[Federal Register Volume 65, Number 189 (Thursday, September 28, 2000)]
[Proposed Rules]
[Pages 58233-58236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24906]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 65, No. 189 / Thursday, September 28, 2000 / 
Proposed Rules

[[Page 58233]]



DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 657

[FHWA Docket No. FHWA-97-2219; 93-28]
RIN 2125 -AC60


Certification of Size And Weight Enforcement

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Supplemental advance notice of proposed rulemaking (SANPRM); 
request for comments.

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SUMMARY: The FHWA is considering changes in Federal regulations 
affecting State certification of commercial motor vehicle size and 
weight enforcement. Public comment is requested on the type of 
information and data that States should be required to submit to the 
FHWA in support of their annual certification of size and weight 
enforcement. This can include, but is not limited to: Specific relevant 
data elements; program approaches that may affect detection and 
assessment of vehicle weight violations; and the technologies and 
logistics of data collection. Previous efforts in this area were 
suspended by the FHWA as a result of the agency's decision to conduct a 
comprehensive study of all aspects of the truck size and weight issue 
and the need to devote significant resources to that effort. With the 
study nearing completion, the agency is resuming work on revising the 
certification process.

DATES: Comments must be received on or before December 27, 2000.

ADDRESSES: Your signed, written comments must refer to the docket 
number appearing at the top of this document and you must submit the 
comments to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 
Seventh Street, SW., Washington, DC 20590-0001. All comments received 
will be available for examination at the above address between 9 a.m. 
and 5 p.m., e.t., Monday through Friday, except Federal holidays. Those 
desiring notification of receipt of comments must include a self-
addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Davis, Office of Freight 
Management and Operations (202-366-2997), or Mr. Charles Medalen, 
Office of the Chief Counsel (202-366-1354), Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590. Office 
hours are from 7:30 a.m. to 4 p.m., e.t., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL): 
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
help.
    An electronic copy of this document may be downloaded, using a 
modem and suitable communications software, from the Government 
Printing Office's Electronic Bulletin Board Service at (202) 512-1661. 
Internet users may reach the Office of the Federal Register's home page 
at: http://www.nara.gov/fedreg and the Government Printing Office's web 
page at: http://www.access.gpo.gov/nara.

Background

    To preserve the Nation's investment in the Interstate Highway 
System, in 1956 the Congress established vehicle weight limits for the 
Interstate System (23 U.S.C. 127). Beginning in 1975, the Congress 
required each State to certify annually that it is enforcing its size 
and weight laws (23 U.S.C. 141) as a condition for full receipt of 
Federal-aid highway funds. The regulation to implement section 141 is 
found at 23 CFR part 657, Certification of Size and Weight Enforcement. 
Except for technical corrections necessitated by statutory changes, the 
basic content of part 657 has remained unchanged since publication in 
August 1980.
    Since that time, the motor carrier industry has undergone 
substantial change. Concurrently, a need for change in State 
enforcement efforts also has been identified. Both the General 
Accounting Office (GAO) and the Department's Office of Inspector 
General (OIG) have conducted reviews of State operations under the 
existing rules and found problems, not only with specific practices in 
individual States, but also with the requirements themselves. In 
response to the GAO and OIG reports, the Federal Highway Administration 
in December 1993 published an advance notice of proposed rulemaking 
(ANPRM) under Docket No. 93-28 with a request for comments (58 FR 
65830, December 16, 1993), and an extension of comment period (59 FR 
11956, March 15, 1994) as the first step in revising and updating the 
requirements of part 657. (The FHWA rearranged its docket system to 
accord with the electronic system adopted by the Department of 
Transportation in 1997. The FHWA Docket No. 93-28 was transferred and 
scanned as FHWA Docket No. 1997-2219.)
    As the FHWA completed its initial review of the comments received 
in response to the ANPRM, then Federal Highway Administrator Rodney 
Slater in June 1994 committed the FHWA to a comprehensive review of all 
aspects of the truck size and weight issue. Since the agency was then 
committed to a comprehensive review of the program, it decided to table 
the rulemaking until the comprehensive study could evaluate existing 
issues, including size and weight certification. Although the size and 
weight study did ask questions about State certification programs, only 
a few comments were received on the topic. After consideration, the 
FHWA determined that the responses to the comprehensive study that 
addressed vehicle weight enforcement were too few in number and 
specificity to form a basis for reconsidering current State 
certification requirements. With the comprehensive study nearing 
completion, therefore, the FHWA is resuming its work to revisit the 
certification process and determine if a rulemaking effort on this 
topic should be continued.
    The 1993 ANPRM contained a discussion of nine problem areas that 
had been noted by the GAO, the OIG, or the States as having a negative 
effect on certification and enforcement procedures and their 
effectiveness at measuring and reporting commercial motor vehicle (CMV) 
compliance. These were:

