[Federal Register Volume 63, Number 118 (Friday, June 19, 1998)]
[Proposed Rules]
[Pages 33611-33628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15622]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 393

[FHWA Docket No. MC-94-1; FHWA-1997-2222]
RIN 2125-AD27


Parts and Accessories Necessary for Safe Operation; Lighting 
Devices, Reflectors, and Electrical Equipment

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA is proposing to amend the Federal Motor Carrier 
Safety Regulations (FMCSRs) to require that motor carriers engaged in 
interstate commerce install retroreflective tape or reflex reflectors 
on the sides and rear of trailers that were manufactured prior to

[[Page 33612]]

December 1, 1993, have an overall width of 2,032 mm (80 inches) or 
more, and a gross vehicle weight rating (GVWR) of 4,536 kg (10,001 
pounds) or more. The FHWA is proposing that motor carriers be required 
to install retroreflective tape or reflex reflectors within two years 
of the effective date of the final rule. Motor carriers would be 
allowed a certain amount of flexibility in terms of the colors or color 
combinations during a 10-year period beginning on the effective date of 
the final rule, but would be required to have all older trailers 
equipped with conspicuity treatments identical to those mandated for 
new trailers at the end of the 10-year period. The locations at which 
the retroreflective material would have to be applied to trailers 
during the phase-in period would be specified. This rulemaking is 
intended to help motorists detect trailers at night and under other 
conditions of reduced visibility, thereby reducing the incidence of 
passenger vehicles colliding with the sides or rear of trailers.

DATES: Comments must be received on or before September 17, 1998.

ADDRESSES: Submit written, signed comments to the docket identified at 
the beginning of this notice, 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 from 10 a.m. to 5 p.m., et., 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. Larry W. Minor, Office of Motor 
Carrier Research and Standards, HCS-10, (202) 366-4009; or Mr. Charles 
E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354, 
Federal Highway Administration, 400 Seventh Street, SW., Washington, 
D.C. 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users can 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 Federal Register 
Electronic Bulletin Board Service at (202) 512-1661. Internet users may 
reach the Federal Register's home page at <a href="http://www.nara.gov/nara/
fedreg">http://www.nara.gov/nara/
fedreg</a> and the Government Printing Office's database at: <a href="http://
www.access.gpo.gov/su__docs">http://
www.access.gpo.gov/su__docs</a>.

Background

    On December 10, 1992, the National Highway Traffic Safety 
Administration (NHTSA) amended Federal Motor Vehicle Safety Standard 
(FMVSS) No. 108 (49 CFR 571.108), to require that trailers with an 
overall width of 2,032 mm (80 inches) or more and a GVWR greater than 
4,536 kg (10,000 pounds), except trailers manufactured exclusively for 
use as offices or dwellings, be equipped on the sides and rear with a 
means for increasing their conspicuity (57 FR 58406). Trailer 
manufacturers are given a choice of installing either red and white 
retroreflective sheeting or reflex reflectors arranged in a red and 
white pattern. Manufacturers of retroreflective sheeting or reflex 
reflectors intended for use in satisfying these requirements must 
certify compliance of their product with FMVSS No. 108, whether the 
material is used as original or replacement equipment. The effective 
date for the final rule was December 1, 1993.

Summary of the NHTSA Rulemaking

    The NHTSA issued an advance notice of proposed rulemaking (ANPRM) 
on May 27, 1980, requesting comments on methods to reduce the incidence 
and severity of collisions between passenger cars and large trailers 
during conditions of darkness or reduced visibility (45 FR 35405). The 
use of retroreflective materials was considered a possible solution.
    Between 1980 and 1985, the NHTSA conducted a fleet study in which 
retroreflective material was placed on van-type trailers in a manner 
designed to increase their conspicuity during conditions of darkness or 
reduced visibility. The treatment of the trailers consisted of 
outlining the rear perimeter, and delineating the lower sides with 
retroreflective tape. The authors of the study concluded that truck-
trailer combinations equipped with retroreflective material were 
involved in 15 percent fewer accidents (in which a trailer was struck 
in the side or rear by a passenger car at nighttime) than combinations 
that were not equipped with the material. This research is documented 
in the following research reports: Improved Commercial Vehicle 
Conspicuity and Signaling Systems, Task I--Accident Analysis and 
Functional Requirements, March 1981 (DOT HS 806-100); Improved 
Commercial Vehicle Conspicuity and Signaling Systems, Task II--
Analyses, Experiments and Design Recommendations, October 1981 (DOT HS 
806-098); and, Improved Commercial Vehicle Conspicuity and Signaling 
Systems, Task III--Field Test Evaluation of Vehicle Reflectorization 
Effectiveness, September 1985 (DOT HS-806-923). A copy of each of the 
reports is in the docket.
    On September 18, 1987, the NHTSA published a notice discussing the 
results from the fleet study and requesting comments on the research as 
well as information from motor carriers about their experiences using 
reflective material to enhance conspicuity (52 FR 35345).
    In response to the NHTSA fleet study, Congress included in the 
Motor Carrier Safety Act of 1990 (Pub. L. 101-500, 104 Stat. 1218), a 
provision directing the Secretary of Transportation to initiate a 
rulemaking on the need to adopt methods for making commercial motor 
vehicles more visible to motorists. The rulemaking was required to 
begin no later than February 3, 1991, and to be completed no later than 
November 3, 1992.
    Between March 1990 and September 1991 the NHTSA conducted 
additional research on trailer conspicuity. The purpose of the research 
program was to define a range of minimally acceptable large truck 
conspicuity enhancements that could be used as a basis for developing 
Federal regulations. A number of laboratory and field studies were 
carried out to assess the value of using a pattern of retroreflective 
sheeting, the form the pattern should take, the placement of the 
treatment on the trailer, the effect of retroreflective markings on the 
detection and identification of stop and turn signals, and the trade-
off between the width and retroreflective intensity of the treatment 
material. In addition, field surveys were conducted to assess the 
effect of environmental dirt on the performance of the marking systems 
and the durability of retroreflective materials when used on commercial 
motor vehicles.
    The final report for the research conducted between 1990 and 1991 
(Performance Requirements for Large Truck Conspicuity Enhancements, 
March 1992, (DOT HS 807 815)) includes recommendations that the 
retroreflective tape be at least two inches in width, applied in a red 
and white pattern (continuous or broken strip) along the bottom of the 
trailer on the sides, with a continuous strip along the bottom of the 
rear of the trailer. The

[[Page 33613]]

authors also recommend white corner markers at the top of trailers. In 
addition, the report provides recommendations concerning minimum 
retroreflectivity levels, taking into account the effects of 
environmental dirt, aging, and orientation of the marked vehicle. A 
copy of the final report is in the docket.
    On December 4, 1991, the NHTSA published a notice of proposed 
rulemaking (NPRM) based upon the research conducted between 1990 and 
1991 (56 FR 63474). The NHTSA considered its NPRM, which was part of a 
rulemaking initiated before the enactment of the Motor Carrier Safety 
Act of 1990, to be responsive to the congressional mandate and its 
December 10, 1992, final rule as the completion of the rulemaking 
mandated by Congress.

Current FHWA Requirements for Trailer Conspicuity

    The FHWA is responsible for establishing standards for commercial 
motor vehicles operated in interstate commerce. Commercial motor 
vehicles subject to the FMCSRs must meet the requirements of 49 CFR 
parts 393 (Parts and Accessories Necessary for Safe Operation) and 396 
(Inspection, Repair, and Maintenance). The requirements for lamps and 
reflective devices are contained in Secs. 393.11 through 393.26.
    Section 393.11 of the FMCSRs requires that all lighting devices on 
commercial motor vehicles placed in operation after March 7, 1989, meet 
the requirements of FMVSS No. 108 in effect at the time the vehicle was 
manufactured. Therefore, trailers manufactured on or after December 1, 
1993, the effective date of the NHTSA requirement for retroreflective 
tape or reflex reflectors, must have retroreflective tape or reflex 
reflectors of the type and in the locations specified in FMVSS No. 108 
in order to comply with the FHWA's requirements.
    On April 14, 1997, the FHWA published a notice of proposed 
rulemaking in which the agency proposed general amendments to part 393 
of the Federal Motor Carrier Safety Regulations (FMCSRs), Parts and 
Accessories Necessary for Safe Operation (62 FR 18170). The proposed 
amendments covered a wide range of topics, including conspicuity 
treatments on trailers manufactured on or after December 1, 1993. To 
make certain that all motor carriers operating trailers subject to the 
FMCSRs are aware of their responsibility to maintain the conspicuity 
treatment, the FHWA proposed the addition of detailed language under 
Sec. 393.11. The FHWA would cross-reference the specific paragraphs of 
FMVSS No. 108 related to the applicability of NHTSA's trailer 
conspicuity standards, the required locations for the conspicuity 
material, and the certification and marking requirements.

FHWA Rulemaking Concerning Retrofitting

    On January 19, 1994, the FHWA published an ANPRM requesting 
comments on issues related to the application of conspicuity treatments 
to trailers manufactured prior to the effective date of the NHTSA's 
final rule on trailer conspicuity (59 FR 2811). The agency requested 
that commenters respond, at a minimum, to several specific questions 
listed in the notice:
    1. Many motor carriers have been using retroreflective sheeting or 
reflex reflectors which are not of the colors, retroreflective 
intensity, width, or configuration of the conspicuity treatment in the 
NHTSA's final rule. The FHWA seeks information on the type of 
conspicuity treatments in use and quantitative data on the cost and 
effectiveness of those treatments in preventing and/or mitigating 
accidents.
    2. What types of technical problems (e.g., tape not adhering to the 
surface of the trailer) have motor carriers encountered when applying 
conspicuity materials to in-service trailers? Are any problems unique 
to certain types of trailers, or to certain types of paints, coatings, 
or surfaces?
    3. What is the approximate cost (parts and labor) to apply 
conspicuity treatments to trailers? Is special training required for 
employees performing this task? What cost differences may exist between 
having this task performed by the motor carrier's own maintenance 
department or by third parties?
    4. How long must a trailer be taken out of service to have the 
conspicuity material applied to its surfaces?
    5. With regard to conspicuity treatments that differ from those in 
the NHTSA final rule, a retrofitting requirement would result in many 
motor carriers having to replace their current conspicuity treatments 
with one that is consistent with the requirements of FMVSS No. 108. The 
FHWA believes that some form of conspicuity treatment (even certain 
forms which may be less effective than that covered in the NHTSA's 
final rule) is better than no conspicuity treatment. What different 
types of conspicuity treatment are currently being used by motor 
carriers? What results have been experienced by motor carriers using 
conspicuity treatments?
    6. If this rulemaking proceeds, should the FHWA propose requiring 
the same red/white color combination, retroreflective intensity, width 
and configuration as the NHTSA's final rule, or should alternative 
requirements be considered? If alternatives are considered, do 
commenters foresee problems in the enforcement of a retrofitting 
requirement?
    7. If this rulemaking proceeds, should the FHWA consider an 
effective date which is several (2, 3, 4, or 5) years after the date of 
publication of the final rule?
    In addition to responding to the preceding questions, the FHWA 
encouraged commenters to include a discussion of any other issues that 
the commenters believed were relevant to the rulemaking.
    On August 6, 1996, the FHWA published a notice announcing that the 
agency had completed its review of the comments received in response to 
the ANPRM and that it would issue a notice of proposed rulemaking (61 
FR 40781).

Discussion of Responses to the ANPRM

    The FHWA received 955 comments in response to the ANPRM. The 
strongest voice of support came from concerned private citizens--a 
total of 828 responses. The FHWA received 321 responses on behalf of 
Carl Hall, who was killed in a collision with a tractor-semi-trailer 
that blocked the road as the truck driver backed the vehicle into a 
driveway. Another 285 responses were on behalf of Guy Crawford, a 16-
year old boy who was killed in an underride accident with a coal truck. 
In addition, the agency received 223 responses from other concerned 
citizens, many of whom lost family members or friends in accidents 
involving commercial motor vehicles.
    The FHWA has the greatest sympathy for the losses suffered by these 
respondents. The goal of this rulemaking is to reduce the number of 
such accidents, but rules must be based on consideration of evidence 
and data submitted. Since these commenters did not include answers to 
the questions listed in the ANPRM or provide information concerning 
technical or economic aspects of retrofitting trailers with conspicuity 
treatments, the remainder of this preamble will focus on those issues. 
The agency, however, has not ignored the advice of those whose tragic 
personal experiences led them to support a conspicuity rule.
    The specific concerns or issues raised by the commenters that 
discussed technical or economic issues are discussed in the following 
sections.

