Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 67663

1See 61 FR 2004, January 24, 1996.

2Because the horizontal discharge trailers do not 

rise to unload their contents like steel end dump 

trailers, they can be used on uneven terrain or 

where overhead obstructions such as bridges and 

power lines completely prevent the use of dump 

trailers.

3See Docket No. NHTSA–2001–8876–4.

4FMVSS No. 224 became effective January 26, 

1998; see 61 FR 2004 (January 24, 1996).

5The temporary exemptions were based or the 

‘‘substantial economic hardship’’ grounds under 49 

CFR 555.6(a). Nevertheless, the economic hardship 

was rooted in impracticability of installing 

underride guards. Both exemptions have since been 

renewed. See 68 FR 28880 (May 27, 2003).

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.

[FR Doc. 04–25704 Filed 11–18–04; 8:45 am] 

BILLING CODE 4910–59–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2004–19033] 

RIN 2127–AI56 

Federal Motor Vehicle Safety 

Standards; Rear Impact Guards; Final 

Rule

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT).

ACTION: Final rule.

SUMMARY: This document amends the 

Federal motor vehicle safety standard 

No. 224, ‘‘Rear impact protection’’

(FMVSS No. 224), to exclude road 

construction controlled horizontal 

discharge semitrailers (RCC horizontal 

discharge trailers) from the 

requirements of the standard. The RCC 

horizontal discharge trailers are used in 

the road construction industry to deliver 

asphalt to construction sites and 

gradually discharge asphalt mix into the 

paving machines overlaying the road 

surface. The agency has concluded that 

installation of the rear impact guards, as 

required by FMVSS No. 224, on RCC 

horizontal discharge trailers would 

interfere with their intended function 

and is therefore impracticable due to the 

unique design and purpose of these 

vehicles.

DATES: Effective Date: This rule is 

effective December 20, 2004. 

Petitions: Petitions for reconsideration 

must be received by January 3, 2005.

ADDRESSES: Petitions for reconsideration 

should refer to DOT Docket No. 

NHTSA–2004–19033 and be submitted 

to: Administrator, Room 5220, National 

Highway Traffic Safety Administration, 

400 7th Street, SW., Washington, DC 

20590. 

Please see the Privacy Act heading 

under Regulatory Notices.

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may call Michael 

Huntley, Office of Vehicle Safety 

Standards, (Telephone: 202–366–0029) 

(Fax: 202–493–2739) (E-Mail: 

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:

Table of Contents 

I. Background 

II. Notice of Proposed Rulemaking 

III. Summary of Comments 

IV. Agency Analysis and Decision 

A. Impracticability 

B. Alternative Methods of Compliance and 

Alternative Vehicles 

1. Special purpose vehicles and wheels 

back trailers

2. Use of dump trucks instead of RCC 

Horizontal discharge trailers 

C. Safety Consequences 

D. Statutory Mandate to Ensure 

Practicability of Safety Standards 

E. Request to Exempt Gravity Feed Dump 

Trailers 

V. Estimated Costs and Benefits 

VI. Rulemaking Analyses and Notices

I. Background 

Underride occurs when a light 

vehicle, such as a passenger car, crashes 

into the rear end of a heavy truck that 

has a chassis higher than the hood of the 

light vehicle. In certain instances, the 

light vehicle slides under or 

‘‘underrides’’ the rear end of the heavy 

vehicle such that the rear end of the 

trailer strikes and enters the passenger 

compartment of the light vehicle, 

resulting in passenger compartment 

intrusion (PCI). PCI crashes can result in 

severe injuries and fatalities to the light 

vehicle occupants due to occupant 

contact with the rear end of the heavy 

truck. 

In an attempt to reduce the frequency 

and severity of underride collisions, 

NHTSA issued FMVSS No. 224.1 The 

standard requires that all new trailers 

and semitrailers with a Gross Vehicle 

Weight Rating (GVWR) of 10,000 lbs or 

more be equipped with a rear impact 

guard (underride guard). The underride 

guard is attached to the rear of the 

trailer (within 12 inches [305 mm] of the 

rear extremity of the vehicle) and acts to 

prevent the light vehicle from sliding 

under the trailer chassis.

The RCC horizontal discharge trailer 

is a unique piece of equipment used in 

the road construction industry to deliver 

asphalt and other building materials to 

a construction site. The trailer is 

equipped with a mechanical drive and 

a horizontal conveyor, which gradually 

discharges asphalt mix into a paving 

machine overlaying the road surface 

with asphalt material. 

With respect to FMVSS No. 224, the 

RCC horizontal discharge trailer’s most 

unique and technologically problematic 

feature stems from the fact that the rear 

of the trailer is designed to connect with 

and latch onto various paving machines. 

