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.

Proposed Rules Federal Register

58233

Vol. 65, No. 189

Thursday, September 28, 2000

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.

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:

58234 Federal Register / Vol. 65, No. 189 / Thursday, September 28, 2000 / Proposed Rules

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:

• 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;

• 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.

• Overwhelmingly, some form of

scale tolerances should be allowed.

Only one respondent suggested that

none should be permitted.

• 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-inmotion (WIM) technology, in some

manner, for data collection.

• 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.

• 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.

• 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.

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

§ 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

58236 Federal Register / Vol. 65, No. 189 / Thursday, September 28, 2000 / Proposed Rules

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 ITSbased 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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