[[Page 33614]]

General Discussion of Comments Opposed to the Rulemaking

    The FHWA received 40 comments from motor carriers and industry 
groups that were either opposed to any type of retrofitting 
requirements, or supportive of the concept of voluntary use of 
conspicuity treatments but opposed to requiring the red-and-white color 
scheme specified by the NHTSA. The commenters were: Allied Van Lines, 
Inc.; the American Movers Conference (AMC); the American Trucking 
Associations (ATA); Beaver Express Service, Inc.; Becker Hi-Way Frate; 
Bestway Systems, Inc.; BTI; Churchill Truck Lines, Inc.; the Colorado/
Wyoming Petroleum Marketers Association (CWPMA); Contract Freighters, 
Inc.; Crowley Maritime Corporation; Dart Transit Company; Fleetline, 
Inc.; Grote Industries, Inc.; the Institute of International Container 
Lessors; the Interstate Truckload Carriers Conference; John W. Ritter 
Trucking Inc.; Metalcore, Ltd.; the Missouri Motor Carriers 
Association; Mobil Oil Corporation (Mobil); the National Private Truck 
Council (NPTC); the National-American Wholesale Grocers' Association--
International Foodservice Distributors Association (NAWGA/IFDA); the 
Pacific Merchant Shipping Association; the Petroleum Marketers 
Association of America (PMAA); Reliance Trailer Manufacturing 
(Reliance); the Rocky Mountain Oil and Gas Association (RMOGA); San 
Joaquin Sand and Gravel; Schneider National; the Steamship Operators 
Intermodal Committee (SOIC); Talley Transportation; United Van Lines, 
Inc.; United Parcel Service (UPS); USA Truck; Wal*Mart Stores, Inc.; 
Watkins Motor Lines, Inc.; Werner Enterprises; Western Distributing 
Transportation Corporation; the Wyoming Trucking Association, Inc.; 
XTRA Corporation (XTRA); and Yellow Freight System Inc.
    Generally, the commenters opposed to the retrofitting rulemaking 
believe that it is important to improve highway safety. However, many 
of them do not believe that conspicuity treatments are a cost-effective 
solution to the problem of passenger cars colliding with trailers. In 
several cases, the commenters argued that there is not enough data to 
assess the effectiveness of the NHTSA's requirements for trailers 
manufactured on or after December 1, 1993. For motor carriers that 
installed conspicuity treatments on their trailers manufactured before 
December 1, 1993, the opposition to the retrofitting rulemaking is 
based upon the belief that the FHWA would require them to remove 
retroreflective materials that do not conform to the NHTSA standard.
    On the subject of data to support the FHWA's rulemaking, the NAWGA/
IFDA stated:

    Before [the FHWA] issues proposed rules in this docket, NAWGA/
IFDA suggests that accident experience data for [the trailers 
covered by the NHTSA's conspicuity rule]--perhaps for calendar year 
1994--be obtained by FHWA. Indeed, such data would be responsive to 
FHWA's first issue raised in its [ANPRM]--the existence of data on 
the effectiveness of various marking treatments in preventing and/or 
mitigating accidents. With this data in hand, FHWA would then be in 
a better position to proceed to an informed decision as to whether 
to extend the NHTSA requirements to pre-December, 1993 trailers.

    United Parcel Service (UPS) also expressed concern that there is 
insufficient accident data to support a retrofitting requirement. The 
UPS stated:

    A proposed FHWA rulemaking mandating the retroactive 
installation of reflective sheeting is at the very least premature, 
and perhaps entirely unwarranted.
    The first assumption is that the current DOT regulations for 
vehicle visibility are inadequate and need to be improved. In fact, 
FHWA has presented no data to support such a contention. The rule 
also assumes knowledge of what constitutes adequate conspicuity. 
Again, no supporting data is offered.
    UPS unsuccessfully opposed NHTSA's conspicuity rule, arguing at 
the time that the data was insufficient to warrant a rule. In our 
view, FHWA risks compounding NHTSA's mistake, but in an even more 
expensive and less sensible way. If FHWA is willing to delay its 
rulemaking long enough, NHTSA's present regulation (FMVSS No. 108) 
will provide enough reliable data to make a judgement on the safety 
impact of the reflective sheeting. It should be noted that in 
reviewing our own considerable highway safety data, UPS has found no 
evidence to support the creation of a new mandate that would 
immediately [affect] such a large number of vehicles.

    In addition to the NAWGA/IFDA and UPS, the Interstate Truckload 
Carriers Conference (ITCC) commented that the benefits of conspicuity 
treatments have not been proven. The ITCC stated:

    As a general observation, retroreflective sheeting or reflex 
reflectors for trailers manufactured prior to December 1, 1993, 
should be voluntary, not mandatory, although the Federal Highway 
Administration (``FHWA'') may wish to develop and offer recommended 
guidelines to assist those carriers wishing to apply retroreflective 
treatments to their trailer equipment. In spite of the perceived 
safety benefits of having retroreflective sheeting applied to older 
trailers, not one of the carriers responding to the ITCC survey, 
which own and operate more than 34,000 trailers, are able to 
quantify any correlation between their use of retroreflective 
materials and a decrease in trailer accidents where conspicuity was 
a factor. Moreover, operational and cost considerations suggest that 
any requirement to improve trailer conspicuity would be burdensome. 
Should the FHWA proceed with this matter and institute a proposed 
rulemaking, it should propose to accept the conspicuity treatments 
applied to trailers prior to the effective date of any adopted rule, 
even though such treatments may not conform to the NHTSA rules 
prescribing conspicuity treatments for trailers manufactured after 
December 1, 1993, in type, color, size, placement or configuration, 
construction, brightness, or other aspect.

    The ATA opposes a retrofitting requirement because it believes 
there is no cost-effective and reasonable method to apply reflective 
materials to all of the trailers manufactured before December 1, 1993. 
The ATA also indicated that a large number of trailers are already 
marked with materials of greater intensity, but different color schemes 
than those mandated by the NHTSA and that retrofitting to the NHTSA 
color scheme would cause an unjustified economic hardship on many 
carriers. The ATA stated:

    FHWA did not evaluate this regulatory action because of a lack 
of necessary cost information. A federal mandate to retrofit 
reflective materials on trailers built before December 1, 1993, will 
have a significant cost impact. With 3.8 million trailers on 
America's highways, the total cost of a federal mandate will exceed 
$1 billion. This figure includes costs for conspicuity materials, 
labor costs for preparing the trailers and applying the materials, 
and loss of use of trailer productivity while [the trailer is] being 
prepared/repaired and retrofitted.

    In addition the ATA indicated that The Maintenance Council of the 
ATA has published a recommended practice (Large Vehicle Conspicuity 
Markings, RP 722, Issued March 1993, Revised June 1994) concerning the 
application of reflective tape or materials to unmarked trailers, and 
that the Society of Automotive Engineers (SAE) was preparing a Surface 
Vehicle Information Report, Large Vehicle Conspicuity Markings, SAE 
J2117. The ATA believes that there are already market forces (e.g., 
potential litigation) pressuring motor carriers to retrofit their 
trailers with conspicuity materials and that a retrofitting rule is not 
necessary.
    Another commenter expressing concerns about the economic impact of 
a retrofitting requirement was the American Movers Conference (AMC). 
The AMC stated:

    It would be a serious mistake for FHWA to mandate specific 
conspicuity treatments for existing trailers. Such regulatory action 
is

[[Page 33615]]

impractical and would cause unjustified economic burdens for the 
moving industry. However, the trailers now in service in our 
industry are already marked with conspicuity materials that, 
although different in color and composition from that mandated for 
new trailers by NHTSA, are highly visible and effectively 
``conspicuous.''

    The FHWA does not agree with the NAWGA/IFDA and UPS'' assertions 
that there is insufficient data to support a retrofitting requirement. 
The FHWA acknowledges that no studies or analyses of the impact of the 
NHTSA's final rule have been completed to date. However, previous 
research findings concerning trailer conspicuity strongly suggest that 
significant improvements in safety could be achieved by requiring all 
trailers to be equipped with retroreflective materials.
    As indicated in the background section of this notice, between 1980 
and 1985 the NHTSA conducted a fleet study in which retroreflective 
material was placed on van-type trailer combinations in a manner 
designed to increase their conspicuity during conditions of darkness or 
reduced visibility. The study concluded that truck-trailer combinations 
equipped with certain conspicuity materials were involved in 15 percent 
fewer accidents (in which the trailer was struck in the side or rear) 
than combinations lacking the material.
    In addition to the research conducted in the 1980's, the NHTSA 
conducted a study between March 1990 and September 1991 to define a 
range of minimally acceptable trailer conspicuity enhancements that 
could be used as a basis for Federal regulations. The report covering 
the research performed between 1990 and 1991 is entitled Performance 
Requirements for Large Truck Conspicuity Enhancements, March 1992, (DOT 
HS 807 815). A copy of this report is included in the docket. The 
NHTSA's 1992 report states:

    Previous research sponsored by NHTSA [a reference to the 
research documented in Improved Commercial Vehicle Conspicuity and 
Signaling Systems] indicated that the use of retroreflective tape 
markings systems enhanced the conspicuity of large trucks and, 
therefore, had the potential to reduce the number and seriousness of 
car-into-truck crashes. This earlier research specifically examined 
the effectiveness of enhanced conspicuity on the crash experience of 
approximately 2,000 van trailers over a period of 23 months and 
found a significant reduction in conspicuity relevant crashes for 
the treated vehicles as compared to control vehicles (untreated). 
The research report also included a discussion of the methodology 
for the study.

    The authors summarized the research methodology as follows:

    Both laboratory and field investigations were conducted to 
address the issues of interest. For example, two laboratory studies 
were carried out to establish reasonable upper limits for glare from 
retroreflective surfaces. Field measurements of glare from 
retroreflective panels positioned at various distances were then 
taken from different vehicles to relate the laboratory measurements 
to actual driving conditions.
    Minimum reflectivity values were determined from field studies 
that related material reflectivity values to detection distance. 
Full scale presentations of various treatment configurations were 
employed on an actual trailer. The distance at which subjects could 
detect the trailer were measured on each trial. Final 
recommendations were based on values corrected for subject 
expectancy.
    The recommendations for pattern and configuration of 
retroreflective enhancements were based on several field and 
laboratory studies. The first laboratory investigation involved a 
paired comparison of various combinations of red and white 
retroreflective materials viewed at two distances. Two field studies 
were also carried out in which subjects, who were instructed to look 
for ``potential hazards,'' detected and identified various 
retroreflective treatments in a normal driving situation. Finally, 
using computer presentations of stimuli, two additional laboratory 
studies were conducted to evaluate the relative importance of 
different configurations of retroreflective treatments in estimating 
relative vehicle speed and changes in vehicle spacing.
    The tradeoff between treatment width and reflectivity value was 
assessed in a field study in which subjects drove toward different 
retroreflective displays and indicated when they could detect them. 
Measures were taken of detection distance.
    Finally, surveys of trucks in use were conducted to assess the 
effects of environmental dirt and grime as well as degradation due 
to aging. To measure the effects of dirt, 17 trailers were fitted 
with retroreflective patches on the sides and rears. The reflective 
values of these were measured at regular intervals for a period of 
one year. The effects of aging were assessed by measuring the 
reflectivity value of retroreflective material that had been in 
place on trailers for various periods of time. The oldest material 
measured had been in place for more than 20 years.

    The FHWA considers the NHTSA's research results to be reliable 
indicators of the potential safety benefits of the use of 
retroreflective materials in preventing passenger cars from crashing 
into the sides or rear of trailers. None of the commenters identified 
flaws in the research methodology for the work performed between 1980 
and 1985, or the work performed between 1990 and 1991. Furthermore, 
none of the commenters presented technical data that would call into 
question the conclusions and recommendations presented in the NHTSA 
research reports.
    Although several motor carriers indicated that they have not 
experienced any benefits (in terms of preventing passenger cars from 
crashing into their trailers) from using retroreflective tape, the FHWA 
believes that negative conclusions are not valid unless based upon 
detailed information. The information that needs to be evaluated 
includes: the total number of trailers operated by the fleets in 
question; the types of trailers operated; the total number of trailers 
that have conspicuity treatments; daytime and nighttime exposure data 
(miles traveled with a distinction between urban and rural roads) for 
the trailers that were treated with conspicuity materials and the 
trailers that were not treated with conspicuity materials; reflectivity 
levels for the conspicuity materials used; and, color combinations and 
patterns for the conspicuity treatments. The before-and-after accident 
experience of each of the fleets should also be examined carefully. 
None of the commenters indicated that this type of information was 
collected and analyzed, or that such information would be made 
available for review by the FHWA. Therefore, the FHWA does not believe 
that the commenters have provided enough technical information to 
warrant terminating the rulemaking.
    In response to the commenters who argue that the problem of 
passenger cars crashing into trailers is not severe enough to warrant a 
retrofitting requirement, the FHWA believes that the number of these 
collisions indicates that motorists have a major problem recognizing 
trailers at night and under other conditions of reduced visibility. The 
FHWA has reviewed recent accident data and determined that the number 
of accidents, fatalities and injuries are strong indicators of the need 
for continuing this rulemaking. The NHTSA's Fatality Analysis Reporting 
System (FARS) data for 1994 indicates that nighttime collisions in 
which the passenger vehicle struck the side of a trailer at an angle 
(as opposed to sideswiping the trailer) accounted for 119 incidents 
resulting in a total of 140 fatalities. There were 173 nighttime 
incidents involving a passenger vehicle rear-ending a trailer. The 
result was 198 fatalities.
    The FARS data for 1995 indicates that nighttime collisions in which 
the passenger vehicle struck the side of a trailer at an angle 
accounted for 115 incidents resulting in a total of 136 fatalities. 
There were 200 nighttime incidents involving a passenger vehicle rear-
ending a trailer. The result was 224 fatalities. When consideration is 
given to the NHTSA's estimate (based upon