Typically, the paving machine attaches 

to the rear axle of the RCC horizontal 

discharge trailer via hydraulic arms, and 

the edge of the trailer’s conveyor belt 

extends over the paving machine 

opening. An underride guard required 

by FMVSS No. 224 would prevent the 

RCC horizontal discharge trailer from 

effectively connecting with a paving 

machine. 

Connection with paving equipment is 

critical to the road construction process 

as it allows the RCC horizontal 

discharge trailer to deposit asphalt mix 

directly into the paving machine 

hopper. This method also allows for a 

more controlled off-loading, as 

compared to a dump trailer, which is 

the other type of vehicle capable of 

delivering asphalt mix to road 

construction sites.2

This rulemaking was initiated by a 

joint petition on behalf of Dan Hill & 

Associates, Inc. (Dan Hill), and Red 

River Manufacturing, Inc., a Division of 

Trail King Industries, Inc. (Red River).3

Dan Hill and Red River are 

manufacturers of RCC horizontal 

discharge trailers. Their petition 

requested that the agency amend 

FMVSS No. 224 to ‘‘exclude 

construction controlled horizontal 

discharge semitrailers from the scope of 

the standard.’’ Since the effective date of 

the standard,4 Dan Hill and Red River 

have each received a temporary 

exemption from the requirements of 

FMVSS No. 224, in part because of the 

impracticability of installing underride 

guards on RCC horizontal discharge 

trailers.5

FMVSS No. 224 currently excludes 

pole trailers, pulpwood trailers, wheels 

67664 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

6 ‘‘Special purpose vehicle’’ means a trailer or a 

semitrailer having work-performing equipment that, 

while the vehicle is in transit, resides in or moves 

through the area that could be occupied by the 

horizontal member of the rear underride guard. See

49 CFR 571.224. Examples of special purpose 

vehicles are dump trailers, auto transporters, and 

trailers equiped with lift gates. 7See 68 FR 54879.

8See comments from Mayo Construction Co., 

NHTSA–2003–14396–16.

back trailers, and ‘‘special purpose 

vehicles’’ because attachment of an 

underride guard to these specific 

vehicles is either impracticable or 

unnecessary.6 For example, in the case 

of a wheels back trailer, the rear axle is 

located within 12 inches of the rear 

extremity of the vehicle. Because the 

rear wheels are located so close to the 

rear extremity of the vehicle, they act as 

an underride guard, making underride 

virtually impossible.

The RCC horizontal discharge trailers 

subject to this notice do not fit the 

current definition of special purpose 

vehicles. Because of their unique design 

necessitated by their interactions with 

the paving machines, a practicable RCC 

horizontal discharge trailer is also ill 

suited for a wheels back design 

exception. In sum, the RCC horizontal 

discharge trailers do not fall under any 

exclusion currently available in FMVSS 

No. 224. At the same time, complying 

with the standard is impracticable due 

to the unique design and purpose of 

these vehicles. 

In their March 23, 2001 joint petition, 

Dan Hill and Red River requested that 

NHTSA amend FMVSS No. 224 to 

exclude construction controlled 

horizontal discharge trailers from 

FMVSS No. 224. According to the 

petitioners, the two parties together 

account for virtually all of RCC 

horizontal discharge trailer 

manufacturing. Approximately 0.12% of 

all trailers produced in the U.S. are RCC 

horizontal discharge trailers. Both 

manufacturers claim to have been 

unsuccessful in their independent 

efforts to develop an underride guard 

that is compliant, functional, and 

capable of interfacing with roadbuilding equipment with which these 

vehicles are designed to work. A 

discussion of these various attempts is 

provided below. Based on their attempts 

to manufacture a compliant trailer that 

remains functional and safe under real 

world operating conditions, petitioners 

believe that bringing RCC horizontal 

discharge trailers into compliance with 

FMVSS No. 224 is not practically 

feasible. Both manufacturers stated 

failure to amend the standard would 

effectively terminate production of RCC 

horizontal discharge trailers unless 

petitioners continued to receive 

temporary exemptions. 

II. Notice of Proposed Rulemaking 

On September 19, 2003, NHTSA 

published a Notice of Proposed 

Rulemaking to exclude RCC horizontal 

discharge trailers from the requirements 

of FMVSS No. 224.7

In the NPRM, we described the 

apparent difficulty associated with 

installing underride guards on RCC 

horizontal discharge trailers without 

interfering with their intended function. 

We stated that, based on the joint 

petitions for rulemaking and previous 

petitions for temporary exemptions, 

there did not appear to be a practicable 

solution that would bring RCC 

horizontal discharge trailers in 

compliance with FMVSS No. 224. 

