Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 33611

standards. 62 FR 38701. Given that the

revision of the PM–10 NAAQS, by itself,

constitutes a relaxation, the proposed

Fort Hall PM–10 nonattainment area

will be subject to the provisions of

section 172(e) of the Act. Section 172(e)

applies to prevent backsliding in those

areas that have not attained the preexisting PM–10 standard as of the date

the PM–10 NAAQS revision became

effective. As a result, the pre-existing

PM–10 standards will continue to apply

in the proposed Fort Hall PM–10

nonattainment area until EPA has

completed the rulemaking required

under section 172(e). See 62 FR 38701.

The rule promulgated under section

172(e) must require controls in the

proposed Fort Hall PM–10

nonattainment area that are ‘‘not less

stringent than the controls applicable to

areas designated nonattainment before

the relaxation of the 24-hour PM–10

standard.’’

III. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866 (58 FR 51735

(October 4, 1993)), EPA is required to

determine whether regulatory actions

are significant and therefore should be

subject to Office of Management and

Budget (OMB) review, economic

analysis, and the requirements of the

Executive Order. The Executive Order

defines a ‘‘significant regulatory action’’

as one that is likely to result in a rule

that may meet at least one of the four

criteria identified in section 3(f),

including, under paragraph (1), that the

rule may ‘‘have an annual effect on the

economy of $100 million or more or

adversely affect, in a material way, the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local or tribal governments or

communities.’’ The Agency has

determined that the finding of failure to

attain proposed today would result in

none of the effects identified in section

3(f). Under section 188(b)(2) of the CAA,

findings of failure to attain are based

upon air quality considerations and the

resulting reclassifications must occur by

operation of law in light of certain air

quality conditions. They do not, in and

of themselves, impose any new

requirements on any sectors of the

economy. In addition, because the

statutory requirements are clearly

defined with respect to the differently

classified areas, and because those

requirements are automatically triggered

by classifications that, in turn, are

triggered by air quality values, findings

of failure to attain and reclassification

cannot be said to impose a materially

adverse impact on State, local or tribal

governments or communities.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. 601 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

Findings of failure to attain and

reclassification of nonattainment areas

under section 188(b)(2) of the CAA do

not in and of themselves create any new

requirements. See Mid-Tex Electric

Cooperative, Inc. v. FERC, 773 F.2d 327

(D.C. Cir. 1985) (agency’s certification

need only consider rule’s impact on

entities subject to the requirements of

the rule). Instead, this rulemaking only

proposes to make a factual

determination, and does not propose to

directly regulate any entities. Therefore,

pursuant to 5 U.S.C. 605(b), I certify that

today’s proposed action does not have a

significant impact on a substantial

number of small entities within the

meaning of those terms for RFA

purposes.

C. Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act (UMRA), establishes

requirements for Federal agencies to

assess the effects of their regulatory

actions on State, local, and Tribal

governments and the private sector.

Under the UMRA, EPA must assess

whether various actions undertaken in

association with proposed or final

regulations include a Federal mandate

that may result in estimated costs of

$100 million or more to the private

sector, or to State, local or tribal

governments in the aggregate. EPA

believes, as discussed above, that the

proposed finding of failure to attain and

reclassification of the proposed Fort

Hall PM–10 nonattainment area are

factual determinations based upon air

quality considerations and must occur

by operation of law. Thus, the finding

does not constitute a Federal mandate,

as defined in section 101 of the UMRA,

because it does not impose an

enforceable duty on any entity.

D. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

Executive Order 13045 (62 FR 19885

(April 23, 1997)) applies to any rule that

EPA determines (1) ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) the environmental

health or safety risk addressed by the

rule has a disproportionate effect on

children. If the regulatory action meets

both criteria, the Agency must evaluate

the environmental health or safety

effects of the planned rule on children;

and explain why the planned regulation

is preferable to other potentially

effective and reasonably feasible

alternatives considered by the Agency.

This proposed action is not subject to

Executive Order 13045 because this is

not an economically significant

regulatory action as defined by

Executive Order 12866.

IV. Request for Public Comments

EPA is, by this document, proposing

a finding that the proposed Fort Hall

PM–10 nonattainment area failed to

attain the PM–10 standard by December

31, 1996, the applicable attainment date.

EPA solicits public comments on all

aspects of this proposal. Public

comments should be submitted to EPA

at the address identified above by July

20, 1998.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, Intergovernmental

relations, Particulate matter.

Authority: 42 U.S.C. 7401 et seq.

Dated: June 10, 1998.

Chuck Findley,

Acting Regional Administrator, Region 10.

[FR Doc. 98–16404 Filed 6–18–98; 8:45 am]

BILLING CODE 6560–50–P

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.

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
33612 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

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 http://

www.nara.gov/nara/fedreg and the

Government Printing Office’s database

at: http://www.access.gpo.gov/suldocs.

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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 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 §§ 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 § 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 tractorsemi-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.
33614 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 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-andafter 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
33616 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

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 phasein 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 redorange 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 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 Mexicobased 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.
33618 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

1Summary of Medium and Heavy Truck Crashes

in 1990, National Highway Traffic Safety

Administration, February 1993 (DOT HS 807 953).

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 singleunit 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 rearended 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 rearending 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).1

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.
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 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 laborintensive 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 waxbased 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°C (40°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:
33620 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

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 twoyear 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 nonconforming 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 [11⁄2 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 33621opinion among
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 33621

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
33622 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

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 vantype 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 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
33624 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

2The 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.

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 nonconforming 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 nonconforming 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 nonconforming 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.2

DISTRIBUTION OF DOLLAR AMOUNTS

OF BENEFITS

Severity Number

Percent

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).
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 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 § 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

§ 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

§ 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 costeffective manner. The agency notes that

§ 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 § 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 § 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.
33626 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

Applicability to Canadian and Mexican

Vehicles

The FHWA is not proposing an

exemption for trailers operated in the

United States by Canada- and Mexicobased 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 twotenths 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 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:

§ 393.13. Retroreflective sheeting and

reflex reflectors, requirements for semitrailers 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 § 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
33628 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

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 semitrailer, 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