[[Page 33616]]

the research cited earlier in this notice) of the effectiveness of 
trailer conspicuity treatments at preventing certain types of 
accidents, and the NHTSA data on the number of accidents, fatalities, 
injuries, and property damage associated with these accidents, it is 
reasonable to conclude that significant safety benefits could be 
achieved if a retrofitting requirement was established.
    With regard to the ATA's reference to The Maintenance Council's 
(TMC) recommended practice, Large Vehicle Conspicuity Markings, RP 722, 
the FHWA does not believe the TMC publication has any relevance to this 
rulemaking since motor carriers are not required to comply with the 
recommended practice. This is especially the case given that many 
trailers have not been retrofitted with any form of conspicuity 
treatment. The FHWA's observations of trailers currently in use suggest 
that a large number of motor carriers are either unaware of the ATA's 
recommended practice, or have chosen to ignore the recommendation. The 
large number of untreated trailers also suggests that the market forces 
that the ATA alluded to have not been effective in prompting carriers 
to voluntarily retrofit their vehicles. Therefore, the FHWA believes 
that it is necessary to continue this rulemaking and to request public 
comments on the specific regulatory language that is being proposed in 
this notice.
    The FHWA contacted the SAE to inquire about the status of its 
efforts to publish a surface vehicle information report concerning 
conspicuity markings. The SAE advised the FHWA that the project was 
discontinued.
    On the subject of the potential economic impact that this 
rulemaking would have on the motor carrier industry, the FHWA has 
prepared a preliminary regulatory evaluation (PRE) to accompany this 
rulemaking notice. A copy of the PRE is included in the docket. The 
FHWA estimates that the total cost of this rulemaking would be $339 
million. This estimate is based upon the assumption that approximately 
1,373,000 trailers would be covered by the rule (if a 2-year phase-in 
period chosen). The FHWA estimates that the benefits of the rulemaking 
would be approximately $741 million. A detailed discussion of how the 
FHWA prepared its estimates is provided later in this notice for 
commenters that are not able to review the PRE.
    In response to commenters concerned about whether their fleets 
would be required to replace conspicuity treatments that are of a 
different pattern or color scheme than the NHTSA requirements, it is 
not the intention of the FHWA that motor carriers remove conspicuity 
treatments applied to trailers prior to the issuance of this proposal 
solely because they employ different color schemes than that required 
by the NHTSA. To accommodate this concern, the FHWA is proposing to 
allow carriers flexibility in terms of the colors used to satisfy the 
requirements for a period of 10 years from the effective date of the 
final rule. This time period was chosen because trailers that were 
voluntarily equipped with conspicuity treatments will have exceeded 
their useful service lives and be retired from service. It is, 
therefore, reasonable to require that at the end of the 10-year period, 
all motor carriers to use conspicuity treatments that conform to the 
NHTSA standard (i.e., the use of a red-and-white pattern, and 
retroreflective sheeting that is certified as meeting the minimum 
reflectivity levels specified in the NHTSA rule). Although the FHWA 
would allow the use of alternative colors during a 10-year period, the 
agency would adopt regulatory language that encourages motor carriers 
to retrofit their trailers with a conspicuity system that meets all of 
the requirements applicable to trailers manufactured on or after 
December 1, 1993, including the use of retroreflective sheeting or 
reflex reflectors in a red and white pattern. Motor carriers which do 
not retrofit their trailers to the NHTSA standard (for example by using 
an alternative color pattern) during the 10-year period, would be 
required to comply with FHWA's rules concerning the locations and 
colors. The FHWA would require that the locations at which the 
conspicuity treatments are installed be consistent with the NHTSA 
standards under FMVSS No. 108. This preliminary decision is supported 
by information contained in Improved Commercial Vehicle Conspicuity and 
Signaling Systems, Task II, Analyses, Experiments and Design 
Recommendations.
    The research included studies to determine the relative conspicuity 
of certain patterns of retroreflective material in a field setting 
under nighttime and daytime viewing conditions. The color combinations 
included red and white, blue and white, green and white, and 
fluorescent red-orange and white. Pairs of conspicuity patterns were 
installed side-by-side on a truck and viewed at two distances. Subjects 
were asked to judge which of each pair was the most attention 
demanding, appeared closer, and showed the most detail. All possible 
pairs of the 12 test patterns were presented to the subjects. The 
research showed that the high-reflectivity red and white pattern (using 
a 3 to 2 ratio of red to white) was the only configuration that 
received high rankings during both daytime and nighttime conditions. 
The next best patterns, in terms of the test subjects' reactions, were 
high-reflectivity blue and white, and green and white (using 3 to 2 
ratio of the darker color to the white).
    It is very important to note that the researchers acknowledged that 
an ``emphasis was placed on deriving an improved and practical pattern, 
rather than some optimum pattern.'' While the findings indicate the red 
and white pattern was the most effective in terms of hazard 
recognition, it does not imply that other color schemes or patterns had 
no value or effect. Therefore, allowing alternative colors for a 10-
year period will minimize the economic impact of this rule on motor 
carriers that have voluntarily retrofitted their trailers with 
alternate color schemes, while ensuring to the greatest extent 
practicable, safety benefits during the transition period.
    The FHWA fully supports the NHTSA's selection of a standardized red 
and white pattern for use by trailer manufacturers. However, it is 
obvious that similar treatments in other colors already applied by 
safety conscious motor carriers also improve conspicuity and provide 
potential safety benefits. The FHWA believes it would be inappropriate 
to immediately prohibit the use of other colors of conspicuity material 
on trailers manufactured prior to December 1, 1993, because it would 
have the effect of requiring motor carriers to remove reasonable 
conspicuity treatments of other colors from older trailers. Such a 
regulation would penalize motor carriers who had taken steps to 
retrofit their vehicles prior to the establishment of Federal 
standards.
    The principal reason for NHTSA's requirement of a red and white 
pattern was to make the reflective image on the side of a trailer 
recognizable to motorists. Since the side conspicuity treatment 
consists of a single line of material, a distinct color pattern, less 
ambiguous than solid white or yellow, was established so that motorists 
would learn to associate it with trailers. A red and white pattern was 
chosen for standardization because it was already commonly associated 
with danger. This color combination is widely recognized and associated 
with highway hazard warning signs such as stop signs and railroad grade 
crossing gates. NHTSA also considered outlining the sides of trailers 
with reflective material to make

[[Page 33617]]

them recognizable, but rejected that approach because it was more 
costly and impractical for trailer configurations other than van-type 
trailers.
    The FHWA does not believe that this proposal will inhibit NHTSA's 
goal of having the public learn to associate a long red and white line 
of retroreflective sheeting (or reflex reflectors) with the side of a 
trailer. On the contrary, the agency expects the majority of 
conspicuity retrofits to be red and white despite an equitable policy 
toward existing treatments of other colors during a 10-year transition 
period. The NHTSA has received numerous inquiries from fleets about 
voluntary retrofitting since 1993 and none of those fleets expressed an 
interest in color combinations other than red and white. At the end of 
the 10-year period, all trailers, irrespective of the date of 
manufacture, would be required to be equipped with red-and-white 
retroreflective material which meets the NHTSA's requirements, 
including certification marking. During the transition period the 
FHWA's regulations will continue to require red and white treatments be 
maintained on trailers manufactured on or after December 1, 1993. 
Therefore there is no financial or aesthetic incentive for motor 
carriers to retrofit their older trailers in ways that avoid a common 
fleet appearance with their newest equipment and with future 
acquisitions.
    In addition to the reasons cited in the preceding paragraphs, the 
FHWA has opted to allow flexibility for trailers that have not been 
retrofitted with any type of conspicuity treatment because it would be 
difficult, if not impossible, to enforce a requirement for the use of 
red and white material. The agency would have to distinguish between 
older trailers covered by the proposed ``grandfathering'' clause, and 
older trailers that were retrofitted on or after the effective date of 
the final rule. The FHWA is not aware of a practical and effective 
means of obtaining proof of the date that the reflective material is 
actually installed on the trailers.
    The FHWA requests comments on its preliminary decision to allow, 
during a 10-year transition period, motor carriers flexibility in the 
colors or color combinations of retroreflective materials that would be 
used to satisfy the proposed requirements.

General Discussion of Comments in Support of the Rulemaking

    As mentioned previously in this notice, the FHWA received 828 
comments from concerned citizens (including individual truck drivers) 
in support of the rulemaking. In addition to the concerned private 
citizens the FHWA received 87 comments from companies, organizations, 
law firms (most of which represented individuals who were killed or 
injured in accidents involving a commercial motor vehicle), State 
governments, and municipal governments (including fire and police 
departments). Commenters included: 3M; Advocates for Highway and Auto 
Safety (the Advocates); Alterman Transport Lines, Inc.; the American 
Society of CLU and ChFC; the Denton County Democratic Party; the Eye 
Care Center; the Insurance Institute for Highway Safety (IIHS); the 
National Sheriffs' Association; Roberson Corporation; R.R. Crawford 
Engineering; D.A.S. Roofing Company; Joseph E. Badger Accident 
Reconstruction Services; the Wellness Center; the Seniors Civil 
Liberties Association, Inc.; the Maryland State Highway Administration; 
Merck and Co., Inc.; the Montana chapter of the American Automobile 
Association; Miller and Bethman, Inc.; Minnesota State Representative 
Sidney Pauly; Minnesota State Patrol; New Jersey State Senator John J. 
Matheussen; New York City Department of Transportation, Bureau of 
Traffic; City of Tampa, Department of Public of Works; Strategic Metro 
Area Reduction Team, Inc.; Transamerica Leasing, Inc.; U.S. 
Representative James C. Greenwood; U.S. Representative Paul McHale; 
former U.S. Representative Marjorie Margolies-Mezvinsky; University of 
South Florida, Department of Community and Family Health; Montana 
Office of Public Instruction; Kay E. Konz, Nebraska Volunteer 
Coordinator for Citizens for Reliable and Safe Highways; Operation 
Front Line; and the Owner-Operator Independent Drivers Association 
(OOIDA).
    The OOIDA indicated that it supported the NHTSA's rulemaking to 
require conspicuity treatments on newly manufactured trailers because 
it agreed with NHTSA's findings that better conspicuity would 
significantly reduce the likelihood of side and rear collisions. The 
OOIDA stated:

    It has been the experience of the Association that owner-
operators equip their vehicles in such a way that better use is made 
of reflective devices and additional lighting. OOIDA believes that 
it would be in the best interests of motor carriers to do all that 
is necessary to enhance the visual conspicuity of their vehicles, 
regardless of the age of the tractor or trailer in question. Not 
only will the safety of the driving public be increased, but 
insurance costs would likely be reduced. For example, OOIDA works 
closely with one insurance company that already requires reflective 
devices on flatbed trailers. However, such requirements should not 
be left to the uncertainties of voluntary compliance.

    The Insurance Institute for Highway Safety (IIHS) indicated that 
requiring retrofitting of the red and white retroreflective materials 
is needed to achieve the full safety benefits of the NHTSA requirements 
in terms of reductions in deaths, injuries, and property damage. The 
IIHS believes that only a portion of the fleet of trailers will be 
replaced during a given year and that the retrofitting should be 
required for all trailers in operation.
    The Advocates also supports a requirement to retrofit vehicles with 
conspicuity treatments that conform to the NHTSA standard. The AHAS 
stated:

    Given the fact that the current regulation is in effect, 
Advocates wants to stress early in these comments that, 
notwithstanding our concern that the NHTSA did not choose an optimal 
reflectorization design for truck trailers, we think it is crucial 
that any retrofit of existing heavy truck trailers with reflective 
materials should adhere strictly to the marking regime established 
by NHTSA in its amended Final Rule. The importance of [an] 
unambiguous conspicuity message for other drivers cannot be 
overestimated and, therefore, any proposal for reflectorization of 
the sides and rears of trucks by the FHWA should conform in all 
particulars to the regulation for new trailers. Competition from 
reflectorized logos and accessory reflectorization of trailers 
already threatens to overwhelm the sparse conspicuity signature of 
the NHTSA FMVSS. Any prospective Federal Motor Carrier Safety 
Regulation (FMCSR) must assist in reducing the wide variety of 
competing conspicuity cues already present in the existing truck 
fleet. Without such uniformity, the FHWA may saddle the motor 
carrier industry with an additional financial burden that does not 
reap substantial benefits in reducing both crashes and crash 
severity.
    In addition, the AHAS argues that the FHWA should require 
retrofitting of conspicuity materials on single-unit trucks and apply 
the conspicuity requirements to vehicles operated in the United States 
by Canada- and Mexico-based motor carriers.
    Several law firms submitted comments in support of a retrofitting 
requirement. One of the firms was Elliot, Reihner, Siedzikowski, North 
and Egan which represents the estates of Marion Steward and Carl Hall, 
both of whom were killed in accidents involving collisions into the 
side of a trailer. David Narkiewicz, responding on behalf of the law 
firm, stated:

    There is no question in my mind but that both of the above 
individuals would still be alive if appropriate retroreflective tape 
and additional lighting had been installed on both of the tractor 
trailers which were positioned at 45 degree angles across both lanes 
of the highway in both accidents.