[[Page 58234]]

    1. The magnitude and location of overweight vehicles are unknown;
    2. Operational tolerances at scales are common despite Federal law;
    3. Preparation of enforcement plans and certifications is time 
consuming;
    4. Not all States are taking advantage of improved data collection 
to enhance program management and effectiveness;
    5. The amount of pavement wear attributable to vehicles with 
special permits is unknown;
    6. Permit fee and overweight fine schedules often do not reflect 
true costs;
    7. Enforcement plans lack specific, measurable goals;
    8. There is inadequate vehicle size and weight enforcement in some 
urban areas; and
    9. Sanction procedures do not clearly identify some settlement 
options.
    Under each problem area, several questions were posed to help 
respondents focus their comments.
    Fifty-three interested parties submitted written comments to the 
ANPRM: 33 State departments of transportation, departments of public 
safety, and/or State highway patrols; 9 transportation related 
associations; 3 commercial motor carriers; 1 safety advocacy group; 1 
university engineering department; 1 Federal agency (the U.S. 
Department of Commerce's Technology Administration); and 4 others from 
private citizens. In response to the questions posed in the 1993 ANPRM, 
respondents stated, in summary, that:
    <bullet> As a group, they believed no separate data base was needed 
to help them monitor heavy vehicle movements, and that the cost of 
developing a separate data base would outweigh any savings in pavement 
and bridge costs;
    <bullet> Overall, the format and contents of the State's 
enforcement plan should be left largely as they are. Some States stated 
that they would expand the data reported as new technology is developed 
to help them collect and provide these data. Four States suggested that 
the FHWA should outline a core group of enforcement activities and 
allow the States to respond to them.
    <bullet> Overwhelmingly, some form of scale tolerances should be 
allowed. Only one respondent suggested that none should be permitted.
    <bullet> States were taking advantage of advanced technologies, 
largely the result of the Intelligent Transportation Systems' 
Commercial Vehicle Operations initiative, to collect and convey size 
and weight data. Fifteen States indicated reliance on weigh-in-motion 
(WIM) technology, in some manner, for data collection.
    <bullet> A minority of States responding were attempting to track 
infrastructure costs resulting from vehicles operating under special 
permits. However, none of them had the capability to track movements 
undertaken with multiple trip permits.
    <bullet> Fee structures and fines charged by States ranged from 
full consideration of infrastructure costs to a nominal fee with no 
attempt to reflect effects on the highway system. Respondents noted 
that imposition of fees and fines ultimately should remain a State 
decision.
    <bullet> A separate evaluation of urban enforcement activities was 
not needed. Cooperative agreements existed with large cities or 
enforcement programs were in place around urban areas that took care of 
the concern. Regular communication with, and training of, local 
officials on commercial vehicle weight enforcement was on-going.
    The objective of this supplemental ANPRM is to update information 
like that summarized above, and provide all interested parties the 
opportunity to present new ideas, concepts, and information that they 
believe the FHWA should consider in revising the certification process. 
This will afford States an opportunity to cost-effectively achieve 
better compliance with size and weight laws, obtain data that they and 
the FHWA may apply to assessing weight compliance, identify existing 
technologies to facilitate certification and describe new technologies 
that may ultimately apply. The input received in response to this 
request will be considered, along with comments provided in response to 
the 1993 ANPRM, as the FHWA decides whether to continue the rulemaking 
to the NPRM stage.
    The FHWA asks that respondents consider the following areas of 
concern, as well as any others which they believe are relevant to a 
discussion of improving the language, requirements, and effectiveness 
of 23 CFR part 657 for State agencies. As in 1993, the agency requests 
that respondents structure their comments to respond to the issues 
listed below, where appropriate, taking into consideration the 
following under each:
    1. Data Identification of Problem Areas. Is a data collection 
system needed to track truck weight patterns throughout a State? States 
in general did not believe that a new system was needed to collect data 
on overweight commercial truck travel patterns in their jurisdictions, 
although they did not describe how the process was currently handled. 
Left unanswered was: should such a system be required? Moreover, is one 
feasible? Does one already exist for other purposes that might be 
adapted to help satisfy certification requirements? Would one improve 
the operation of the State's weight enforcement program?
    2. Aspects of Highway Safety involving Commercial Vehicles. The 
increasing volume of all traffic, including that of commercial 
vehicles, continues to increase the exposure that any single vehicle 
has to potential crash involvement. The importance of truck safety has 
always been known to the traffic safety enforcement community, but the 
issue has now become an increasingly ``high-profile'' item to the 
public at large, with the public demanding increased accountability. 
Accordingly, highway and truck safety must be considered in every 
aspect of highway system operation, including commercial vehicle weight 
enforcement. The primary reason for the development of vehicle weight 
laws was infrastructure protection. Enforcement of these laws was, and 
continues to be, seen as the primary method to obtain full value from 
the resources committed to building and maintaining the highway system. 
However, the operational safety performance of commercial vehicles is 
compromised when those vehicles either exceed legal weight limits, or 
are loaded beyond the design capacity of the vehicle. The FHWA 
recognizes that at the Federal level, truck safety issues per se are 
the direct responsibility of the newly created Federal Motor Carrier 
Safety Administration, and that it is not the intention to duplicate in 
any way requirements or responsibilities. The question here is whether 
the value added to improving commercial vehicle safety by weight 
enforcement should be formally acknowledged, and if so, in what manner.
    3. Weight Tolerances at Scales or Enforcement Judgment. According 
to 23 U.S.C. 127, States may not allow any weight tolerances on the 
Interstate System. Thus, by law, States are required to issue a 
citation, or take some enforcement action, if a scale reading on the 
Interstate is even one pound over the limit. Off the Interstate, States 
may provide for ``enforcement tolerances.'' The problem is that State 
law or regulation has to prescribe a tolerance in order for it to be 
allowed. Often, there is no codification of the practice; yet, it takes 
place. Under 23 U.S.C. 141, this can be considered inadequate 
enforcement of State size and weight laws.
    Despite the requirement for tolerance codification, scale 
tolerances are apparently widely used, and respondents to the 1993 
ANPRM overwhelmingly supported their usage.