Accordingly, NHTSA proposed to 

exclude RCC horizontal discharge 

trailers from the requirements of FMVSS 

No. 224 by adding RCC horizontal 

discharge trailers to the list of excluded 

vehicles in S3 of the Standard.

To ensure that the standard excluded 

only the specific type of the vehicles 

discussed in this notice, we proposed 

the following definition of RCC 

horizontal discharge trailers:

‘‘a trailer or semitrailer that is equipped with 

a mechanical drive and a conveyor to deliver 

asphalt and other road building materials, in 

a controlled horizontal manner, into a lay 

down machine or paving equipment for road 

construction and paving operations.’’

In order to better understand 

practicability issues associated with 

bringing RCC horizontal discharge 

trailers in compliance with FMVSS No. 

224, the agency asked for comment on 

the following questions: 

1. Is a wheels back design a practical 

vehicle design alternative for RCC 

horizontal discharge trailers? 

2. What is the maintenance and 

performance history of RCC horizontal 

discharge trailers with wheels back 

design? 

3. Is a retractable underride guard 

design a practical solution for RCC 

horizontal discharge trailers? Does such 

a design create a risk of injury to 

workers operating or working near the 

trailer? 

4. What is the maintenance and 

performance history of RCC horizontal 

discharge trailers with retractable 

underride guards? 

5. Has any manufacturer of RCC 

horizontal discharge trailers subject to 

this notice been able to alternatively 

design a compliant vehicle equipped 

with an underride guard, that is able to 

slide over the paving machine in order 

to discharge asphalt mix? 

III. Summary of Comments 

The agency received 24 comments in 

response to the September 19, 2003 

NPRM. Specifically, we received three 

comments from RCC horizontal 

discharge manufacturers; seventeen 

comments from road construction 

companies; two comments from 

Associated General Contractors of 

America, a comment from a RCC 

horizontal discharge trailer reseller; and 

a comment from a gravity feed dump 

trailer manufacturer. 

All comments supported the proposed 

amendment to exclude RCC horizontal 

discharge trailers from the requirements 

of FMVSS No. 224. Several commenters 

emphasized impracticability issues 

associated with installing underride 

guards on RCC horizontal discharge 

trailers. Other comments from the road 

construction companies indicated their 

preference for horizontal discharge 

trailers over dump trucks. One 

commenter urged the agency to exclude 

gravity feed dump trailers in addition to 

RCC horizontal discharge trailers. 

IV. Agency Analysis and Decision 

Based on our consideration of the 

comments and other available 

information, the agency is issuing this 

final rule to amend FMVSS No. 224 to 

exclude RCC horizontal discharge 

trailers from the requirements of the 

standard. The basis for our decision is 

discussed below. 

A. Impracticability 

Manufacturing a RCC horizontal 

discharge trailer to accommodate an 

underride guard has proven 

impracticable because the rear of the 

trailer is designed to connect with 

paving equipment. As previously 

discussed, the paving machine typically 

attaches to the rear axle of an RCC 

horizontal discharge trailer via 

hydraulic arms, and the edge of the 

trailer’s conveyor belt extends over the 

paving machine opening. This 

configuration is critical to the road 

construction process as it allows the 

RCC horizontal discharge trailer to 

deposit asphalt mix directly into the 

paving machine hopper. A fixed 

underride guard prevents paving 

machines from interfacing with (locking 

onto) the RCC horizontal discharge 

trailer during the paving operations.8

In the NPRM, we detailed petitioners’

independent efforts to develop an 

underride guard that is compliant, safe 

under real-world operating conditions, 

and capable of interfacing with roadVerDate jul<14>2003 15:29 Nov 18, 2004 Jkt 205001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\19NOR1.SGM 19NOR1
Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 67665

9See S4 of 49 CFR § 571.224.

building equipment with which these 

vehicles are designed to work. 

First, petitioners considered installing 

a retractable underride guard that would 

be engaged when the RCC horizontal 

discharge trailer travels to and from the 

actual construction sites, and retracted 

when the RCC horizontal discharge 

trailer is attached to the paving 

machine. However, designing a 

retractable underride guard suitable for 

this application has proven impractical 

for several reasons, chiefly among them 

the lack of adequate clearance. The edge 

of the RCC horizontal discharge trailer 

must extend over the paving machine in 

order to drop the hot asphalt mix into 

the hopper. Because paving machines 

differ in size and configuration, the 

trailer must allow for paving machines 

of different heights to slide under the 

conveyor structure. Typically, the 

paving machine openings are 31 to 35 

inches off the ground. Conveyor 

structures of the RCC horizontal 

discharge trailers are normally 36 to 37 

inches off the ground. As a result, the 

underride guard has to retract 

completely against the conveyor 

structure, in order to not interfere with 

the paving machine. Achieving such 

‘‘flush’’ retraction has not proven 

feasible. Additionally, raising the 

overall ground clearance of the RCC 

horizontal discharge trailer in order to 

provide adequate clearance for a 

retractable underride guard would raise 

the center of gravity of the trailer, 

possibly making the vehicle more prone 

to rollovers. 