[[Page 33618]]


    On the subject of the red and white pattern for conspicuity 
treatments, Mr. Narkiewicz stated:

    [M]any of the conspicuity experts which I have utilized have 
told me that the broken pattern of red and white now mandated on new 
trailers is not as good as solid white, so I would ask that 
reflective tape be required but leave the colorant pattern up to the 
owners of the vehicles. There should be minimum standards as to size 
and location but do not overregulate so that improvements in the 
future would not be possible because of rigid guidelines that need 
to be continually amended.

    Only one motor carrier submitted a comment in support of a 
requirement to retrofit vehicles in a red and white pattern. Alterman 
Transport Lines, Inc. (Alterman), with a fleet of 1,400 trailers, 
indicated that it had already started retrofitting its older trailers. 
Alterman stated:

    We think it provides perfect visibility. We have checked 
conditions a number of times especially during the night in rainy 
and foggy conditions, indeed it does support that which the program 
was designed [to accomplish].

    The FHWA agrees that older trailers should be retrofitted with red-
and-white conspicuity treatments. However, the FHWA believes that motor 
carriers should not be penalized for voluntarily retrofitting their 
trailers with conspicuity treatments of alternate colors. The FHWA is 
proposing to allow these carriers 10 years to continue to use the non-
conforming colors. The end of the 10-year period would coincide with 
the expected end of the useful service life of the vehicles in 
question.
    The NHTSA in its final regulatory evaluation estimated that the 
average trailer has a useful service life of approximately 14 years. 
Commenters to both the NHTSA's NPRM and the FHWA's ANPRM generally 
agreed with this estimate. Tank trailers are both more expensive and 
more durable than other types of trailers and are believed to have a 
useful life of approximately 20 years. The NHTSA requirements cover 
trailers manufactured on or after December 1, 1993, which means that 
the 14-year useful service life on most trailers manufactured shortly 
before this date would be reached around the year 2007. The useful 
service life of most tank trailers would be reached around the year 
2013. Therefore, the 10-year period will help to ensure that motor 
carriers operating trailers equipped with non-conforming conspicuity 
treatments will not be penalized by the retrofitting rulemaking. 
However, if these carriers choose to continue operating these trailers 
at the end of the 10-year period, the vehicles would have to be 
retrofitted with a conspicuity treatment that conforms to the NHTSA 
standard. For carriers operating tank trailers equipped with non-
conforming conspicuity treatments, the old treatments would have to be 
replaced with a conforming conspicuity treatment within 10 years of the 
effective date of the final rule.
    As discussed in the preceding section of this notice, the NHTSA's 
research suggests that there are potential safety benefits from the use 
of other color combinations. While the FHWA fully supports the NHTSA's 
decision to require the red and white pattern on newly manufactured 
trailers, attempting to immediately extend that requirement to trailers 
that are already equipped with a different conspicuity scheme would not 
result in a cost effective improvement in safety. The FHWA is not aware 
of data that would enable the agency to conclude that the level of 
effectiveness of the alternative color schemes on older trailers is 
unacceptable for use during the proposed 10-year transition period.
    The FHWA does not intend to propose, at this time, conspicuity 
treatments on single-unit trucks. This rulemaking is not intended to 
serve as a forum for resolving complaints about the NHTSA's conspicuity 
rulemaking. The NHTSA provided all interested parties with the 
opportunity to comment on the amendments to FMVSS No. 108 during its 
rulemaking on trailer conspicuity.
    The Advocates have not provided data to prove that a retrofitting 
requirement for single-unit trucks would be a cost-effective solution 
to the problem of passenger vehicles colliding with single-unit trucks. 
The NHTSA's accident data (Fatality Analysis Reporting System (FARS) 
and General Estimates System (GES)) indicate that combination vehicles 
are over represented in collisions involving passenger vehicles 
striking the sides or rear of commercial motor vehicles. This means 
that the number of accidents in which a passenger vehicle strikes a 
combination vehicle (a single-unit truck pulling a trailer(s), or a 
truck-tractor pulling a trailer(s)) exceeds the amount that one would 
expect if one looked at the percentage of the registered commercial 
vehicle fleet that is listed in the combination-vehicle category.
    In 1995 there were an estimated 16,674 nighttime accidents in which 
one commercial motor vehicle and one passenger vehicle were involved. 
All of these accidents resulted in a fatality, injury, or one of the 
vehicles incurring damage severe enough to require that the vehicle be 
towed from the accident scene. In 4,734 of these accidents, a passenger 
vehicle rear-ended a trailer (2,313 cases) or struck the side of the 
trailer (2,421 cases). By comparison, in 2,027 of the 16,674 nighttime 
accidents a passenger vehicle rear-ended a single-unit truck or truck-
tractor (1,112 cases) or struck the side of the single-unit vehicle 
(915 cases).
    Looking at the 1995 FARS data, there were 914 fatal nighttime 
accidents involving one commercial motor vehicle and one passenger 
vehicle. In 315 of these accidents, a passenger vehicle rear-ended a 
trailer (200 cases) or struck the side of the trailer (115 cases). By 
comparison, in 67 of these nighttime accidents a passenger vehicle 
rear-ended a single-unit truck or truck tractor (50 cases), or struck 
the side of the single-unit vehicle (17 cases).
    The 1995 nighttime accident statistics indicate that the frequency 
with which passenger vehicles strike the rear of trailers is double the 
frequency with which passenger vehicles strike the rear of single-unit 
vehicles. The frequency with which passenger vehicles strike the side 
of a combination vehicle is approximately 2.6 times the frequency with 
which passenger vehicles strike the side of a single-unit vehicle. The 
FARS data for 1995 show that frequency of fatal nighttime accidents 
involving a passenger vehicle striking the side of a combination 
vehicle is almost seven times the rate at which passenger vehicles 
strike the side of a single-unit commercial motor vehicle. The 
frequency of fatal nighttime accidents involving a passenger vehicle 
rear-ending a combination vehicle is four times the rate at which 
passenger vehicles strike the rear of a single-unit commercial motor 
vehicle.
    The difference between the nighttime accident involvement for 
combination vehicles and single-unit vehicles is especially important 
because the number of registered single-unit trucks (4,219,920) is 2.63 
times the number of combination trucks (1,607,183).<SUP>1</SUP> 
Therefore, combination vehicles represent approximately 27 percent of 
the fleet, but 70 percent (4,734 out of 6,761 cases) of nighttime 
accidents in which a passenger car struck the side or rear of a 
commercial motor vehicle. Looking at the fatal nighttime accidents, 
combination vehicles were involved in 82 percent (315 out of 382 cases) 
of the incidents in which a passenger vehicle struck the side or rear 
of a commercial motor vehicle. Based upon this data, the FHWA has 
decided to limit this rulemaking to semi-trailers and trailers.
---------------------------------------------------------------------------

    \1\ Summary of Medium and Heavy Truck Crashes in 1990, National 
Highway Traffic Safety Administration, February 1993 (DOT HS 807 
953).

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

[[Page 33619]]

    The FHWA agrees with the Advocates' recommendation that the 
retrofitting requirements apply to Canada- and Mexico-based vehicles. 
The agency's proposal applies to trailers operated by foreign-based 
motor carriers. This issue is discussed in greater detail later in this 
notice.
    With regard to commenters who believe that specific accidents would 
not have occurred, or the severity of the accidents would have been 
decreased, if the trailers involved had been equipped with conspicuity 
treatments, the FHWA notes that the commenters offered more conclusions 
than evidence. While it is possible to estimate, based upon an analysis 
of accident data and a structured research program, the percentage of 
certain types of accidents that could be prevented if conspicuity 
requirements are established for all trailers, it is generally 
difficult to identify a specific accident and state with certainty that 
the use of retroreflective tape would have prevented the accident.

Motor Carrier Experiences Applying and Maintaining Conspicuity 
Treatments

    The FHWA received comments from motor carriers, industry groups, 
and manufacturers of retroreflective sheeting in response to the 
question concerning motor carrier experiences retrofitting their 
trailers with conspicuity materials. Both supporters and opponents of 
the retrofitting rulemaking provided detailed information.
    Contract Freighters, Inc. (Contract Freighters) indicated that when 
attempting to retrofit its trailers in 1986 and 1987, several hours of 
labor were required to prepare the surface of the trailers for proper 
adhesion of the conspicuity treatment. Contract Freighters also 
indicated that most trailers have a line of rivets that sometimes 
hamper the application of reflective tape. The company stated:

    The other problems with large fleets is the ability to move all 
the equipment to one location where the treatment can be applied in 
a cost effective manner. During 1986 and 1987 we were unable to get 
all 1,500 trailers retrofitted simply due to the logistics problems 
of getting them to our shop.
    The application is very time consuming and while a trailer may 
pass through our facility for inspecting and routine maintenance, 
there were consistently occasions that time simply did not permit 
putting the trailer out of service for conspicuity treatment.

    The Interstate Truckload Carriers Conference (ITCC) indicated that 
the primary difficulty that its members experienced in retrofitting 
trailers was the preparation of the surface. The ITCC stated:

    Some carriers report an inordinate amount of time consumed with 
surface preparation so that adhesive-backed conspicuity treatments 
will properly adhere to the trailer surface. Some older trailers 
have gouges, scratches, and surface metal deterioration that result 
in poor application. Other older trailers have poor paint finishes 
that similarly prevent proper adhesion. On these older trailers, 
carriers report the need to sand, prepare, and repaint trailers 
before adhesive-backed conspicuity treatments can be applied. 
Ironically, some newer trailers manufactured before December 1, 
1993, are treated with a paint finish, designed to reject moisture 
and dirt, that makes it difficult for adhesive tape to adhere to the 
trailer surface.

    On the subject of maintaining the conspicuity treatments that had 
been retrofitted on the older trailers, the ITCC stated:

    Maintenance of adhesive tape poses a problem for carriers. Many 
carriers simply do not apply adhesive tape--or any other reflective 
markers--on the trailer underride bar because of the abuse that area 
of the trailer experiences, at loading docks and when used as a step 
for trailer entry, and because of the almost immediate corresponding 
reduction in retroreflective benefit. Carriers operating flatbed 
trailers report a harsh environment for retroreflective applications 
generally, as a result of chains and bindings that are often used 
with such equipment and which scrape against reflective treatments. 
On some applications, dirt was found to be obscuring the edge of the 
reflective material, so the material is now being edge-coated to 
prevent this problem.

    The NAWGA/IFDA indicated that its members generally have not 
experienced problems applying reflective materials to their trailers. 
However, members of NAWG/IFDA did encounter adhesion problems on some 
of the older trailers because of rust and the condition of the trailer 
surfaces. The NAWGA/IFDA stated:

    For those members that have experienced problems, the biggest is 
not so much a ``technical'' problem as a matter of preparing the 
surface of the trailer before installation of the material. Cleaning 
the surface before application of the material can be a labor-
intensive and costly process. In addition, certain types of 
conspicuity materials cannot be properly installed over or around 
rivets and welds.

    Grote Industries, Inc., a manufacturer of lighting devices, 
mirrors, wiring systems, emergency warning equipment, and switches 
stated:

    As a manufacturer of painted, plated, and decorated parts, many 
of which require adhesive labels, the importance of good surface 
preparation is well [known] to us. There is a wide range of surfaces 
found on both new and in-service trailers (e.g., steel, aluminum, 
wood, fiberboard, various types and grades of paint, etc.) and they 
will or have been exposed to a wide range of contaminants and 
environmental effects (e.g., salt, water, oil, gas, dirt, dust, wind 
abrasion, diesel fuel, etc.). The net effect is a huge variety of 
possible barriers to good adherence of conspicuity tape. It is clear 
that many if [not] all in-service trailers will have surfaces that 
are chipped, oxidized, rusted, dirty, oily, dented, scratched, and 
contaminated in numerous ways and combinations of ways. The only way 
to provide even a chance for adherence of conspicuity tape would be 
to restore the trailer's finish to its original condition; a process 
that will be both costly and time consuming.

    XTRA also expressed concerns about getting conspicuity materials to 
adhere to the surface of older trailers. XTRA stated:

    Any retrofitting requires the application of materials to 
trailers in varying conditions and produces less than optimal 
results. Trailer surfaces must be cleaned to achieve satisfactory 
adhesion. Conspicuity treatments cannot be applied satisfactorily in 
cold and adverse weather conditions. Because of the lack of indoor 
facilities, this limits the time of year in which conspicuity 
treatments could be applied in many areas of the country. 
Retrofitting of trailers may have to be repeated to maintain the 
conspicuity to the standard because of durability problems in 
applying materials to existing trailers.

    The SOIC indicated that it is not aware of any intermodal chassis 
fleets which utilize conspicuity treatments other than required lights 
and reflectors. The SOIC stated:

    Many, if not most, intermodal chassis in service today have been 
coated with wax-based coatings. Tape materials will not adhere to 
these coatings and it would be necessary to apply the 
retroreflective tape to metal plates which must then be riveted or 
welded to the chassis structure.
    In addition, because intermodal chassis have very narrow 
profiles at the front and rear, it will be necessary for most 
chassis fleet operators to purchase new identification markings and 
reapply them in new locations in order to comply with the rules 
being contemplated hereunder. A third technical problem, not 
encountered in the manufacture of new equipment, is that adhesive 
films cannot generally be applied under very low temperature or high 
humidity conditions, thus affecting the ease of application of many 
field locations.