[[Page 58235]]

Frequently, the tolerances described were defined as something other 
than tolerances per se, usually ``officer discretion.''
    In sum, should the practice of allowing scale operational 
tolerances be recognized in Federal law to permit State usage on some 
systematic basis? What kind (percentage or poundage) and amount of 
scale tolerance should be allowed? Or, should scale tolerances be 
considered a matter for enforcement officials' judgment at the weighing 
site, drawing upon State regulation and enforcement practice?
    4. Documenting Pavement Use and Bridge Wear Attributable to 
Vehicles with Special Permits. What do we now know about pavement use 
and bridge wear associated with vehicles with special permits, 
especially permits allowing multiple trips? What can we reasonably 
know? What systems now help document usage? What is being done with the 
information obtained? What improvements are needed to provide State 
officials with timely, representative knowledge about pavement use and 
bridge wear due to permitted vehicle operations? Any information 
systems that would be considered for implementation to respond to these 
questions would at least cover the Interstate System, as current 
Federal statute (23 U.S.C. 127) applies only to the Interstate System. 
Could such a system be reasonably expanded to distinguish permitted 
travel on non-Interstate highway systems such as the non-Interstate 
portions of the National Highway System (NHS), or National Network (NN) 
(for trucks described in the Surface Transportation Assistance Act of 
1982 (STAA), Public Law 97-424, 96 Stat. 2097). Do you believe that 
such an expansion would be warranted from a safety standpoint?
    5. Permit Fees and Overweight Fines. What is the basis for current 
systems of fees and fines? Are they designed to cover highway costs 
(including enforcement), simply provide a token fee, or serve as a 
deterrent? Do States have any systems to more completely capture, or 
more equitably assess, State highway costs? What are your views on the 
potential for a system that would monitor vehicle operations for use in 
applying the State permit fee and fine structures? If such a system is 
considered, what would be the minimum data elements that should be 
included? For each incremental increase in vehicle specificity, what 
are additional costs and issues that you see affecting implementation?
    6. Vehicle Size and Weight Enforcement in Urban Areas. The wording 
of 23 U.S.C. 141 requires vehicle size and weight enforcement on the 
Federal-aid primary, urban, and secondary systems, including the 
Interstate System. The system references in this section were not 
amended by Congress when these systems (except for the Interstate) were 
eliminated and replaced by the National Highway System (NHS) in the 
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), 
Public Law 102-240, 105 Stat. 1914. When the language of section 141 
was enacted (Federal-Aid Highway Amendments of 1974, Public Law 93-643, 
88 Stat. 2284), the mileage comprising the urban system, the urban 
extensions of the primary and secondary systems, and the urban 
Interstate, accounted for a significant proportion of the total street 
mileage in many cities. Today, the only designated Federal-aid system, 
the NHS, includes a much smaller proportion of the total mileage in 
every city. From a system mileage standpoint, Federal interest has 
decreased significantly, even though the total mileage on which some 
form of Federal-aid funds may be spent by States has remained constant.
    The current regulation simply requires that States must identify 
any urbanized areas not subject to State enforcement and, for those 