Another difficulty in installing a 

retractable underride guard involves the 

location of a planetary gearbox that 

drives the conveyor system. The gearbox 

is located where a retractable underride 

guard system would otherwise be 

located. Further, asphalt accumulations 

on the underride guard cause certain 

maintenance problems, which have not 

yet been solved. Specifically, a 

retractable underride guard has mating 

surfaces that slide over each other. 

These surfaces would be under constant 

exposure to hot asphalt, which would 

result in mating surfaces sticking to 

each other. The hot mix asphalt 

materials that adhere to the guard 

surface may render it ineffective and 

may pose a risk of injury to the truck or 

machine operator. 

In response to the NPRM, we received 

several comments on the practicability 

of a retractable underride guard. Ace 

Asphalt Paving Co., Keeler Construction 

Co., Rose’s Enterprises and EDW. C. 

Levy Co. all stated that a retractable 

guard will result in increased cost and 

would increase the risk of an injury 

associated with employees being too 

close to the guard as it is being retracted 

or lowered. Red River reiterated that a 

retractable guard could pose a risk to 

construction workers because asphalt 

buildup would jam the retraction 

mechanism. 

Additional efforts by the petitioners to 

bring their product into compliance 

with FMVSS No. 224 have similarly 

failed. Specifically, petitioners 

considered adding removable underride 

guards. They rejected this approach 

because of concerns that workers would 

fail to replace the underride guard 

before transit.

The agency did not receive comments 

directly addressing removable underride 

guards. Nevertheless, the agency 

continues to believe that removable 

underride guards are not a practicable 

solution. Because the standard applies 

only to new vehicles, this design 

approach would allow RCC horizontal 

discharge trailer manufacturers to meet 

FMVSS No. 224. However, given the 

inconvenience associated with 

continually removing and reinstalling a 

removable guard, it is likely that at some 

point the guard would be removed 

permanently. This scenario is 

inconsistent with the overall intent of 

the standard, which is to reduce the 

likelihood of underride collisions on 

U.S. highways. 

Therefore, the agency concludes that 

installing underride guards on RCC 

horizontal discharge trailers is 

impracticable. 

B. Alternative Methods of Compliance 

and Alternative Vehicles 

1. Special Purpose Vehicles and Wheels 

Back Trailers 

As previously discussed, S.3 of 

FMVSS No. 224 contains certain 

exceptions to the requirements of the 

standard. Specifically, ‘‘wheels back’’

trailers, and ‘‘special purpose vehicles’’

need not comply with FMVSS No. 224 

because attachment of an underride 

guard to these specific vehicles is either 

impracticable or unnecessary. Neither 

exception applies to RCC horizontal 

discharge trailers. 

A special purpose vehicle is defined 

as ‘‘* * * a trailer or a semitrailer 

having work-performing equipment 

that, while the vehicle is in transit, 

resides in or moves through the area 

that could be occupied by the horizontal 

member of the rear underride guard’’ 9

Examples of special purpose vehicles 

are auto transporters, and certain trailers 

equipped with lift gates.

The RCC horizontal discharge trailers 

subject to this rulemaking do not fit the 

current definition of special purpose 

vehicles, notwithstanding their unique 

nature and their work-performing 

equipment, because technically, their 

work-performing equipment does not 

move through or reside in the area in 

which the underride guard would be 

attached. 

Wheels back trailer are equipped with 

a rear axle that is located within 305 

mm (12 inches) of the rear extremity of 

the vehicle. Because the rear wheels are 

located so close to the rear extremity of 

the vehicle, they act as an underride 

guard, making PCI virtually impossible. 

Because of the unique design 

necessitated by their interactions with 

the paving machines, a practicable RCC 

horizontal discharge trailer is ill-suited 

for a wheels back design. As previously 

mentioned, a RCC horizontal discharge 

trailer is designed to extend over a 

paving machine in order to drop the hot 

asphalt mix into the hopper. A rear axle 

located within 12 inches of the rearmost 

extremity would prevent the trailer from 

properly extending over the paving 

machine. In fact, several commenters 

confirmed that a RCC horizontal 

discharge trailer with a rear axle located 

within 12 inches of the rearmost 

extremity is unacceptable. For instance, 

Barre Stone Products, Inc. (Barre) stated 

that a 33-inch overlap between the RCC 

horizontal discharge trailer and the 

paving machine is necessary to ensure 

proper interaction between the hopper 

and the trailer, and to prevent spillage 

of asphalt material. Barre further noted 

that the wheels back design would not 

allow for proper articulation between 

the RCC horizontal discharge trailer and 

the paving machine at the point where 

they are joined. Accordingly, the agency 

concludes that wheels back design does 

not provide for a practicable solution for 

compliance with FMVSS No. 224. 