    Schneider explained that in the case of polyurethane paints and 
other high gloss enamel surfaces, all road grime must be removed from 
the surface prior to applying the conspicuity treatment. Schneider 
indicated that normally an ordinary solvent is sufficient to properly 
clean the surface. It was emphasized that surface temperature is 
critical. The surface of the trailer must be greater than 4.4 deg.C 
(40 deg.F) for proper adhesion of the conspicuity treatment.
    Schneider also indicated that it had experienced difficulty 
applying retroreflective sheeting to rear underride devices. Schneider 
stated:


[[Page 33620]]


    The application of reflective sheeting to the rear underride 
protection of semi-trailers is best done when the underride 
protection is brand new. When applying to an old surface that has 
the normal wear and tear type abrasions and nicks in the painted 
surface that has resulted in a certain amount of surface rust, the 
surface must be buffed clean, painted, allowed to dry and then have 
the reflective sheeting applied in a retrofit operation. This is one 
of the more costly aspects of applying reflective sheeting to the 
rear of the trailer during retrofit and it is also an area of high 
maintenance because of the abrasion and scuffing of the reflective 
sheeting caused by locking devices which attach to the bumper at the 
dock areas during loading and unloading of the semi-trailer.

    By contrast, the OOIDA indicated that none of its members had 
submitted complaints concerning technical problems applying conspicuity 
treatments to trailers.
    The 3M Corporation stated that ``Proper surface preparation 
protocols, tests for surface evaluation and application techniques have 
been developed which, when followed and used with properly manufactured 
adhesive systems, ensure optimal conditions for the formation of 
adhesive bonds.'' The 3M Corporation also stated:

    There are some surface coatings, such as ``non-hardening'' 
paint, which are formulated to have very low surface energy. An 
alternate (non-adhesive) system is required to affix conspicuity 
treatments to these substrates.

    The FHWA recognizes the difficulties that motor carriers have had 
retrofitting conspicuity treatments to older trailers. The agency has 
considered the technical problems associated with installing 
conspicuity treatments as part of the process for preparing the 
preliminary regulatory evaluation (PRE) to accompany this notice. The 
agency has also considered the scheduling problems cited by the 
commenters and used this information as one of the factors for deciding 
to propose a two-year phase-in period for installing retroreflective 
materials on trailers that are not equipped with any form of 
conspicuity treatment, and a 10-year transition period to replace non-
conforming treatments with retroreflective material that conforms to 
the NHTSA requirement.
    The agency believes that, in most cases, retrofitting an older 
trailer would not require major repairs of the trailer. Generally, 
thorough cleaning and proper preparation of the surfaces on which the 
retroreflective materials would be applied should be adequate to ensure 
that the tape sticks to the trailer for the remainder of the trailer's 
service life. The FHWA encourages commenters to this NPRM to provide 
additional information, including color photographs, concerning surface 
conditions of in-service trailers that require extensive repairs prior 
to applying conspicuity materials.
    In response to comments concerning the difficulty of retrofitting 
conspicuity treatments to the rear underride guard, the FHWA is not 
proposing that carriers be required to apply retroreflective material 
at that location. The FHWA believes that requiring conspicuity 
treatments on the rear underride guard would, in many cases, also 
require the complete refurbishment of the underride device and 
significantly increase the economic burden of a retrofitting rule. 
Extensive work on the underride device would increase the amount of 
time the trailer would be out of revenue service, and the labor, 
supplies and materials needed to complete the retrofitting process. 
While there are potential safety benefits to having conspicuity 
treatments on the rear underride, the agency does not have enough 
information to ensure that safety benefits that would be gained by 
requiring the retrofitting of conspicuity treatments on the underride 
guard exceed the costs for installing and maintaining the reflective 
material in that location. The FHWA requests comments from all 
interested parties on this issue.

Color Combinations Currently Used by Motor Carriers

    The FHWA received numerous comments from industry groups, motor 
carriers, and manufacturers of retroreflective sheeting in response to 
the request for information about current conspicuity schemes. Both 
supporters and opponents of the retrofitting rulemaking provided 
detailed descriptions of the types of reflective tape/material in use 
on trailers manufactured before December 1, 1993.
    Gra-Gar, Inc. (Gra-Gar), which operates approximately 8,000 
trailers manufactured before December 1, 1993, indicated that all of 
its older trailers are marked with a ``light blue diamond grade 
reflective tape'' which is compatible with the color scheme on its 
trailers. Gra-Gar believes that this color scheme is adequate and 
provides high visibility during nighttime hours.
    Mobil Oil Corporation (Mobil), with a domestic fleet of more than 
200 trailers (primarily MC-306 specification cargo tanks), is concerned 
that the FHWA's rulemaking does not acknowledge additional trailer 
visibility enhancement associated with the use of retroreflective 
corporate logos. Mobil stated:

    Mobil's conspicuity enhancements to trailer sides include 
application of two 2-inch-wide strips of white retroreflective tape: 
one delineating the trailer overturn rail and one delineating the 
trailer lower-side rails; two retroreflective corporate logos: one 
27-inch diameter ``Pegasus'' medallion and one 23-inch high by 77-
inch ``Mobil'' trademark on each side of cargo tank equipment. 
Mobil's conspicuity enhancements to the trailer rear include 
application of one 19-inch high by 66-inch length retroreflective 
``Mobil'' trademark and an eight-inch high by 108-inch length 
retroreflective bumper strip. Retroreflective DOT placards have also 
been applied to both sides and the front and rear heads of cargo 
tank equipment.

    The 3M Corporation stated:

    In addition to the NHTSA standard Red & White sheeting, we have 
supplied prismatic material for conspicuity in Blue & White, Red, 
Orange, White and other colors. These colors were chosen for their 
compatibility with existing graphics or corporate identity systems, 
as well as for their conspicuity.

The 3M Corporation indicated that its own vehicles have been marked 
with conspicuity materials since 1979. Red and white markings are used 
on the rear of the trailer and white markings are used on the sides.
    The American Movers Conference stated:

    The use of reflective treatment for trailers is not new in the 
moving industry. Movers have been installing reflective markings on 
trailers for a number of years. As an example, North American Van 
Lines began installing reflective logos and ``barricades'' on the 
rear doors of their trailers in 1969, and since 1988 have been using 
``jumbo'' reflective logos and sheeting on the sides of trailers. In 
addition, some of their more recently acquired trailers are also 
equipped with [1\1/2\ inch] reflective silver striping along the 
side rails. Mayflower, Allied and United have likewise been using 
reflective enhancements to highlight their corporate logos on the 
sides and rear of trailers.

    Schneider National (Schneider) indicated that it has approximately 
21,000 trailers that have reflective sheeting applied in a pattern 
established by the company to meet its internal requirements 
established in 1987. Schneider uses orange reflective sheeting (2-inch 
by 12-inch segments) in an alternating pattern to outline the perimeter 
of the rear of its van-type trailers. Both of the vertical supports of 
the rear underride device as well as the horizontal member have white 
reflective sheeting applied (one 12-inch segment for the vertical 
components, and one 36-inch segment for the horizontal component). The 
sides of the trailers are outlined in a pattern of 36-inch long, 2-inch 
wide orange reflective sheeting.
    The ATA indicated that a number of motor carrier fleets are already 
using reflective materials that meet or exceed the NHTSA requirements 
for reflectance and that the prevailing

[[Page 33621]]

opinion among these fleets is that the color red should be used only on 
the rear of all trailers. The ATA stated:

    Current fleet applications of reflective materials follow the 
NHTSA rule in the scheme of application, with a few basic 
deviations. Most fleets use a broken line on the side of trailers. 
The rears of the trailers have, for the most part, a broken outline 
and/or a barricade pattern. The deviations from the NHTSA rule are 
the use of other colors than red, e.g., blue, orange or green and 
leaving tape off underride devices and the top of headerboards.

    In response to the comments, the FHWA is proposing to allow, during 
a 10-year transition period, motor carriers to use color combinations 
other than red and white to satisfy the proposed retrofitting 
requirements. At the end of this transition period, however, motor 
carriers would be required to use conspicuity treatments that conform 
to the NHTSA requirements for trailers manufactured on or after 
December 1, 1993. As indicated earlier in this notice, the FHWA 
believes that there are safety benefits associated with the use of 
other color combinations. There is insufficient data to require motor 
carriers to immediately remove conspicuity treatments that have been 
applied to trailers manufactured before December 1, 1993. The 
effectiveness of these alternate approaches, in terms of getting the 
attention of motorists, may be close enough to the NHTSA standard that 
a requirement to replace existing treatments prior to the end of the 
useful service life of the trailers would not be cost effective. 
Therefore, the agency is proposing to allow, during a 10-year 
transition period, alternate colors or color combinations, with the 
stipulation that red retroreflective sheeting or reflex reflectors 
cannot be used along the sides of the trailer unless it is part of a 
red and white pattern.
    With regard to commenters requesting that the FHWA consider 
allowing the use of reflective logos as a substitute for the more 
conventional forms of conspicuity treatments, the FHWA is not aware of 
any research data or other information that would support such a 
decision. Therefore, the FHWA is not proposing to allow the use of 
logos in lieu of retroreflective material in the locations specified in 
FMVSS No. 108. However, logos may be used in addition to the 
retroreflective material.

Costs To Install Conspicuity Treatments

    The FHWA received numerous comments from private citizens, motor 
carriers, industry groups and manufacturers concerning the costs of 
installing conspicuity treatments.
    Generally, the private citizens estimated that retrofitting a 
trailer costs less than $200. Most of the commenters stated that 
Landstar System retrofitted its trailers at a cost of $125 to $135 per 
trailer for a total cost of approximately $1 million. However, none of 
the commenters provided documentation of these estimates, and Landstar 
System did not submit comments.
    As far as comments from the industry, Ryder Commercial Leasing & 
Services (Ryder) indicated that when a trailer is ``almost new'' it 
typically costs $250 (material, labor and adequate attention/skill in 
cleaning) for a 48-foot trailer, if the NHTSA requirement for 
reflective material on the rear underride is excluded.
    Contract Freighters, Inc. stated that ``A recent quote from a 
current vendor to supply reflective material came to approximately 
$50.00 per trailer. This estimate included material for the sides and 
rear of the trailer.'' The labor involved would include approximately 
``one-hour per trailer at an average labor rate of $30.00 per hour.''
    Bestway Systems, Inc. estimates that the cost of conspicuity 
markings would be approximately $90 per trailer for the tape plus a 
minimum of 2 hours labor at $35 per hour for a total of $160.
    The Interstate Truckload Carriers Conference (ITCC) commented that 
its members reported costs ranging from $65 for 1,248 square inches of 
reflective material to $150 for 2,424 square inches of material. The 
ITCC also stated:

    There is a variance of up to 30 percent in the cost of materials 
for those carriers using a similar number of square-inch treatments. 
Thus, one carrier with 2,500 square inches of conspicuity treatments 
reports a cost of $100.00 per trailer for materials, which generally 
consist of the retroreflective treatment, tape, screws, and other 
required materials. Other carriers experience a much greater 
materials cost, such as $580.00 for 3,456 square inches of 
treatment.
    Labor costs vary as well, and reflect the amount of time needed 
to adequately prepare the trailer surface for adhesive application, 
to trim the material, and the like. Some carriers have not directly 
figured the labor cost of applying conspicuity treatments, as it is 
performed within the general duties of shop personnel. Other 
carriers report labor costs per trailer of as much as $300.00, again 
depending upon the amount of treatments per trailer. Only a few 
carriers reported seeking bids from outside vendors for conspicuity 
application, and reported quotes of about $185.00 per trailer for 
labor costs only.

    The ATA believes that the labor costs for retrofitting tape cannot 
be accurately determined due to extreme variations in serviceable 
trailer conditions. However, the ATA estimates that the total cost per 
trailer could reach $1,400. The ATA derived its estimate as follows:

    ATA Estimate for Retrofitting a Trailer With Conspicuity Material   
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
MATERIALS:                                                              
   Tape....................................  $75-100                    
  Chemicals................................  25-150                     
  Repair parts (rubrails)..................  200                        
LABOR:                                                                  
  Cleaning/grease..........................  175-200                    
  Cleaning/oxide...........................  300                        
  Vehicle repairs (replace rubrails).......  500                        
                                            ----------------------------
    Total Cost.............................  1,400                      
------------------------------------------------------------------------

    The National Private Truck Council stated that some of its members 
reported an approximate cost of $250 for parts and labor with a high-
end of $740 per trailer.
    The Steamship Operators Intermodal Committee (SOIC) stated:

    The costs to apply conspicuity treatment to existing intermodal 
chassis vary widely, depending on the fleet operator's labor 
arrangements and the location at which the work is accomplished. 
Material expenses range from a low of $40.00 per chassis to a high 
of $75.00. Labor costs range from $25.00 per hour at some non-union 
locations to $48.00 at some unionized facilities. Two to four man-
hours would be required to apply the material.
    Thus, the direct costs for applying retroreflective materials to 
a container chassis can vary from a low of $90.00 to a high of 
$267.00. It is SOIC's view that the mean is probably in the $210.00 
range. This does not include transportation to and from repair shops 
nor out-of-service time.

