number of injuries and fatalities resulting from underride crashes.                 

The first standard, FMVSS No. 223, “Rear impact guards,” specifies performance requirements that rear impact guards (underride guards) must meet before they can be installed on new trailers. It specifies strength requirements and test procedures that NHTSA uses to determine compliance with those requirements. FMVSS No. 223 also requires the underride guard manufacturer to provide instructions on the proper installation of the guard. Finally, the underride guards must be permanently labeled with the guard manufacturer's name and address, the month and year in which the underride guard was manufactured, and the letters “DOT”. The letters constitute certification by the manufacturer that the underride guard meets all the performance requirements of FMVSS No. 223. The standard requires manufacturers to place the label on the forward-facing surface of the horizontal member of the guard, 305 mm (12 inches) inboard of the right end of the guard, so that, as the guard is mounted on the vehicle, the label will be readily visible to Federal Motor Carrier Safety Administration (FMCSA) inspectors. 

                    The second standard, FMVSS No. 224, “Rear impact protection, requires most new trailers with a GVWR of 4,536 kilograms (10,000 pounds) or more to be equipped with an underride guard meeting FMVSS No. 223. FMVSS No. 224 specifies requirements regarding the location of the underride guard relative to the rear of the trailer. It also requires that the underride guard be mounted on                           ( print page 67661)                        the trailer in accordance with the instructions of the guard manufacturer.                 

Both standards became effective on January 26, 1998. 

## II. Petitions 

                    On December 10, 1998, NHTSA received a petition for rulemaking from the Truck Trailer Manufacturers Association (TTMA) requesting that the agency amend FMVSS No. 223 by eliminating the underride guard labeling requirement.[2]                                          TTMA argued that requiring a label on the underride guard is redundant for trailer manufacturers that manufacture their own guards because trailer manufacturers are already required to place a label on their trailers to certify their compliance with all FMVSSs.[3] 

                    On December 30, 1998, NHTSA received a similar petition from the American Trucking Associations (ATA),[4]                                          and on January 18, 1999, another petition from Compass Transportation, Inc.[5]                                          Both petitioners argued that the underride guard labeling requirement is redundant and requested that the agency eliminate the labeling requirement from FMVSS No. 223.                 

TTMA requested that if NHTSA declined to eliminate the guard labeling requirement, the agency should instead eliminate the requirement that the guard be labeled permanently. TTMA argued that it is unlikely that any label will remain on the guard for the life of the trailer. As a final alternative, TTMA requested that NHTSA allow manufacturers the flexibility to place the label where it may be the least exposed to damage from operational and environmental factors. 

## III. Notice of Proposed Rulemaking 

                    NHTSA published an NPRM responding to the three petitions for rulemaking on March 29, 2002.[6] 

### A. Guard Labeling Requirement 

In the NPRM, the agency denied the petitioners' request to eliminate the labeling requirement. The agency reasoned that the separate equipment (FMVSS No. 223) and vehicle (FMVSS No. 224) standards allow a trailer manufacturer to install an underride guard produced by a guard manufacturer rather than by the trailer manufacturer itself. This regulatory scheme allows the trailer manufacturers to avoid the cost of developing compliant underride guards by purchasing pre-certified underride guards from underride guard manufacturers. 

                    In order to facilitate enforcement, NHTSA uses the guard certification label to determine whether an underride guard was manufactured and certified by the trailer manufacturer or purchased from an underride guard manufacturer who certified the guard prior to selling that item of equipment to the trailer manufacturer. If NHTSA did not require the underride guards to be labeled, our enforcement personnel would not be able to conclude readily which party certified an underride guard to the requirements of FMVSS No. 223.[7] 

Finally, the agency said that it did not believe that affixing the required label is a significant burden. 

### B. Permanency Requirement 

                    In the NPRM, the agency also denied petitioners' request to eliminate the requirement that the guard label be permanent. The agency acknowledged that the permanency of the label is not significant for the purpose of NHTSA's compliance testing, since the agency only tests new guards for compliance with FMVSS No. 223. However, the agency noted that the Federal Highway Administration (FHWA) recently amended its rear impact regulations to make them consistent with Standard Nos. 223 and 224.[8]                                          [9]                                          The FHWA included a requirement for a permanent label, in part, “to help motor carriers quickly determine if the underride device on a newly manufactured trailer meets NHTSA's requirements, and to assist State agencies responsible for enforcing motor carrier safety regulations.” [10] 

                    NHTSA also reasoned that Standard No. 223 does not specify a particular means (                    *i.e.*, labeling, etching, branding, stamping, or embossing) by which the manufacturer must achieve permanency. Finally, the agency noted that none of the petitioners had provided any information documenting any problems trailer or guard manufacturers have experienced in meeting the requirement for a permanent label.                 