In sum, RCC horizontal discharge 

trailers do not fall under any preexisting 

exclusions to the requirements of 

FMVSS No. 224 and cannot be 

effectively altered to fit these 

exclusions. 

2. Use of Dump Trucks Instead of RCC 

Horizontal Discharge Trailers 

In evaluating available alternatives, 

NHTSA also considered the 

implications of not exempting RCC 

horizontal discharge trailers from the 

requirements of FMVSS No. 224. If RCC 

horizontal discharge trailers were no 

longer available to the road construction 

industry, the industry would have to 

rely on dump trucks to deliver asphalt 

to the construction sites. In the NPRM 

we stated that RCC horizontal discharge 

trailers appear to allow for a more 

controlled off-loading, as compared to a 

67666 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

10Neither Fatal Analysis Reporting System 

(FARS), the National Automotive Sampling System 

(NASS), nor the General Estimates System (GES) 

data files that we have examined include crash 

information pertaining specifically to horizontal 

discharge trailers. We have examined underride and 

horizontal discharge trailer information from hard 

copies of police accident reports (PARs) for 74 

selected 1999–2001 FARS cases and 75 cases from 

the 1999–2001 NASS on-line summary files. A 

careful examination of photographs (where 

available) and other related information yielded no 

indication of rear end collisions involving 

horizontal discharge trailers.

11On June 1, 2004 NHTSA granted Reliance a 

temporary exemption from FMVSS No. 224 based 

on substantial economic hardship, and in part, on 

impracticability of compliance with the standard. 

For detail on the exemption, please see 69 FR 

30989.

12See 68 FR 7406 (February 13, 2003), exempting 

Columbia Body Manufacturing Co. from FMVSS 

No. 224.

dump truck, which tends to discharge 

large quantities of asphalt mix instantly. 

A more controlled offloading not only 

prevents spillage of asphalt and other 

debris on the road surfaces, but also 

ensures a more leveled road surface 

construction. Furthermore, dump trucks 

may not be able to operate in situations 

where overhead obstructions such as 

bridges and power lines prevent raising 

the bed to unload asphalt materials. 

In response to the NPRM, the agency 

received several comments from the 

road construction industry indicating 

their preference for RCC horizontal 

discharge trailers over dump trucks. 

Specifically, Central Specialties, Inc., 

and Las Vegas Paving Corp., stated that 

RCC horizontal discharge trailers are 

preferable to dump trucks because they 

allow for a more controlled delivery of 

asphalt, thus reducing the instances of 

spills and accidents on job sites. 

Further, RCC horizontal discharge 

trailers reduce or prevent asphalt 

material segregation during delivery. 

This makes road construction material 

more durable, resulting in better roads. 

By contrast, dump trucks cannot 

prevent asphalt material segregation, 

leading to a degradation in the quality 

of asphalt during transit. Manatt’s Inc., 

and Mayo Construction, Co., noted that 

dump trucks are ineffective in 

delivering asphalt to uneven ground 

areas and present a serious safety hazard 

in areas with overhead power lines. 

Based on the industry comments 

confirming the benefits of utilizing RCC 

horizontal discharge trailers in certain 

road construction operations, the agency 

concludes that dump trucks do not 

always present a viable alternative to 

RCC horizontal discharge trailers and 

cannot effectively replace them in all 

circumstances. 

C. Safety Consequences 

The agency has examined the possible 

safety consequences of excluding RCC 

horizontal discharge trailers from 

FMVSS No. 224. We note that RCC 

horizontal discharge trailers travel on 

U.S. highways only infrequently, in 

order to deliver the hot asphalt mix to 

the road construction sites. These 

vehicles spend most of their time in a 

controlled environment of a 

construction site, surrounded by paving 

machines and construction traffic 

control equipment (e.g. traffic cones, 

safety signs), where a risk of underride 

collision is virtually nonexistent.10

Further, only a very small number of all 

trailers (approximately 0.12%) 

produced in the U.S. are RCC horizontal 

discharge trailers. Accordingly, the 

agency concludes that the risk of a 

severe underride collision with an RCC 

horizontal discharge trailer is 

substantially lower than that of other 

vehicles subject to FMVSS No. 224.

