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###### Department of Transportation

###### National Highway Traffic Safety Administration

          - 49 CFR Part 571
          - [Docket No. NHTSA-2009-0038]
          - RIN 2127-AK44

# AGENCY:

National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

# ACTION:

Interim final rule, request for comments.

# SUMMARY:

This document extends for six months a requirement that trailers with antilock brake systems be equipped with an external antilock malfunction indicator lamp. This requirement, which is included in the Federal motor vehicle safety standard that governs vehicles equipped with air brakes, is currently scheduled to sunset on March 1, 2009. As a result of this interim final rule, the sunset date is September 1, 2009. We are taking this action in connection with our consideration of a petition for rulemaking from the Commercial Vehicle Safety Alliance (CVSA) requesting that the requirement be made permanent. In a separate document, we are proposing a further extension of the requirement, to March 1, 2011. This interim final rule prevents the occurrence of a potential time gap for the vehicles that are subject to the requirement, should the agency ultimately decide to further extend the time period.

# DATES:

*Effective Date:*                         The amendment made in this rule is effective February 28, 2009.                    

*Comment Period:*                         You should submit your comments early enough to ensure that the Docket receives them not later than April 2, 2009. Comments may be combined with ones on the accompanying notice of proposed rulemaking, which is being published today using the same docket number.                    

# ADDRESSES:

You may submit comments to the docket number identified in the heading of this document by any of the following methods:
      -  Federal eRulemaking Portal:                          Go to                          http://www.regulations.gov . Follow the online instructions for submitting comments.                    
      -  Mail:                          Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.                    
      -  Hand Delivery or Courier:                          1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.                    
      -  Fax:                          202-493-2251.                    

*Instructions:*                         For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the                         **Supplementary Information**                         section of this document. Note that all comments received will be posted without change to                         *http://www.regulations.gov*, including any personal information provided. Please see the Privacy Act heading below.                    

*Privacy Act:*                         Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the                         **Federal Register**                         published on April 11, 2000 (65 FR 19477-78) or you may visit                         *http://DocketsInfo.dot.gov*.                    

*Docket:*                         For access to the docket to read background documents or comments received, go to                         *http://www.regulations.gov*, or the street address listed above. Follow the online instructions for accessing the dockets.                    

# FOR FURTHER INFORMATION CONTACT:

For non-legal issues, you may call Mr. George Soodoo, Office of Crash Avoidance Standards (Phone: 202-366-4931; FAX: 202-366-7002). For legal issues, you may call Mr. Ari Scott, Office of the Chief Counsel (Phone: 202-366-2992; FAX: 202-366-3820). You may send mail to these officials at: National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

# SUPPLEMENTARY INFORMATION:

## Table of Contents

I. Background

II. Agency Analysis

III. Interim Final Rule and Shortened Comment Period

IV. Public Participation

V. Rulemaking Analyses and Notices

## I. Background

                    The final rule requiring antilock brake systems (ABS) on truck tractors, other air-braked heavy vehicles including trailers, and hydraulic-braked trucks was published in the                     **Federal Register**                     (60 FR 13216) on March 10, 1995. As amended by that final rule, FMVSS No. 121,                     *Air Brake Systems*, required two separate in-cab ABS malfunction indicator lamps for each truck tractor, one for the tractor's ABS (effective                           ( print page 9174)                        March 1, 1997) and the other for the trailer's ABS (effective March 1, 2001). The final rule also required air-braked trailers to be equipped with an externally mounted ABS malfunction lamp (effective March 1, 1998) so that the driver of a non-ABS equipped tractor or a pre-2001 ABS-equipped tractor towing an ABS-equipped trailer would be alerted in the event of a malfunction in the trailer ABS.                

The requirement for the trailer-mounted ABS malfunction indicator lamp is currently scheduled to expire on March 1, 2009. The agency established this sunset date in light of the fact that, after this eight-year period, many of the pre-2001 tractors without the dedicated trailer ABS malfunction indicator lamp would no longer be in long-haul service. The agency based its decision on the belief that the typical tractor life was five to seven years, and therefore decided on an eight-year period for the external ABS malfunction indicator lamp requirement. We further stated our belief that there would be no need for a redundant ABS malfunction lamp mounted on the trailer after the vast majority of tractors were equipped with an in-cab ABS malfunction indicator lamp for the trailer.