    The Pacific Merchant Shipping Association estimates that the cost 
for a conspicuity retrofit would be approximately $470 per chassis. 
This includes the cost of a new ``stepguard,'' labor, plates and tape. 
The estimate does not include the cost of down time for the chassis or 
for drayage to and from the retrofit site.
    The AMC indicated that its members reported costs from $250 to $500 
for reflective tape with labor costs between $150 on a relatively new 
trailer and $300 for a trailer that required surface preparation.
    The PMAA surveyed its members and determined that the cost of 
installing reflective material is estimated to be approximately $500 
per vehicle. The association believes that when vehicle down time and 
administrative expenses are considered, the total cost per trailer 
would rise to more than $1,000.
    Schneider National indicated that the cost of retrofitting an 
individual trailer is approximately $180 for materials and labor. 
Schneider National also indicated that there is a cost associated with

[[Page 33622]]

pulling a trailer out of the fleet for the retrofitting process. The 
cost for pulling the trailer out of revenue service is $75 per day. The 
company believes a trailer can be retrofitted with only one day of lost 
productivity.
    Yellow Freight Systems, Inc. (Yellow) estimates the cost of 
retrofitting the trailers in its fleet to be between $168.11 and 
$183.94 depending on the type of trailer.
    In addition to motor carriers and leasing companies, the FHWA 
received one comment from a trailer manufacturer, Reliance Trailer 
Manufacturing (Reliance). Reliance reported that its costs to install 
conspicuity treatments on new trailers is between $125 and $175. 
Reliance also stated:

    On a used trailer, the cost to install the reflective tape would 
be significantly higher. This additional cost is due to the 
preparation required [for the] contact surface of the trailer prior 
to application of retroreflective sheeting. The additional time 
required to sand, prime, and paint throughout the installation 
process could range from $200-$1,000 per trailer. (In addition to 
the regular conspicuity cost.)

    The FHWA estimates that the total costs of retrofitting a 45-53 
foot van-type trailer would be approximately $316. This estimate 
includes the cost for the retroreflective tape ($97), labor ($75), and 
the loss in revenues while the trailer is being retrofitted ($144). 
Details about how the agency developed its estimates for the costs of 
retrofitting are presented later in this notice as well as in the 
FHWA's preliminary regulatory evaluation (PRE). The FHWA notes that it 
is reasonable to expect that some motor carriers may be able to 
retrofit their trailers for less than the FHWA's estimates while others 
may end up spending more. However, the FHWA believes it is very 
unlikely that motor carriers would have to spend $1,400, as the ATA 
estimates.
    Based upon the information presented by the commenters, the FHWA 
does not believe that the amount of cleaning and repairs required to 
comply with the proposed requirements would reach the levels estimated 
by the ATA (i.e., approximately $700 for rubrail repair/replacement, 
and approximately $400 for cleaning grease and oxidation off the 
surfaces of the trailer). The ATA's estimate, when compared to the 
estimates of other commenters, appears to be a worst case scenario for 
a vehicle that has not been cleaned on a regular basis, or the physical 
appearance of which has not been maintained. The agency believes this 
worst case scenario would only be applicable to a small fraction of the 
flatbed and heavy hauler trailers that would be subject to this 
rulemaking. The FHWA believes that most motor carriers have adequately 
maintained their vehicles and that $1,100 in repairs would not be 
necessary to comply with the proposed requirements.
    The FHWA requests additional comments from motor carriers that 
believe their costs for retrofitting a trailer would greatly exceed the 
agency's estimates. Commenters are encouraged to provide detailed 
information on how their estimates were prepared, especially if the 
estimates are based upon first-hand experience retrofitting vehicles in 
their fleet.

Summary of the FHWA's Rationale for Issuing the NPRM

    The FHWA recognizes the technical and economic concerns of 
commenters opposed to a retrofitting requirement. However, based upon 
the information currently available, the agency believes that 
retrofitting of trailers with conspicuity treatments will provide 
significant safety benefits. Retrofitting appears to be cost-effective 
and technically feasible.
    The FHWA has completed a preliminary regulatory evaluation (PRE) 
for this rulemaking. A copy of the PRE is included in the docket. Three 
key issues were considered in determining whether to issue a notice of 
proposed rulemaking.
    The first issue is the cost of installing retroreflective material 
on older vehicles. The surfaces of many of the older trailers will 
require preparation (e.g., removal of oxidation, pre-treating, etc.) to 
ensure that the retroreflective tape adheres. In many cases the trailer 
will have to be removed from revenue service to complete the retrofit. 
Therefore, the FHWA is proposing a two-year phase-in period to allow 
motor carriers to complete the retrofitting at routine maintenance 
intervals. The FHWA estimates that the total cost (conspicuity 
material, labor, and the loss in revenues) for retrofitting a 45-53 
foot trailer would be approximately $316, with the cost for shorter 
trailers being less.
    The second issue is the voluntary use of retroreflective material 
on older trailers by certain fleets. A large number of fleets have been 
using conspicuity treatments on their trailers since the mid-1980's. 
However, many of the color schemes as well as the levels of 
reflectivity of the tape used on the older trailers differ from the 
NHTSA requirements for trailers manufactured on or after December 1, 
1993. If these motor carriers are required to replace the 
retroreflective materials that they voluntarily installed to improve 
safety, it would have the effect of penalizing motor carriers that 
demonstrated an extra level of safety consciousness. This would have 
the unintended effect of discouraging motor carriers from exploring 
innovative approaches to improving safety. With this in mind, the FHWA 
is proposing to allow these motor carriers 10 years to remove 
alternative conspicuity treatments applied to trailers manufactured 
before December 1, 1993.
    The third issue concerns the projected safety benefits of trailer 
conspicuity material that meets the NHTSA requirement. The NHTSA 
estimates that retroreflective tape could lead to a 25 percent 
reduction in rear end collisions and a 15 percent reduction in side 
impact collisions. From data available at the time of the NHTSA's final 
rule implementing conspicuity enhancements, tractor-trailer 
combinations were involved annually in about 11,000 accidents in which 
they were struck in the side or rear at night. Within this group of 
accidents, about 8,700 injuries and about 540 fatalities occurred. The 
NHTSA indicated that the conspicuity requirements, when fully 
implemented, are expected to prevent, annually, 2,113 of these 
accidents. The NHTSA estimated 1,315 fewer injuries and about 80 fewer 
fatalities would occur.
    In 1995 there were an estimated 16,674 nighttime accidents in which 
one commercial motor vehicle and one passenger vehicle were involved. 
All of these accidents resulted in a fatality, injury, or one of the 
vehicles incurring damage severe enough to require that the vehicle be 
towed from the accident scene. In 4,734 of these accidents, a passenger 
vehicle rear-ended or struck the side of a combination vehicle--a truck 
or truck-tractor, towing one or more trailers. It is estimated that 
more than 4,200 injuries occurred in these nighttime accidents.
    Looking specifically at fatal accidents, the NHTSA's Fatality 
Analysis Reporting System (FARS) data for 1995 indicate there were 
2,587 fatal accidents involving one commercial motor vehicle and one 
passenger vehicle. In 1,819 of these fatal accidents, the commercial 
motor vehicle was a combination vehicle. Of the 1,819 fatal accidents 
between a passenger vehicle and a combination vehicle, 200 cases were 
nighttime accidents in which the passenger vehicle rear-ended the 
trailer. The result was 224 fatalities (compared to 54 fatalities for 
50 nighttime accidents in which a passenger vehicle rear-ended a 
single-unit commercial motor vehicle). Nighttime accidents in

[[Page 33623]]

which the passenger vehicle struck the side of a trailer at an angle 
accounted for 115 incidents resulting in a total of 136 fatalities.

FHWA Estimates of the Costs and Benefits

    The FHWA has completed a preliminary regulatory evaluation 
comparing the projected safety benefits of a retrofitting requirement 
to the potential economic impact on the motor carrier industry. The 
following discussion summarizes the FHWA's analysis. A copy of the 
complete PRE is available for review in the docket.
    Based upon an analysis and comparison of the estimated costs and 
benefits of two-, three-, and five-year phase-in period options for a 
retrofitting requirement, the FHWA is proposing a two-year phase-in 
period for trailers that are not currently equipped with 
retroreflective sheeting. The FHWA estimates that the total costs for 
motor carriers to comply with the proposed requirements within a two-
year period would be $339 million, with the safety benefits (fatalities 
and injuries prevented) and economic benefits (property damage 
prevented) totaling $741 million. The FHWA estimates that this 
rulemaking would apply to approximately 1.4 million trailers if a 2-
year phase-in period were allowed (fewer trailers would be subject to 
the rulemaking if the 3-or 5-year phase-in periods were chosen). It is 
estimated that the rulemaking would, over a ten year period, prevent 
258 fatalities and 4,224 injuries associated with passenger cars 
colliding with trailers. In addition, this rule would prevent 
approximately 5,300 property damage only (PDO) accidents. The FHWA 
believes the projected safety benefits (in terms of accidents prevented 
and lives saved) outweigh the economic burden on the motor carrier 
industry. The following section provides a detailed discussion of how 
the FHWA prepared its estimates of the costs and benefits.
    The costs are considered one-time costs in that the conspicuity 
treatments will not need to be replaced during the remaining years of 
the useful service lives of the trailers that would be subject to the 
retrofitting requirement. The estimates for the benefits are the total 
expected benefits over the remaining years of the useful service lives 
of the trailers that would be retrofitted.
    Generally, there are three types of costs associated with 
retrofitting: the tape or reflex reflectors; the labor required to 
apply it; and, the opportunity cost of withdrawing the trailer from 
revenue-producing service. The following describes how the FHWA arrived 
at its estimates for the different types of costs and benefits.

Costs for Retroreflective Sheeting

    The NHTSA's preliminary regulatory evaluation used a tape cost of 
$.675 per linear foot for 50 mm (2-inch) wide tape. Based upon comments 
to the NHTSA rulemaking and further analysis, the NHTSA adjusted this 
figure to $1.29 in its final regulatory evaluation.
    The amount of tape required to retrofit a trailer varies with its 
size. For example, a 28-foot trailer would need 47 feet of tape: 14 
feet of material per side (because the rule would require that at least 
50 percent of the length of the trailer must be covered); an 8-foot 
strip along the bottom of the rear; 2 pairs of one foot strips for the 
outline of the upper rear, and approximately seven feet of material for 
the underride guard. (The FHWA notes that the estimated cost for 
retrofitting a rear underride guard that does not require complete 
refurbishment was included in the PRE although the FHWA is not 
proposing that carriers be required to install conspicuity materials on 
the underride guard.) By contrast a 48-foot trailer would require the 
use of an additional 10 feet of material for each side of the trailer 
or a total of 67 feet of tape.
    The NHTSA estimated that the total cost for the tape would be 
$60.84 for 28-foot trailers, $77.67 for 40-42 foot trailers, and $86.73 
for 45-53 foot trailers. The FHWA adjusted these figures to account for 
inflation between 1992, when the NHTSA's final regulatory evaluation 
was completed, and 1995. This adjustment, based upon the producer price 
index for industrial commodities (See Table b63 from the Economic 
Report of the President, 1996, ISBN 0-16-048501-0), increased the costs 
to $65.04 for 28-foot trailers, $83.03 for 40-42 foot trailers, and 
$92.71 for 45-53 foot trailers.
    The FHWA made an additional adjustment to take into consideration 
the comments to the ANPRM. The additional adjustment increased the cost 
by approximately $4.50 per trailer. The total estimated tape cost is 
$69.54 for 28-foot trailers, $87.53 for 40-42 foot trailers, and $97.21 
for 45-53 foot trailers.

Cost for Labor To Apply the Retroreflective Sheeting to the Trailers

    The FHWA used an average wage of $25 per hour, including fringe 
benefits, for calculating labor costs. The NHTSA estimated that it 
takes 30 minutes to install tape on a trailer. While this is a 
reasonable estimate for factory installed tape, the FHWA recognizes 
that it would take longer to retrofit a trailer. This assumption is 
supported by the docket comments. Trailers will generally have to be 
prepared and cleaned for the conspicuity treatment. Trailers which have 
holes and other damage may require more extensive repairs.
    The comments to the docket, as well as observations by FHWA staff 
during a 1994 site visit to a Roadway terminal (documentation of the 
visit is included in the docket file), indicate that the amount of time 
required to retrofit a trailer will vary significantly with trailer 
type and condition. For example, trailers with outer posts may require 
more extensive work than trailers with smooth exterior surfaces.
    Taking into account these considerations, the FHWA estimates that 
the retrofitting process for the average 28-foot trailer would take 2 
hours to complete. The agency estimates that the time required to 
retrofit 40-42 foot and 45-53 foot trailers would be 2.5 and 3 hours, 
respectively. The FHWA's preliminary estimates of labor costs are $50, 
$62.50, and $75 for the 28-, 40-42, and 45-53 foot trailers, 
respectively.

