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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - 49 CFR Part 393 
          - [FMCSA Docket FMCSA-1997-2222] 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Final rule; partial suspension of deadline. 

      ( print page 30336)    

# SUMMARY:

The FMCSA is amending the Federal Motor Carrier Safety Regulations (FMCSRs) to extend the deadline for motor carriers operating intermodal container chassis (container chassis) to comply with the agency's requirement that trailers manufactured before December 1, 1993, be retrofitted with retroreflective sheeting (or reflex reflectors). Currently, the FMCSRs require that motor carriers engaged in interstate commerce install retroreflective tape or reflex reflectors on the sides and rear of semitrailers and trailers that were manufactured prior to 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 deadline for compliance with the rule is June 1, 2001. The partial suspension of the deadline will enable motor carriers operating container chassis to continue using those commercial motor vehicles without retroreflective sheeting (or reflex reflectors) until December 1, 2001. This action is in response to a petition from the Ocean Carrier Equipment Management Association, Intermodal Association of North America, Institute of Intermodal Container Lessors, and Association of American Railroads (collectively referred to as “the Petitioners”). 

# DATES:

The effective date for this rule is June 1, 2001. 

# FOR FURTHER INFORMATION CONTACT:

Mr. Larry W. Minor, Office of Bus and Truck Standards and Operations, (202) 366-4009, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. 

# SUPPLEMENTARY INFORMATION:

 

## 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. 

## FHWA Rulemaking and Congressional Action 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. In addition to responding to those specific 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). 

The Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107) was enacted on June 9, 1998. Section 4025 required that the Secretary issue a final rule regarding the conspicuity of trailers manufactured before December 1, 1993, within one year of the enactment of TEA-21. The Secretary was to consider, at a minimum: 

(1) The cost-effectiveness of any requirement to retrofit trailers manufactured before December 1, 1993. 

(2) The extent to which motor carriers have voluntarily taken steps to increase equipment visibility. 

(3) Regulatory flexibility to accommodate differing trailer designs and configurations, such as tank trucks. 

On June 19, 1998, the FHWA published a notice of proposed rulemaking to require motor carriers to install retroreflective tape or reflex reflectors within two years of the effective date of the final rule (63 FR 33611). The agency proposed allowing motor carriers 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 requiring all older trailers to be equipped with conspicuity treatments identical to those mandated for new trailers at the end of the 10-year period. The proposal also specified the locations at which the retroreflective material would have to be applied to trailers during the phase-in period. 

Although the FHWA drafted the NPRM prior to the enactment of the TEA-21, the agency reviewed section 4025 of the TEA-21 prior to publishing the NPRM. The FHWA considered the NPRM to be consistent with the three statutory criteria. 

The FHWA published its final rule on trailer conspicuity retrofitting on March 31, 1999 (64 FR 15588). The final rule requires that motor carriers engaged in interstate commerce install retroreflective tape or reflex reflectors on the sides and rear of semitrailers and trailers that were manufactured prior to 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. Motor carriers must install retroreflective tape or reflex reflectors by June 1, 2001. The final rule allows motor carriers a certain amount of flexibility in terms of the colors or color combinations during a 10-year period beginning on June 1, 1999, but requires that all older trailers be equipped with conspicuity treatments identical to those mandated for new trailers by June 1, 2009. 

## Petition for Rulemaking 

On March 30, 2001, the Petitioners, in accordance with 49 CFR 389.31 (Petitions for Rulemaking), requested that the FMCSA extend the June 1, 2001, deadline for complying with the conspicuity retrofitting rule (49 CFR 393.13) until June 1, 2002. A copy of the petition for rulemaking is in the docket referenced at the beginning of this notice. The Petitioners argued that it is impossible for them to complete the required retrofitting by that date because they experienced technical problems applying retroreflective sheeting to the container chassis, and because unusually high volumes of intermodal freight over the past two years have made it difficult to schedule retrofitting of the chassis. The volume of intermodal freight and service demands have kept the equipment in use almost constantly. The Petitioners believe an extension of the deadline is necessary to avoid “potentially disastrous consequences” for U.S. trade. 