D. Statutory Mandate To Ensure 

Practicability of Safety Standards 

When prescribing a motor vehicle 

safety standard, NHTSA is required to 

ensure that the standard is reasonable, 

practicable, and appropriate for the 

particular type of motor vehicle 

equipment for which it is prescribed (49 

U.S.C. 30111(b)(3)). As discussed above, 

NHTSA has concluded that installing 

underride guards on RCC horizontal 

discharge trailers is impracticable. 

Further, comments from the road 

construction industry confirm that it is 

similarly impracticable to design an 

RCC horizontal discharge trailer that 

would fall under the existing wheels 

back exception. Therefore, the agency 

concludes that it is appropriate to 

exclude RCC horizontal discharge 

trailers from FMVSS No. 224. 

E. Request To Exempt Gravity Feed 

Dump Trailers 

In response to the NPRM, we received 

a comment from Reliance Trailer Co. 

(Reliance), requesting that NHTSA 

amend the definition of an RCC 

horizontal discharge trailers to include 

gravity feed dump trailers. Reliance is a 

trailer manufacturer specializing in 

gravity feed dump trailers for the use in 

road construction industry.11 After 

carefully considering Reliance’s request, 

NHTSA declines to exclude gravity feed 

dump trailers from the requirements of 

the standard.

A RCC horizontal discharge trailer is 

a single-purpose vehicle designed to 

deliver and discharge asphalt materials 

into paving equipment in a controlled 

manner. Unlike the RCC horizontal 

discharge trailers, gravity feed dump 

trailers are versatile vehicles used for a 

multitude of tasks. Often, gravity feed 

dump trailers are used in a way that 

does not require controlled offloading or 

interaction with other equipment such 

as paving machines. Further, many 

gravity feed dump trailers fall under 

wheels back exception. Others can 

easily accommodate an underride guard. 

Because it is not impracticable for all

gravity feed dump trailers to comply 

with FMVSS No. 224, the agency prefers 

to review the necessity of exempting 

gravity feed dump body trailers within 

the context of temporary exemptions 

pursuant to 49 CFR Part 555. In certain 

limited circumstances, the agency grants 

temporary exemptions to gravity feed 

dump trailer manufacturers based, in 

part, on impracticability of compliance. 

In fact, several gravity feed dump trailer 

manufacturers, including Reliance, have 

previously received exemptions from 

FMVSS No. 224.12

The agency notes that gravity feed 

dump trailers are more common and 

represent a larger vehicle population 

compared to RCC horizontal discharge 

trailers. Accordingly, we are concerned 

that exempting a larger vehicle 

population from the requirements of the 

standard may lead to negative safety 

consequences exceeding those 

associated with exempting only the RCC 

horizontal discharge trailers. Because of 

a larger vehicle population and because 

of their versatility of use, the agency 

cannot conclude that a risk of an 

underride collision with a gravity feed 

dump trailer is negligible. Finally, we 

note that Reliance’s request is outside 

the scope of the NPRM, and this 

rulemaking action cannot exempt other 

types of vehicles from the requirements 

of FMVSS No. 224 without further 

notice. 

V. Estimated Costs and Benefits 

This final rule will not result in any 

additional cost burdens on any 

regulated parties. Exclusion of RCC 

horizontal discharge trailers from the 

requirements of FMVSS No. 224 will 

benefit RCC horizontal discharge trailer 

manufacturers and members of the road 

construction industry utilizing these 

vehicles because RCC horizontal 

discharge trailer manufacturers would 

not have to expend further financial 

resources in attempting to bring RCC 

horizontal discharge trailers into 

compliance with FMVSS No. 224. 

The cost benefits associated with this 

final rule will result from the 

petitioners’ and other third parties’

ability to continue manufacturing and 

marketing their products. Currently, 

petitioners’ ability to offer RCC 

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 67667

horizontal discharge trailers depends on 

temporary exemptions. Further, E.D. 

Etnyre & Co. and other manufacturers 

who may have suffered sale volume 

losses as a result of offering a wheels 

back or other designs unpopular with 

typical RCC horizontal discharge trailer 

purchasers, may once again gain market 

share by offering a product that is more 

suitable to the industry needs. The 

actual costs savings to RCC horizontal 

discharge trailer manufacturers are 

difficult to estimate because petitioners 

have not been able to produce a viable 

underride guard for the equipment in 

question. 

We also anticipate certain cost savings 

by members of the road construction 

industry based on their comments 

stating their preference of RCC 

horizontal discharge trailers to dump 

trailers. Road construction industry 

costs savings are not quantified because 

road construction companies did not 

submit data sufficient to enable NHTSA 

to create an actual cost estimate.

There are no safety benefits associated 

with this proposed rulemaking. As 

discussed in Section IV, however, we 

anticipate that because of very limited 

production, and similarly limited 

highway use exposure, there are 

minimal safety disbenefits associated 

with this final rule. 