Opportunity Costs

    Estimating the value of revenue that cannot be generated while the 
trailer is being retrofitted is difficult because of the variety of 
trailer types, the variety of motor carrier operations and the rates 
that are charged, and the overall manner in which some trailers are 
used--being left idle at the motor carrier's terminals for periods of 
time that may be as short as a few hours to several days.
    The FHWA believes that it is more likely than not that a large 
percentage of trailers would have to undergo routine repair and/or 
maintenance at some point during the two-year phase-in period. 
Retrofitting trailers at the same time that repairs or maintenance are 
performed would result in negligible opportunity cost since the 
trailers would not be generating revenue in any case. Even the trailers 
that do not require routine repairs may be idle at some point during 
the phase-in period and could be retrofitted at minimal opportunity 
cost. However, the less time motor carriers have to comply with the 
retrofitting requirement, the less likely it is that they could take 
advantage of the routine repair or maintenance cycles or periods when 
the vehicle would be idle. This means that the opportunity cost 
increases as the phase-in period decreases.
    The FHWA does not have the detailed information required to develop 
a comprehensive model of opportunity costs. Therefore, the agency 
constructed a simple model which relates the costs

[[Page 33624]]

to the logarithm of the phase-in period. With a five-year period, the 
estimated opportunity cost per trailer would be $62, while the cost for 
a three-year phase-in period would be $91. The opportunity costs for 
two-year phase-in period would be $144.

Number of Trailers

    The FHWA estimates that there are 2.1 million trailers and semi-
trailers in operation as of January 1994. This estimate is based 
largely upon the U.S. Bureau of the Census trailer production data.
    The NHTSA in its final regulatory evaluation estimated that the 
average trailer has a usable service life of approximately 14 years. 
Commenters to both the NHTSA's NPRM and the FHWA's ANPRM generally 
agreed with this estimate. Tank trailers are both more expensive and 
more durable than other types of trailers and are believed to have a 
useful life of approximately 20 years.
    The FHWA used data from the Truck Trailer Manufacturers Association 
(TTMA) and the U.S. Bureau of the Census concerning the number of 
trailers sold in the United States. This data was compiled by trailer 
type and year for the previous 25 years. The TTMA data was available 
through 1993. The NHTSA estimated that 170,000 new trailers would be 
sold annually. The FHWA used the NHTSA estimate for 1994 and 1995.
    Given the trailer sales data and the average trailer useful service 
life estimates, the FHWA determined that the number of trailers in use 
at the end of 1995 was approximately 2.12 million. However, not all of 
these trailers would be affected by this regulation since some of the 
vehicles would reach the end of their service life before the end of 
the two-year phase-in period for compliance with the final rule. In 
addition, some of these trailers already have conspicuity markings 
(although the markings may not be in conformance with the NHTSA 
specifications) which would enable motor carriers to continue operating 
these vehicles during the proposed 10-year transition period for 
replacing non-conforming conspicuity treatments. The 10-year transition 
period coincides with the end of the useful service life of most of the 
older trailers currently in use, with the exception of tank trailers. 
The FHWA believes that the number of trailers that will have to be 
retrofitted under the two-year option would be 1,373,000. The number of 
trailers that would be retrofitted if the three-year option was chosen 
would be 1,202,000 while the number that would be covered under the 
five-year option would be 834,000.
    With regard to the number of trailers that would have to have non-
conforming conspicuity treatments replaced at the end of the 10-year 
transition period, the FHWA estimates most of these vehicles will be 
tank trailers since the useful service life of this type of trailer is 
approximately 20 years. Tank/dry bulk trailers are approximately 2 
percent of the fleet population and tank/liquids or gas trailers 
represent 7.4 percent of the population of trailers (1992 Truck 
Inventory and Use Survey, U.S. Census Bureau). Applying these estimates 
to the 1995 data, there are approximately 199,280 tank trailers (all 
types). It is believed that only a fraction of these trailers have been 
voluntarily retrofitted with non-conforming conspicuity treatments. If 
20 percent of these trailers would be covered by a requirement to 
replace non-conforming treatments, the agency estimates less than 
40,000 tank trailers would have to have non-conforming conspicuity 
treatments replaced before they reach the end of their useful service 
life.

Total Costs for Retrofitting Trailers

    Based upon the information currently available concerning the costs 
for retroreflective sheeting, labor, and opportunity costs, and the 
estimates of the number of trailers for which motor carriers would be 
required to take some type of actions to comply with the proposed 
requirements, the FHWA believes the total costs for retrofitting under 
the 2-year option would be $339 million. The costs for the 3-year 
option would be $238 million while the costs for the 5-year option 
would be $138 million. It should be noted that opportunity cost makes 
up 45 percent of the total cost for the 2-year option, and decreases to 
only 27 percent of the costs for the 5-year phase in period. These 
estimates are for a 10-year period discounted at a 7-percent rate.

Benefits of a Retrofitting Requirement

    The estimated benefits of this rulemaking are a reduction in the 
number of fatalities, injuries, and property damage only (PDO) 
accidents caused by nighttime accidents in which a passenger car 
collides with the rear or side of a trailer. The FHWA estimates that 
over a 10-year period, a total of 258 fatalities and 4,224 injuries 
would be prevented because of this rule. The following table shows the 
number of accidents and injuries prevented. The net present value of 
this level of accident reduction is $741 million.
    The reduction in fatalities comprises the largest component of 
benefits, at over 65 percent of the total. The second largest component 
is maximum adjusted injury scale (MAIS) 3 accidents, which constitute 
10.5 percent of the total benefits.<SUP>2</SUP>
---------------------------------------------------------------------------

    \2\ The Abbreviated Injury Scale (AIS) was developed by the 
American Medical Association and the American Association for 
Automotive Medicine to measure the threat to life of an accident. 
The MAIS refers to the maximum (most severe) injury sustained in a 
crash. The scale ranges from 0 for no injury to 6 for a fatality. A 
more detailed discussion of MAIS, including examples of the types of 
injuries that are included in each of the levels, is included in the 
FHWA's preliminary regulatory evaluation (PRE) for this rulemaking. 
A copy of the PRE is contained in FHWA Docket No. MC-94-1.

               Distribution of Dollar Amounts of Benefits               
------------------------------------------------------------------------
                                                               Percent  
                   Severity                        Number       total   
                                                               benefits 
------------------------------------------------------------------------
PDO...........................................        5,379          5.2
MAIS 1........................................        3,282            3
MAIS 2........................................          615          6.6
MAIS 3........................................          265         10.5
MAIS 4........................................           40          4.1
MAIS 5........................................           22          4.6
Fatality......................................          258           66
------------------------------------------------------------------------

    Benefits are spread unevenly over the 10-year analysis period. 
Benefits are expected to peak two years after the effective date of the 
final rule, after which there is a slow decline. Two years after the 
effective date of the final rule, all trailers covered by the 
retrofitting requirement would have conspicuity treatments. As the 
population of pre-1993 trailers decreases, the benefits of the 
retrofitting rule would decline. This pattern holds for both discounted 
and non-discounted dollars as well as for accidents. By the year 2000, 
all trailers would be required to be equipped with conspicuity 
treatments, and nighttime accidents would fall by 15 percent (for 
retrofitted trailers still in use).

[[Page 33625]]



                          Summary of Costs and Benefits of Conspicuity Retrofit Options                         
----------------------------------------------------------------------------------------------------------------
            Options for retrofitting phase-in period                  2 years         3 years         5 years   
----------------------------------------------------------------------------------------------------------------
Estimated number of trailers that would have to be retrofitted..       1,373,000       1,202,000         834,000
Estimated benefits ($millions)..................................             741             634             425
Estimated costs ($millions).....................................             339             238             138
Estimated Net Benefit ($millions)...............................             402             396             288
Benefit-to-cost ratio...........................................             2.2             2.7             3.1
Fatalities prevented (during a 10-year period)..................             258             226             160
Injuries prevented (during a 10-year period)....................           4,224           3,701           2,615
----------------------------------------------------------------------------------------------------------------

    The benefit of this regulation results from an expected 15 percent 
reduction in nighttime side and rear crashes into trailers, and an 
expected 19 percent reduction in the severity of certain property 
damage only accidents. These estimates come from the NHTSA, which 
performed extensive fleet evaluations in the 1980's. According to the 
NHTSA, these kinds of accidents result in an average of 536 fatalities 
annually, and almost 8,800 injuries, most of which are minor. This 
proposal would prevent between 258 fatalities over a 10-year period.
    The monetary value of these benefits range from over $741 million 
for the 2-year phase in to $425 for the 5 year phase in. Under all of 
the phase-in options the ratio of the benefits to costs exceeds two, 
with the ratio increasing as the phase-in period is extended. More 
importantly, all three scenarios yield net benefits (benefits minus 
costs) in excess of $280 million, with net benefits increasing as the 
phase-in period is shortened.
    Two issues which could affect these results are the number of 
trailers already equipped with conspicuity marking, and the safety 
impact of existing markings which are not in compliance with the NHTSA 
specifications. The FHWA estimates, based on non-random observation and 
anecdotal information, that approximately 20 percent of trailers 
manufactured prior to December 1, 1993, have some form of conspicuity 
treatment. Although the FHWA does not have data concerning the 
effectiveness of the alternate conspicuity treatments that are 
currently in use on trailers manufactured prior to December 1, 1993, 
the agency believes, based upon the NHTSA's research, that many of the 
alternate retroreflective sheeting treatments improve conspicuity and 
provide potential safety benefits. Some form of conspicuity treatment 
is better than no conspicuity treatment, with the most effective form 
of conspicuity treatment being a system that conforms to the NHTSA 
standard. The FHWA requests comments from motor carriers using 
conspicuity treatments that differ from that required by the NHTSA. 
Specifically, the FHWA requests information concerning a reduction in 
the number of accidents in which passenger cars collide with the sides 
of rear of trailers.

Discussion of the Proposed Regulatory Language

    The FHWA proposes to amend the FMCSRs by adding a new Sec. 393.13, 
Retroreflective sheeting and reflex reflectors, requirements for semi-
trailers and trailers manufactured before December 1, 1993. This 
section would be added to subpart B of part 393, Lighting Devices, 
Reflectors, and Electrical Equipment. Paragraph (a) would provide the 
applicability for Sec. 393.13. The proposed requirements would not 
apply to trailers that are manufactured exclusively for use as offices 
or dwellings because these types of trailers are rarely transported at 
night. In addition, the NHTSA conspicuity requirements do not apply to 
this type of trailer. The FHWA is proposing to exclude pole trailers 
(as defined in Sec. 390.5) from the conspicuity requirements because 
these trailers generally do not have side and rear surfaces to which 
conspicuity treatments could be applied in a cost-effective manner. The 
agency notes that Sec. 393.11 does require lamps and reflectors on pole 
trailers and requests comments on whether retrofitting of conspicuity 
materials should be required on all pole trailers, including those that 
are currently manufactured without any type of conspicuity treatment.
    In addition, the FHWA is proposing to exclude trailers that are 
being towed in a driveaway-towaway operation (as defined in 
Sec. 390.5). This would not be a blanket exception for certain types of 
trailers, but an exception that would cover certain movements of 
trailers. Examples of the types of transportation that would be covered 
include movements between a dealership or other entity selling or 
leasing the trailer and a purchaser or lessee, to a maintenance/repair 
facility for the repair of disabling damage (as defined in Sec. 390.5).
    Paragraph (b) would encourage motor carriers to retrofit their 
trailers with a conspicuity system that meets all of the requirements 
applicable to trailers manufactured on or after December 1, 1993, but 
allow the use of alternate color or color combination of 
retroreflective sheeting or reflex reflectors during a 10-year 
transition period. At the end of the 10-year period, all trailers would 
be required to have conspicuity treatments identical to the NHTSA 
requirements. Although the FHWA is proposing to allow motor carriers a 
certain amount of flexibility with regard to the colors of 
retroreflective tape or reflex reflectors, the locations for the 
conspicuity treatments would be required to conform to those specified 
in the NHTSA regulations.
    Paragraph (c) would cover the locations for retroreflective 
sheeting, excluding the use of the reflective material on the rear 
underride device. Paragraph (d) would specify the locations for the 
arrays of reflex reflectors, excluding the use of reflectors on the 
rear underride device. The FHWA recognizes the concerns that motor 
carriers have about conspicuity treatments on the rear impact guards or 
rear underride devices. Consequently, the agency has tentatively 
determined that motor carriers should not be required to apply 
conspicuity material to the rear underride device. However, the FHWA 
specifically requests comments from motor carriers as to whether the 
underride device should be excluded as a required location for 
reflective material.
    With regard to the effective date for the retrofitting 
requirements, the FHWA is proposing that motor carriers be allowed 2 
years from the effective date of the final rule, to retrofit trailers 
operated in interstate commerce. Motor carriers would be allowed 10 
years from the effective date of the final rule to replace non-
conforming conspicuity treatments with ones that meet the NHTSA 
requirements for newly manufactured trailers.

[[Page 33626]]

Applicability to Canadian and Mexican Vehicles

    The FHWA is not proposing an exemption for trailers operated in the 
United States by Canada- and Mexico-based motor carriers. Although the 
Federal governments of Canada and Mexico have not indicated whether 
they intend to require retrofitting of the trailers operating in their 
countries, the FHWA believes that it is appropriate to require 
retrofitting of conspicuity treatments on foreign-based trailers 
manufactured prior to the December 1, 1993, if those vehicles are 
operated within the United States. This preliminary decision is 
consistent with the applicability of the requirements of parts 393 and 
396 of the FMCSRs and ensures that all commercial motor vehicles 
operating in interstate or foreign commerce within the United States 
are required to meet the same safety standards. The FHWA specifically 
requests comments from Canada- and Mexico-based motor carriers.