The Petitioners estimate that the FMCSA's retrofitting requirements are applicable to 385,600 container chassis and 44,500 domestic intermodal trailers manufactured before December 1, 1993. They estimate that on June 1, 2001, there would be approximately 193,000 trailers used in intermodal service (181,000 container chassis and 12,000 domestic intermodal trailers) still in need of conspicuity material. 

                    With regard to the technical difficulties, the Petitioners indicated that the initial retrofit methods proved to be unsuccessful, so it took several                           ( print page 30337)                        months to research, develop, test, and implement alternative retrofit methods.                 

The Petitioners stated: 

Although development of retrofit methods began as early as 1998, an effective method for chassis was not developed and widely implemented until February 2000, almost a year after the rule was issued. At the time the final rule was promulgated, intermodal trailers and chassis were retrofitted by applying adhesive reflective tape onto scrupulously cleaned trailer or chassis surfaces when the ambient air temperature and the temperature of the trailer or chassis surface was above 50 degrees Fahrenheit. Retrofitting in this way could only be accomplished in good weather (i.e., during peak shipping season months when equipment turn-around and unavailability is at its highest) or inside heated maintenance and repair facilities, which are limited in number and size. 

Although intermodal trailers are still retrofitted in this way, the process proved unsatisfactory for chassis because of the materials involved. Most of the chassis in need of retrofit have a wax-based petroleum coating designed to protect against general “wear and tear,” harsh road dirt and debris, and exposure to extreme weather conditions. Unfortunately, this coating has a serious unwanted side effect—it prevents reflective tape from adhering for any significant amount of time. Thus, reflective materials on chassis thought to have been retrofitted began falling off within a few weeks after application. An alternative retrofit method needed to be developed. 

* * * * *

Eventually, a fastener was found that could penetrate steel without compromising its integrity, and that did not require electrical or air power, and could be applied outside a machine shop. The fastener, known as the “Hilti Fastener,” utilizes a cold welding process to fasten the reflector-mounted aluminum strips onto chassis. To date, the Hilti Fastener is the fastest and most commonly-used method for lasting chassis retrofit. However, the Hilti Fastener was not available for general use until November of 1999, five months after the rule went into effect. 

The Petitioners believe that if the FMCSA does not grant an extension of the June 1, 2001, deadline many of the non-compliant intermodal equipment would have to be taken out of revenue service until the vehicles could be retrofitted. A reduction in available equipment on June 1, which coincides with the beginning of the peak-shipping season, would adversely impact the flow of goods into and out of the United States. There would be fewer chassis to handle an increasing number of intermodal containers. 

## FMCSA's Basis for Suspending the Deadline for Container Chassis 

The FMCSA has carefully reviewed the Petitioners' request and believes that the technical problems associated with installing conspicuity treatments on container chassis warrants a suspension of the deadline as it applies to these particular CMVs. However, the agency does not believe the petitioners have presented a compelling argument for suspending the deadline for domestic intermodal trailers. 

The agency accepts the Petitioners' prediction that as of June 1, 2001, approximately 237,000 container chassis and domestic intermodal trailers would have been retrofitted. The agency also accepts their estimate that there would be another 193,000 intermodal CMVs (181,000 container chassis and 12,000 domestic intermodal trailers) to retrofit. The technical problems the owners had attaching the conspicuity materials with adhesives appear to have played a major role in their failure to complete the retrofitting of all their chassis by June 1, 2001. However, the safety benefits of conspicuity treatments are significant and both the owners and operators should put forth much more aggressive efforts to ensure that the retrofitting is completed as soon as possible. A six-month extension should enable the owners to complete the retrofitting of most, if not all, of the remaining chassis, provided the task is handled with a greater sense of urgency than has been demonstrated to date. 

The FMCSA is concerned that the Petitioners failed to resolve technical issues early on in the retrofitting process to ensure compliance with the June 1, 2001, deadline and that the agency was not notified of these problems until March 2001. The agency believes use of the Hilti Fastener process should help to ensure that most of the remaining container chassis are retrofitted by December 1, 2001. 

The FMCSA understands the difficulties the owners of the container chassis have locating these vehicles. Efforts should be taken to improve the tracking of the chassis not only to comply with the conspicuity retrofitting rule, but also to ensure appropriate systematic inspection, repair, and maintenance of the chassis. It may even be necessary to authorize other parties to install conspicuity treatments on a reimbursable basis. 