VI. Rulemaking Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

NHTSA has considered the impact of 

this rulemaking action under E.O. 12866 

and the Department of Transportation’s 

regulatory policies and procedures. This 

final rule was not reviewed under E.O. 

12866, ‘‘Regulatory Planning and 

Review.’’ This action has been 

determined to be ‘‘nonsignificant’’

under the Department of 

Transportation’s regulatory policies and 

procedures. The agency concludes that 

the expected impact of the final rule is 

so minimal that the final rule does not 

warrant preparation of a full regulatory 

evaluation. This rulemaking will not 

impose any new requirements or costs 

on manufacturers. Instead, this 

rulemaking exempts RCC horizontal 

discharge trailer manufacturers from the 

requirements of FMVSS No. 224. 

Accordingly, the final rule will result in 

cost savings to manufacturers of RCC 

horizontal discharge trailers, and road 

construction companies purchasing 

these vehicles. 

B. Regulatory Flexibility Act 

NHTSA has considered the impacts of 

this rulemaking action under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). I hereby certify that the final 

rule will not have a significant 

economic impact on a substantial 

number of small entities. This 

rulemaking does not impose any new 

requirements or costs on manufacturers. 

Instead, the final rule excludes 

manufacturers of RCC horizontal 

discharge trailers from the requirements 

of FMVSS No. 224. The manufacturers 

of RCC horizontal discharge trailers, 

among them Dan Hill, Red River, and 

E.D. Etnyre & Co. will realize certain 

cost savings because the standard will 

no longer require them to install 

underride guards on their RCC 

horizontal discharge trailers. However, 

because of the relatively small number 

of RCC horizontal discharge trailers 

produced yearly, any potential positive 

economic impact will not be significant. 

Accordingly, this amendment will not 

significantly affect small businesses, 

small organizations, or small 

governmental units. For these reasons, 

the agency has not prepared a final 

regulatory flexibility analysis. 

C. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, a person is not required to 

respond to a collection of information 

by a Federal agency unless the 

collection displays a valid OMB control 

number. This final rule does not contain 

any collection of information 

requirements subject review under the 

Paperwork Reduction Act. 

D. National Environmental Policy Act 

NHTSA has analyzed this final rule 

under the National Environmental 

Policy Act and determined that it would 

not have a significant impact on the 

quality of human environment. 

E. Executive Order 13132 (Federalism) 

NHTSA has analyzed this final rule in 

accordance with the principles and 

criteria contained in the Executive 

Order 13132, and has determined that 

this rulemaking does not have sufficient 

Federal implications to warrant 

consultation with State and local 

officials or the preparation of a 

Federalism summary impact statement. 

This final rule does not have any 

substantial impact on the States, or on 

the current Federal-State relationship, 

or on the current distribution of power 

and responsibilities among the various 

local officials. The final rule is not 

intended to preempt state tort civil 

actions. 

F. Civil Justice Reform 

This final rule will not have any 

retroactive effect. Under 49 U.S.C. 

21403, whenever a Federal motor 

vehicle safety standard is in effect, a 

State may not adopt or maintain a safety 

standard applicable to the same aspect 

of performance which is not identical to 

the Federal standard, except to the 

extent that the state requirement 

imposes a higher level of performance 

and applies only to vehicles procured 

for the State’s use. 49 U.S.C. 21461 sets 

forth a procedure for judicial review of 

final rules establishing, amending or 

revoking Federal motor vehicle safety 

standards. That section does not require 

submission of a petition for 

reconsideration or other administrative 

proceedings before parties may file suit 

in court. 

G. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104–

113, section 12(d) (15 U.S.C. 272) 

directs us to use voluntary consensus 

standards in regulatory activities unless 

doing so would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by voluntary 

consensus standards bodies, such as the 

Society of Automotive Engineers (SAE). 

The NTTAA directs us to provide 

Congress, through OMB, explanations 

when we decide not to use available and 

applicable voluntary consensus 

standards. 

The agency searched for, but did not 

find any voluntary consensus standards 

relevant to this final rule. 

H. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 requires agencies to prepare a 

written assessment of the costs, benefits 

and other effects of proposed or final 

rules that include a Federal mandate 

likely to result in the expenditure by 

State, local or tribal governments, in the 

aggregate, or by the private sector, of 

more than $100 million annually 

($120,700,000 as adjusted for inflation 

with base year of 1995). 

This final rule will not result in 

expenditures by State, local or tribal 

governments, in the aggregate, or by the 

private sector in excess of $120,700,000 

annually. 