### C. Label Location Requirement 

In the NPRM, the agency granted the petitioners' request to commence rulemaking to allow manufacturers to place the label where it may be least exposed to damage. The agency stated that the precise location of the guard label is of little significance to NHTSA personnel conducting compliance testing on new guards. Further, the agency stated that FMCSA representatives had indicated to NHTSA that the specific location of the guard label is not critical to trailer inspectors, so long as it is located somewhere on the horizontal member of the guard. 

However, to ensure that the label would not be hidden or obscured, the agency proposed to require that the label remain readily accessible for visual inspection, so that trailer inspectors would not have difficulty locating it. 

Finally, the agency proposed to require that the label not interfere with retroreflective sheeting placed across the full width of the rearward facing surface of the horizontal member of the underride guard, as required by S5.7.1.4.1(c) of FMVSS No. 108. 

Accordingly, the agency proposed to revise the third sentence of S5.3 of Standard No. 223 to read as follows: 

“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.” 

## IV. Final Rule 

In the NPRM, NHTSA specified a 60-day comment period. The agency did not receive any comments on the proposal. Accordingly, the agency is adopting the proposal as set forth in the NPRM. 

## V. Costs and Benefits 

This final rule will not result in any additional cost burdens on any regulated parties and will not produce additional safety benefits. 

## 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                           ( print page 67662)                        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 allows more flexibility in the location of the certification label already required by FMVSS No. 223. Accordingly, the final rule will not result in any additional costs burdens on the manufacturer of underride guards or trailers equipped with underride guards.                 

This rulemaking is not the subject of significant Congressional or public interest. 

### 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, this rulemaking allows more flexibility in the location of the certification label already required by FMVSS No. 223. Accordingly, the final rule will not result in any additional costs burdens on the manufacturer of underride guards or trailers equipped with underride guards.                 

### C. National Environmental Policy Act 

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that the implementation of this action will not have any significant impact on the quality of the human environment. 

### D. 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. 

### E. Civil Justice Reform 

This amendment 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. 

### F. 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 have any new requirements that are considered to be information collection requirements as defined by the OMB in 5 CFR part 1320. 

### G. National Technology Transfer and Advancement Act 

                    Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272), directs NHTSA to use voluntary consensus standards in its 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 NHTSA to provide Congress, through the OMB, explanations when it decides not to use available and applicable voluntary consensus standards.                 

There are no applicable voluntary consensus standards available at this time. However, NHTSA will consider any such standards if they become available. 

### 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 

The Department of Transportation assigns a regulatory identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda. 

### J. 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://www.dms.dot.gov.*

# List of Subjects in 49 CFR Part 571

      - Motor vehicle safety
      - Reporting and recordkeeping requirements
      - Tires

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

# PART 571—[AMENDED] 

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. 

2. Section 571.223 is amended by revising the third sentence of S5.3 introductory text as follows: 

§ 571.223 

* * * * *

*S5.3 Labeling.*                             * * * The label shall be placed on the forward or rearward facing surface of the horizontal member of the guard, provided that the label                                   ( print page 67663)                                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.                         

* * * * *

Issued: November 12, 2004. 

Jeffrey W. Runge, 

Administrator. 

# Footnotes

1.                                                     *See*61 FR 2003.                    
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2.                                                     *See*                         Docket No. NHTSA-1998-4367-24 at                         *http://dms.dot.gov/​search/​searchFormSimple.cfm.*
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3.                             49 CFR 567.4(g)(5) requires manufacturers to affix to trailers a label containing the statement: “This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above.”                    
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4.                                                     *See*                         Docket No. NHTSA-1998-4376-2.                    
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5.                                                     *See*                         Docket No. NHTSA-1998-3342-3.                    
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6.                                                     *See*67 FR 15154 or Docket No. NHTSA-2002-11875.                    
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7.                             Under 49 U.S.C. 30118-30120, the manufacturer of a noncompliant item of motor vehicle equipment must recall that product to bring it into compliance at no charge to the customer. In addition, this manufacturer may become subject to civil penalties. Accordingly, it is in the best interest of trailer manufacturers to affix the label that would identify the party responsible for manufacturing a noncomplying product.                    
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8.                                                     *See*64 FR 47703 (September 1, 1999).                    
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9.                             This aspect of the former FHWA jurisdiction is now under FMCSA.                    
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10.                                                     *See*63 FR 26759, (May 14, 1998).                    
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[FR Doc. 04-25704 Filed 11-18-04; 8:45 am] 

BILLING CODE 4910-59-P