Rulemaking Analysis and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket room at the above address. Comments 
received after the comment closing date will be filed in the docket and 
will be considered to the extent practicable, but the FHWA may adopt a 
final rule at any time after the close of the comment period. In 
addition to late comments, the FHWA will also continue to file in the 
docket relevant information that becomes available after the comment 
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 a significant 
regulatory action within the meaning of Executive Order 12866 and 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. The FHWA has prepared a preliminary 
evaluation of the economic impact the proposed regulatory changes would 
have on the motor carrier industry. A copy of the preliminary 
regulatory evaluation is included in the docket file.
    The FHWA estimates that the total costs for motor carriers to 
comply with the proposed requirements within a 2-year period would be 
$339 million, with the safety and economic benefits totaling $741 
million. The FHWA estimates that this rulemaking would apply to 
approximately 1.4 million trailers. It is estimated that the rulemaking 
would, over a ten year period, prevent 258 fatalities and 4,224 
injuries associated with passenger cars colliding with trailers. In 
addition, this rule would prevent approximately 5,300 property damage 
only (PDO) accidents.
    The costs are considered one-time costs in that the conspicuity 
treatments will not need to be replaced during the remaining years of 
the useful service lives of the trailers that would be subject to the 
retrofitting requirement. The estimates for the benefits are the total 
expected benefits over the remaining years of useful service lives of 
the trailers that would be retrofitted. A copy of the FHWA's 
preliminary regulatory evaluation has been placed in the docket.
    Based upon the information received in response to this NPRM, the 
FHWA will carefully consider the costs and benefits associated with 
establishing a conspicuity retrofitting requirement. The FHWA requests 
comments, information, and data concerning the economic impact of 
establishing retrofitting requirements.

Regulatory Flexibility Act

    The FHWA has evaluated the effects of the proposed regulatory 
changes on small entities. A copy of the Regulatory Flexibility 
Analysis is provided in the docket file. Generally, the costs per 
trailer for retrofitting should be comparable, but not necessarily 
identical, for both large motor carriers and small motor carriers. For 
example, large carriers will be able to obtain discounts when ordering 
conspicuity materials in bulk. The costs for the retroreflective tape 
needed to comply with the proposed requirement is $69.54 for 28 foot 
trailers, $87.53 for 40-42 foot trailers, and $97.21 for 45-53 foot 
trailers. The FHWA's preliminary estimates of labor costs are $50, 
$62.50, and $75 for the 28-, 40-42, and 45-53 foot trailers, 
respectively. The FHWA believes the opportunity cost would be 
approximately $144 per trailer. Therefore, the costs per trailer for 
small entities would be $263 for 28-foot trailers, $293 for 40-42 foot 
trailers, $316 for 45-53 foot trailers. The costs would only apply to 
small entities that have trailers that were manufactured before 
December 1, 1993, and have not already been retrofitted with a 
conspicuity system that would satisfy the proposed requirements. 
Furthermore, the costs would only be applicable if the small entities 
intend to continue to operate these older trailers after the proposed 
2-year phase-in period.
    As of September 1996, the FHWA estimates that there were 
approximately 382,128 interstate motor carriers. Of these carriers, 
136,360 own, term-lease or trip-lease 6 or fewer trailers (68,405 have 
1 trailer, 45,770 have 2-3 trailers, and 22,185 have 4-6 trailers). The 
number of motor carriers that own, term-lease or trip-lease more than 6 
trailers but fewer than 21 is 21,793 (6,658 carriers have 7-8 trailers, 
6,197 have 9-11 trailers, 3,887 carriers have 12-14 trailers, 2,779 
carriers have 15-17 trailers, and 2,272 carriers have 18-20 trailers). 
If only those motor carriers that own, term-lease, or trip-lease 20 or 
fewer trailers are considered small entities, this rulemaking could 
have an economic impact on up to 158,153 small entities.
    The economic impact on each of the motor carriers would vary 
depending on the number of trailers that the carrier would be 
responsible for retrofitting by the end of the 2-year phase-in period, 
and the size of those trailers. If, for example, the carrier only 
operates one 45-53 foot trailer, the total economic impact would be 
$316. If the carrier operates 20 such trailers that have to be 
retrofitted, the total economic impact would be $ 6,320.
    The Small Business Administration (SBA), which oversees agencies' 
compliance with the Regulatory Flexibility Act, has published 
guidelines to classify small business. The SBA has indicated that for 
entities engaged in motor freight transportation and warehousing, small 
businesses are those with $18.5 million or fewer dollars in annual 
receipts. Therefore, if the motor carrier described in the preceding 
example is a private motor carrier with its principal business being 
something other than transportation, and operates 20, 45-53 foot 
trailers and has annual receipts of $18.5 million, the total economic 
impact would be less than one-tenth of one percent of the private motor 
carrier's annual receipts ($6,320/$18.5 million). If this carrier 
operated 100 trailers and had annual receipts of $18.5 million, the 
economic impact would be approximately two-tenths of one percent of the 
carrier's annual receipts ($31,600/$18.5 million).
    Based on its preliminary regulatory flexibility analysis summarized 
above, the FHWA believes that this proposed rule, if adopted, would 
affect a substantial number of small entities, but would not have a 
significant impact on these entities. Based upon the information 
received in response to the NPRM, the FHWA, in compliance with

[[Page 33627]]

the Regulatory Flexibility Act (Pub. L. 96-354; 5 U.S.C. 601-612), will 
further consider the economic impacts of these potential changes on 
small entities. The FHWA requests comments, information, and data on 
these impacts.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this rulemaking does not have sufficient Federalism implications 
to warrant the preparation of a Federalism assessment. Nothing in this 
document directly preempts any State law or regulation.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this program.

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement for the purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501 et seq.

National Environmental Policy Act

    The agency has analyzed this rulemaking for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
has determined that this action would not have any effect on the 
quality of the environment.

Unfunded Mandates Reform Act

    This rule does not impose any unfunded mandates on State, local, or 
tribal governments as defined by the Unfunded Mandates Reform Act of 
1995 (2 U.S.C. 1532-1538). However, this rule would likely result in a 
Federal mandate requiring expenditure by the private sector of $100 
million or more in any one year. Therefore, the FHWA has prepared a 
separate written statement incorporating various assessments, 
estimates, and descriptions that are delineated in the Act. A copy of 
the FHWA's Regulatory Accountability and Reform Analyses is included in 
the docket.

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 action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 393

    Highway safety, Motor carriers, Motor vehicle safety.

    Issued on: June 8, 1998.
Kenneth R. Wykle,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend title 
49, Code of Federal Regulations, chapter III, as follows:

PART 393--[AMENDED]

    1. The authority citation for part 393 continues to read as 
follows:

    Authority: Section 1041(b) of Pub. L. 102-240, 105 Stat. 1914, 
1993 (1991); 49 U.S.C. 31136 and 31502; 49 CFR 1.48.

    2. Section 393.13 is added to read as follows:


Sec. 393.13.  Retroreflective sheeting and reflex reflectors, 
requirements for semi-trailers and trailers manufactured before 
December 1, 1993.

    (a) Applicability. All trailers and semi-trailers manufactured 
prior to December 1, 1993, which have an overall width of 2,032 mm (80 
inches) or more and a gross vehicle weight rating of 4,536 kg (10,001 
pounds) or more, except trailers that are manufactured exclusively for 
use as offices or dwellings and pole trailers (as defined in 
Sec. 390.5) and trailers transported in a driveaway-towaway operation, 
must be equipped with retroreflective sheeting or an array of reflex 
reflectors that meet the requirements of this section. Motor carriers 
have until [two years from the effective date of the final rule] to 
comply with the requirements of this section.
    (b) Retroreflective sheeting and reflex reflectors. Motor carriers 
are encouraged to retrofit their trailers with a conspicuity system 
that meets all of the requirements applicable to trailers manufactured 
on or after December 1, 1993, including the use of retroreflective 
sheeting or reflex reflectors in a red and white pattern (see Federal 
Motor Vehicle Safety Standard No. 108 (49 CFR 571.108), S5.7, 
Conspicuity systems). Motor carriers which do not retrofit their 
trailers to meet the requirements of FMVSS No. 108, for example by 
using an alternative color pattern, must comply with the remainder of 
this paragraph and with paragraph (c) or (d) of this section. 
Retroreflective sheeting or reflex reflectors in colors or color 
combinations other than red and white may be used on the sides or lower 
rear area of the semi-trailer or trailer until [ten years from the 
effective date of the final rule]. The alternate color or color 
combination must be uniform along the sides and lower rear area of the 
trailer. The retroreflective sheeting or reflex reflectors on the upper 
rear area of the trailer must be white and conform to the requirements 
of FMVSS No. 108 (S5.7). Red retroreflective sheeting or reflex 
reflectors shall not be used along the sides of the trailer unless it 
is used as part of a red and white pattern. Retroreflective sheeting 
shall have a width of at least 50 mm (2 inches).
    (c) Locations for retroreflective sheeting.--(1) Sides. 
Retroreflective sheeting shall be applied to each side of the trailer 
or semi-trailer. Each strip of retroreflective sheeting shall be 
positioned as horizontally as practicable, beginning and ending as 
close to the front and rear as practicable. The strip need not be 
continuous but the sum of the length of all of the segments shall be at 
least half of the length of the trailer and the spaces between the 
segments of the strip shall be distributed as evenly as practicable. 
The centerline for each array of reflex reflectors shall be between 375 
mm (15 inches) and 1,525 mm (60 inches) above the road surface when 
measured with the trailer empty or unladen, or as close as practicable 
to this area. If necessary to clear rivet heads or other similar 
obstructions, 50 mm (2 inches) wide retroreflective sheeting may be 
separated into two 25 mm (1 inch) wide strips of the same length and 
color, separated by a space of not more than 25 mm (1 inch).
    (2) Lower rear area. The rear of each trailer and semi-trailer must 
be equipped with retroreflective sheeting. Each strip of 
retroreflective sheeting shall be positioned as horizontally as 
practicable, extending across the full width of the trailer, beginning 
and ending as close to the extreme edges as practicable. The centerline 
for each of the strips of retroreflective sheeting shall be between 375 
mm (15 inches) and 1,525 mm (60 inches) above the road surface when 
measured with the trailer empty or unladen, or as close as practicable 
to this area.
    (3) Upper rear area. Two pairs of white strips of retroreflective 
sheeting, each pair consisting of strips 300 mm (12 inches) long, must 
be positioned horizontally and vertically on the right and left upper 
corners of the rear of the body of each trailer and semi-trailer, as 
close as practicable to the top of the

[[Page 33628]]

trailer and as far apart as practicable. If the perimeter of the body, 
as viewed from the rear, is not square or rectangular, the strips may 
be applied along the perimeter, as close as practicable to the 
uppermost and outermost areas of the rear of the body on the left and 
right sides.
    (d) Locations for reflex reflectors.--(1) Sides. Reflex reflectors 
shall be applied to each side of the trailer or semi-trailer. Each 
array of reflex reflectors shall be positioned as horizontally as 
practicable, beginning and ending as close to the front and rear as 
practicable. The array need not be continuous but the sum of the length 
of all of the array segments shall be at least half of the length of 
the trailer and the spaces between the segments of the strip shall be 
distributed as evenly as practicable. The centerline for each array of 
reflex reflectors shall be between 375 mm (15 inches) and 1,525 mm (60 
inches) above the road surface when measured with the trailer empty or 
unladen, or as close as practicable to this area. The center of each 
reflector shall not be more than 100 mm (4 inches) from the center of 
each adjacent reflector in the segment of the array. If reflex 
reflectors are arranged in an alternating color pattern, the length of 
reflectors of the first color shall be as close as practicable to the 
length of the reflectors of the second color.
    (2) Lower rear area. The rear of each trailer and semi-trailer must 
be equipped with reflex reflectors. Each array of reflex reflectors 
shall be positioned as horizontally as practicable, extending across 
the full width of the trailer, beginning and ending as close to the 
extreme edges as practicable. The centerline for each array of reflex 
reflectors shall be between 375 mm (15 inches) and 1,525 mm (60 inches) 
above the road surface when measured with the trailer empty or unladen, 
or as close as practicable to this area. The center of each reflector 
shall not be more than 100 mm (4 inches) from the center of each 
adjacent reflector in the segment of the array.
    (3) Upper rear area. Two pairs of white reflex reflector arrays, 
each pair at least 300 mm (12 inches) long, must be positioned 
horizontally and vertically on the right and left upper corners of the 
rear of the body of each trailer and semi-trailer, as close as 
practicable to the top of the trailer and as far apart as practicable. 
If the perimeter of the body, as viewed from the rear, is not square or 
rectangular, the arrays may be applied along the perimeter, as close as 
practicable to the uppermost and outermost areas of the rear of the 
body on the left and right sides. The center of each reflector shall 
not be more than 100 mm (4 inches) from the center of each adjacent 
reflector in the segment of the array.

[FR Doc. 98-15622 Filed 6-18-98; 8:45 am]
BILLING CODE 4910-22-P