As we have moved closer to the March 1, 2009 sunset date, the agency has received two petitions requesting that the requirement for the ABS malfunction indicator lamp be extended or made permanent. These petitions both came from the Commercial Vehicle Safety Alliance (CVSA), an international not-for-profit organization comprised of local, state, provincial, territorial and federal motor carrier safety officials and industry representatives from the United States, Canada, and Mexico. The petitioner raised two main issues in requesting a permanent extension. The first relates to ensuring that a driver or inspector can determine the operational status of a trailer ABS, if the trailer is not equipped with an external ABS lamp or the tractor is a pre-2001 tractor without the trailer in-cab ABS warning lamp. The second relates to the use of the external trailer ABS warning lamp for diagnostic purposes.

## II. Agency Analysis

                    In a separate notice of proposed rulemaking (NPRM) published in today's                     **Federal Register**                    , we are proposing to extend the trailer indicator lamp requirement to March 1, 2011. Such an extension would enable the agency to fully analyze CVSA's request that the requirement be made permanent.                

Given the imminence of the March 1, 2009 sunset date, our decision on the accompanying NPRM will not be made until after that date. To prevent the requirement from expiring in the meantime, potentially creating a confusing time gap in the trailer regulations should the agency ultimately decide to extend it, we decided to issue this interim final rule providing a six-month extension.

Accordingly, NHTSA is extending the sunset date by six months, from March 1, 2009 to September 1, 2009.

## III. Interim Final Rule and Shortened Comment Period

Given the imminence of the March 1, 2009 sunset date for the requirement that trailers with antilock brake systems be equipped with an external antilock malfunction indicator lamp, we find good cause for this interim final rule providing a six-month extension. Without this interim final rule, a confusing time gap in the vehicles subject to the requirement could potentially occur, should the agency ultimately decide to extend the requirement. Further, we find good cause to make it effective on February 28, 2009. We are accepting comments on this interim final rule.

Furthermore, given the short timeframe of this interim final rule, we are providing only a 30-day comment period. Because the full duration of the extension is only six months, and due to the fact that NHTSA will be considering the policy issues addressed in the outstanding petitions during this period in the context of the accompanying NPRM, we believe it is appropriate to provide a short comment period.

## IV. Public Participation

### How do I prepare and submit comments?

Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

                    Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under                     **ADDRESSES**                    .                

                    Comments may also be submitted to the docket electronically by logging onto the Docket Management System Web site at                     *http://www.regulations.gov*. Follow the online instructions for submitting comments.                

                    Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at                     *http://www.whitehouse.gov/​omb/​fedreg/​reproducible.html*. DOT's guidelines may be accessed at                     *http://dms.dot.gov*.                

### How can I be sure that my comments were received?

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

### How do I submit confidential business information?

                    If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under                     **FOR FURTHER INFORMATION CONTACT**                    . In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under                     **ADDRESSES**                    . When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR Part 512.)                

### Will the agency consider late comments?

                    We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under                     **DATES**                    . To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.                          ( print page 9175)    

### How can I read the comments submitted by other people?

                    You may read the comments received by Docket Management at the address given above under                     **ADDRESSES**                    . The hours of the Docket are indicated above in the same location. You may also see the comments on the Internet. To read the comments on the Internet, go to                     *http://www.regulations.gov*. Follow the online instructions for accessing the dockets.                

Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

## V. Rulemaking Analyses and Notices

### Executive Order 12866 and DOT Regulatory Policies and Procedures

This action was not reviewed by the Office of Management and Budget under E.O. 12866. The agency has considered the impact of this action under the Department of Transportation's regulatory policies and procedures (44 FR 11034; February 26, 1979), and has determined that it is not “significant” under them.

This document delays the sunset date of the antilock malfunction indicator lamp requirement from March 1, 2009 to September 1, 2009. Since trailers manufactured after March 1, 1998 have already been complying with the requirement and the agency is merely extending the requirement for an additional six months, the impact on costs is not significant. Not supplying a lamp could result in a trailer that could be made for a few dollars less. We estimate the costs to be so minimal that preparation of a full regulatory evaluation is not required.