areas, must include an analysis of enforcement efforts. Many States 
include with their certifications information on urban weight 
enforcement discussions of activity that are conducted by city/
municipal police, even though many of these activities probably occur 
on local streets that have never been a part of any Federal-aid system.
    Is it appropriate to reconsider and or clarify Federal interest in 
the extent of urban weight enforcement?
    7. Sanction Procedures. Section 657.21 establishes Federal 
penalties for State imposition of non-conforming weight limits on the 
Interstate system, as well as failure to submit a certification or 
enforce its size and weight laws. However, unanswered by current 
statute is how the FHWA will determine if inadequate enforcement is 
occurring, and how a State may respond to Federal determinations of 
violation.
    Therefore, what are some workable, practical performance measures 
or index values that might more objectively define the enforcement 
efforts of a State that would reflect the varying State enforcement 
philosophies, procedures, and statutory bases? Such a measure or 
measures could include items such as effort expended, applicable 
mileage, number and type of scales used, as well as the existing 
measures of activity (e.g., weighings and penalties). What processes or 
procedures would best serve the State in responding to, and working 
with the FHWA to resolve, a Federal determination of non-compliance or 
non-enforcement? What might be the simplest, most straightforward 
system of resolution?

    Note: Respondents may wish to refer to Sec. 657.15 for currently 
invoked measures of performance as an aid in considering and 
developing their own recommendations.

    8. Enforcement of LCV Regulations. The ISTEA added a statement to 
the annual certification of vehicle size and weight enforcement 
specifically covering compliance with the freeze on the operation of 
longer combination vehicles (LCVs). Previously, this activity was 
covered by the general statement in 23 U.S.C. 141 that ``it is 
enforcing all State laws respecting maximum vehicle size and weights.'' 
In considering possible changes to the measures of size and weight 
enforcement activity to be included with a certification, can LCV 
enforcement be singled out and reported with its own measure? What are 
practical measures the States can propose to quantify this activity?

    Note: the ISTEA added State compliance with the freeze on the 
operation of longer combination vehicles (LCVs) to the certification 
process of 23 U.S.C. 141.

    9. Use of Variable Load Suspension (VLS) Axles. Anecdotal evidence 
suggests that vehicles equipped with VLS axles may be causing road 
damage because the axles are not always used as designed to compensate 
for heavier loads. Should VLS axles be specifically mentioned in 
Federal regulations to either exclude them from, or conditionally 
include their use in, the determination of a commercial motor vehicle's 
compliance with the various weight limits, including the bridge 
formula? If included, what qualifications would have to be met to 
permit these axles' inclusion?

    Note: Bigger payload has been one of the reasons for the large 
increase in VLS axle usage. Another is load equalization. However, 
the axle can often be raised or lowered from inside the cab, so that 
the opportunity exists for the axle not to be engaged when the 
loaded vehicle is underway. The potential for abuse exists, 
therefore, as a disengaged VLS axle could lead to heavy permanent 
axle loadings and significant damage to both the roadway and 
vehicle. Documentation on individual State treatment of VLS axles 
when calculating vehicle axle weight is fragmented.