I. Regulation Identifier Number (RIN) 

The Department of Transportation 

assigns a regulation identifier number 

(RIN) to each regulatory action listed in 

the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

67668 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

Agenda in April and October of each 

year. You may use the RIN contained in 

the heading at the beginning of this 

document to find this action in the 

Unified Agenda. 

J. Executive Order 13045 

Executive Order 13045 (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under E.O. 

12866, and (2) concerns an 

environmental, health, or safety risk that 

NHTSA has reason to believe may have 

a disproportionate effect on children. If 

the regulatory action meets both criteria, 

we must evaluate the environmental 

health or safety effects of the planned 

rule on children, and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by us. 

This final rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

E.O. 12866 and does not involve 

decisions based on environmental, 

health, or safety risks that 

disproportionately affect children. 

K. Privacy Act 

Anyone is able to search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit http://dms.dot.gov.

L. Executive Order 12988 (Civil Justice 

Reform) 

This final rule will not have any 

retroactive effect. Under 49 U.S.C. 

30103, whenever a Federal motor 

vehicle safety standard is in effect, a 

State may not adopt or maintain a safety 

standard applicable to the same aspect 

of performance which is not identical to 

the Federal standard, except to the 

extent that the state requirement 

imposes a higher level of performance 

and applies only to vehicles procured 

for the State’s use. 49 U.S.C. 30161 sets 

forth a procedure for judicial review of 

final rules establishing, amending or 

revoking Federal motor vehicle safety 

standards. That section does not require 

submission of a petition for 

reconsideration or other administrative 

proceedings before parties may file suit 

in court.

List of Subjects in 49 CFR Part 571 

Motor vehicle safety standards.

PART 571—FEDERAL MOTOR 

VEHICLE SAFETY STANDARDS

■ In consideration of the foregoing, 

NHTSA amends 49 CFR part 571.224 as 

set forth below.

■ 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 571.224 is amended by 

revising S3 and by adding the definition 

of ‘‘Road construction controlled 

horizontal discharge trailer’’ in 

alphabetical order to S4 to read as 

follows:

§ 571.224 Standard No. 224; Rear Impact 

Protection.

* * * * *

S3. Application. This standard 

applies to trailers and semitrailers with 

a GVWR of 4,356 kg or more. The 

standard does not apply to pole trailers, 

pulpwood trailers, road construction 

controlled horizontal discharge trailers, 

special purpose vehicles, wheels back 

vehicles, or temporary living quarters as 

defined in 49 CFR 529.2. If a cargo tank 

motor vehicle, as defined in 49 CFR 

171.8, is certified to carry hazardous 

materials and has a rear bumper or rear 

end protection device conforming with 

49 CFR part 178 located in the area of 

the horizontal member of the rear 

underride guard required by this 

standard, the guard need not comply 

with the energy absorption requirement 

(S5.2.2) of 49 CFR 571.223. 

S4. Definitions.

* * * Road construction controlled 

horizontal discharge trailer means a 

trailer or semitrailer that is equipped 

with a mechanical drive and a conveyor 

to deliver asphalt and other road 

building materials, in a controlled 

horizontal manner, into a lay down 

machine or paving equipment for road 

construction and paving operations.

* * * * *

Issued: November 12, 2004. 

Jeffrey W. Runge, 

Administrator.

[FR Doc. 04–25703 Filed 11–18–04; 8:45 am] 

BILLING CODE 4910–59–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 679

[Docket No. 031125292–4061–02; I.D. 

111504A]

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Vessels Catching Pacific Cod for 

Processing by the Inshore Component 

in the Central Regulatory Area of the 

Gulf of Alaska

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Closure.

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by vessels 

catching Pacific cod for processing by 

the inshore component in the Central 

Regulatory Area of the Gulf of Alaska 

(GOA). This action is necessary to 

prevent exceeding the 2004 total 

allowable catch (TAC) of Pacific cod 

apportioned to vessels catching Pacific 

cod for processing by the inshore 

component of the Central Regulatory 

Area of the GOA.

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), November 17, 2004, until 

2400 hrs, A.l.t., December 31, 2004.

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228.

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679.

The 2004 TAC of Pacific cod 

apportioned to vessels catching Pacific 

cod for processing by the inshore 

component of the Central Regulatory 

Area of the GOA is 24,404 metric tons 

(mt) as established by the 2004 harvest 

specifications for groundfish of the GOA 

(69 FR 9261, February 27, 2004). NMFS 

closed the directed fishery for Pacific 

cod for processing by the inshore 

component of the Central Regulatory 

Area of the GOA under 

§ 679.20(d)(1)(iii) on September 10, 

2004 (69 FR 55361, September 14, 

2004), and reopened it on September 28, 

2004 (69 FR 58367, September 30, 

2004).