### Regulatory Flexibility Act

                    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601*et seq.*, NHTSA has evaluated the effects of this action on small entities. I hereby certify that this interim final rule will not have a significant impact on a substantial number of small entities. This interim final rule merely extends for six months a sunset provision in FMVSS No. 121. No other changes are made in this document. Small organizations and small government units are not significantly affected since this action does not affect the price of new motor vehicles. Trailer manufacturers are not required to install new systems but rather continue to install the systems they are already installing for an additional six months.                

### Executive Order 13132 (Federalism)

NHTSA has examined today's interim final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rule does not have federalism implications because it does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Further, no consultation is needed to discuss the preemptive effect of today's rule. NHTSA's safety standards can have preemptive effect in at least two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: “When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.” 49 U.S.C. 30103(b)(1). It is this statutory command that unavoidably preempts State legislative and administrative law, not today's rulemaking, so consultation would be unnecessary.

                    Second, the Supreme Court has recognized the possibility of implied preemption: State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of a NHTSA safety standard. When such a conflict is discerned, the Supremacy Clause of the Constitution makes the State requirements unenforceable.                     *See Geier*                     v.                     *American Honda Motor Co.*, 529 U.S. 861 (2000). NHTSA has considered today's interim final rule and does not currently foresee any potential State requirements that might conflict with it. Without any conflict, there could not be any implied preemption.                

### Executive Order 12988 (Civil Justice Reform)

With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.

Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.

### Protection of Children From Environmental Health and Safety Risks

Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental, health, or safety risk that the agency has reason to believe may have 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 document is not expected to affect children and it is not an economically significant regulatory action under Executive Order 12866. Consequently, no further analysis is required under Executive Order 13045.

### Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. There is not any information collection requirement associated with this interim final rule.

### National Technology Transfer and Advancement Act

                    Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272) directs the agency to evaluate and use voluntary consensus standards in its regulatory activities                           ( print page 9176)                        unless doing so would be inconsistent with applicable law or is otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers. The NTTAA directs us to provide Congress (through OMB) with explanations when we decide not to use available and applicable voluntary consensus standards. There are no voluntary consensus standards developed by voluntary consensus standards bodies pertaining to this interim final rule.                

### Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). This interim final rule would not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually.

### National Environmental Policy Act

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.

### Executive Order 13211

Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any rulemaking that: (1) Is determined to be economically significant as defined under E.O. 12866, and is likely to have a significantly adverse effect on the supply of, distribution of, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This rulemaking is not subject to E.O. 13211.

### Plain Language

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language.                     *Application of the principles of plain language includes consideration of the following questions:*
    - Have we organized the material to suit the public's needs?
    - Are the requirements in the rule clearly stated?
    - Does the rule contain technical language or jargon that isn't clear?
    - Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
    - Would more (but shorter) sections be better?
    - Could we improve clarity by adding tables, lists, or diagrams?
    - What else could we do to make the rule easier to understand?

If you have any responses to these questions, please include them in your comments on this proposal.

### Regulatory Identifier Number (RIN)

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

### Privacy Act

                    Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the                     **Federal Register**                     published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit                     *http://www.regulations.gov*.                

# List of Subjects in 49 CFR Part 571

      - Imports
      - Motor vehicle safety
      - Motor vehicles, and Tires

In consideration of the foregoing, NHTSA is amending 49 CFR part 571 as set forth below.

# PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS

1. The authority citation for part 571 continues to read as follows: 

Authority:49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50.

2. Section 571.121 is amended by revising S5.2.3.3(a) to read as follows: 

§ 571.121

* * * * *

                            S5.2.3.3                             *Antilock malfunction indicator.*

(a) In addition to the requirements of S5.2.3.2, each trailer and trailer converter dolly manufactured on or after March 1, 1998, and before September 1, 2009, shall be equipped with an external antilock malfunction indicator lamp that meets the requirements of S5.2.3.3(b) through (d).

* * * * *

Issued: February 26, 2009.

Ronald L. Medford,

Acting Deputy Administrator.

[FR Doc. E9-4492 Filed 2-27-09; 11:15 am]

BILLING CODE 4910-59-P