    10. Size and Weight Enforcement Practices and Procedures. Concerns 
have been voiced about the lack of uniformity in States' roadside size 
and weight enforcement practices, including measurement of length, use 
of portable

[[Page 58236]]

scales, and citing multiple violations on the same vehicle. Should 
there be some minimum level of Federal standards established for the 
various tasks that make up State size and weight enforcement? Do such 
standards already exist that might be incorporated in a State's 
enforcement process? Should employee training in various aspects of 
size and weight enforcement be a component of State enforcement plans?
    11. Role of Technology. What are your views on the role that 
Intelligent Transportation Systems (ITS) technology can have in 
monitoring and/or implementing the various aspects of commercial 
vehicle size and weight discussed herein. In terms of the existing 
highway systems, what would be the minimum data and coverage 
requirements necessary to make an ITS-based information system 
effective from a public agency standpoint, and useable for motor 
carriers and drivers?

Rulemaking Analyses and Notices

    All comments received before the close of business on the final day 
of the comment period indicated above will be considered and will be 
available for examination in the docket at the above address or by 
electronic means. Comments received after the closing date will be 
filed in the docket and will be considered to the extent practicable. 
In addition to late comments, the FHWA will also continue to file 
relevant information in the docket that becomes available after the 
closing date, and interested persons should continue to examine the 
docket for new material.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of U.S. Department of Transportation 
regulatory policies and procedures. Due to the preliminary nature of 
this document and lack of necessary information on costs, the FHWA is 
unable to evaluate the economic impact of potential changes to the 
regulatory requirements concerning the certification of size and weight 
enforcement. Based on the information received in response to this 
notice, the FHWA intends to carefully consider the costs and benefits 
associated with various alternative requirements. Comments, information 
and data are solicited on the economic impact of the potential changes.

Regulatory Flexibility Act

    Due to the preliminary nature of this document and lack of 
necessary information on costs, the FHWA is unable to evaluate the 
effects of the potential regulatory changes on small entities. Based on 
the information received in response to this notice, the FHWA intends, 
in compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), 
to carefully consider the economic impacts of these potential changes 
on small entities. The FHWA solicits comments, information and data on 
these impacts.

Unfunded Mandates Reform Act of 1995

    The FHWA does not anticipate that any rule resulting from this 
preliminary action would impose a Federal mandate involving the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year. (2 
U.S.C. 1531 et seq.)

Executive Order 12988 (Civil Justice Reform)

    The FHWA will evaluate any action that may be proposed in response 
to comments received here to ensure that such action 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.

Executive Order 13045 (Protection of Children)

    The FHWA will evaluate any rule that may be proposed in response to 
comments received here under Executive Order 13045, Protection of 
Children from Environmental Health Risks and Safety Risks. We do not 
anticipate that any such rule would be economically significant or 
would present an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    The FHWA will evaluate any rule that may be proposed in response to 
comments received here to ensure that any such rule will not effect a 
taking of private property or otherwise have taking implications under 
Executive Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights.

Executive Order 13132 (Federalism)

    Any action that may be initiated in response to comments received 
here will be analyzed in accordance with the principles and criteria 
contained in Executive Order 13132 dated August 4, 1999. The FHWA 
anticipates that such action would not have a substantial direct effect 
or sufficient Federalism implications on States that would limit the 
policymaking discretion of the States. Nor do we anticipate that such 
action would directly preempt any State law or regulation.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Paperwork Reduction

    The FHWA does not anticipate that any action initiated in response 
to comments received here will add or expand a collection of 
information requirement for purposes of the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501 et seq.

National Environmental Policy Act

    The FHWA will analyze any actions that may be initiated in response 
to comments received here for the purpose of the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.) in order to assess whether such 
action would have any effect on the quality of the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned 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. The RIN contained in the heading of 
this document can be used to cross reference this section with the 
Unified Agenda.

List of Subjects in 23 CFR Part 657

    Enforcement plan, Highway and roads, Sanctions, and Vehicle size 
and weight certification.

    Authority: 23 U.S.C. 127, 141, and 315; 49 CFR 1.48(b).

    Dated: September 15, 2000.
Anthony R. Kane,
Federal Highway Executive Director.
[FR Doc. 00-24906 Filed 9-27-00; 8:45 am]
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