With regard to the Petitioners request to extend the deadline for retrofitting of domestic intermodal trailers, the FMCSA does not believe sufficient technical justification has been provided to support the request. There is no indication that domestic intermodal trailers differ significantly from typical van-type trailers in terms of the surfaces on which the conspicuity treatments would be applied. While some of the logistics issues raised by the Petitioner may apply equally to container chassis and domestic intermodal trailer, the agency's primary reason for granting the partial suspension of the deadline is the unforeseen technical difficulty in retrofitting container chassis. Given the relatively small number of domestic intermodal trailers that would need to be retrofitted after June 1, 2001, the intermodal segment of the transportation industry could effectively manage an expedited program to retrofit those vehicles without a suspension of the deadline. 

The safety benefits of the retrofitting rule are such that the agency must ensure that as many trailers as possible are retrofitted as soon as possible. The entities that offer intermodal container chassis and domestic intermodal trailers for transportation should use every reasonable means available to comply with the rule. 

The FMCSA reviewed the NHTSA's recent technical report, “The Effectiveness of Retroreflective Tape on Heavy Trailers,” March 2001, (DOT HS 809 222), to ensure that the agency's estimates of the safety benefits of the retrofitting rule were appropriate. The NHTSA report evaluates the effectiveness of retroreflective sheeting in enhancing the visibility of heavy trailers and reducing the incidence of passenger cars crashing into the sides and rear of trailers at nighttime. The study is based on a statistical analysis of 10,959 accident cases investigated by the Florida Highway Patrol and the Pennsylvania State Police from 1997 to 1999. The authors of the report indicate that conspicuity treatments reduced side and rear impacts into trailers in dark conditions (including “dark-not-lighted,” “dark-lighted,” “dawn,” and “dusk”) by 29 percent. In “dark-not-lighted” conditions, the conspicuity treatments reduced side and rear impact accidents by 41 percent. Conspicuity material reduced side and rear impacts that resulted in fatalities or injuries to drivers of any vehicle by 44 percent. 

                    The FMCSA discussed the projected safety benefits of conspicuity material that meets the NHTSA requirement for new trailers in the preamble to the March 31, 1999, final rule requiring the retrofit of trailers manufactured before                           ( print page 30338)                        December 1, 1993. As reported there, NHTSA estimated 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 in about 11,000 accidents per year 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, were expected to prevent, annually, 2,113 of these accidents. The NHTSA estimated 1,315 fewer injuries and about 80 fewer fatalities would occur.                 

The effectiveness study published in March 2001 indicates that when all heavy trailers have conspicuity treatments, the material will prevent approximately 7,800 accidents per year. Conspicuity treatments will prevent about 3,100 to 5,000 injuries, and 191 to 350 fatalities per year. Current information on the effectiveness of the conspicuity material on new trailers therefore strongly suggests that the safety benefits of retrofitting may be much greater than the agency estimated. As such, the FMCSA has an obligation to ensure that all trailers subject to its conspicuity retrofitting requirements, are equipped with the required retroreflective sheeting or reflex reflectors. 

The FMCSA will continue to work with its State partners to ensure that motor carriers operating trailers, other than container chassis (as defined in 49 CFR 393.5), comply with the conspicuity requirements on and after June 1, 2001. The agency intends to ensure that motor carriers operating container chassis comply on and after December 1, 2001. 

## Rulemaking Analysis and Notices 

Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. 

In this case, notice and comment are impracticable. The final rule suspends the deadline for compliance with 49 CFR 393.13 for motor carriers operating intermodal container chassis until December 1, 2001. Because the Petitioners waited until March 30, 2001, to submit their request and supporting documentation, there was insufficient time for the FMCSA to complete a notice and comment rulemaking in response to the petition. Therefore, the FMCSA finds good cause under 5 U.S.C. 553(b) to make this amendment effective without prior notice or opportunity for comment. 

For the same reasons, the FMCSA finds, pursuant to 5 U.S.C. 553(d)(3), that there is good cause for making the final rule effective upon issuance. Because the compliance date for the trailer conspicuity retrofitting rule (49 CFR 393.13) is June 1, 2001, the final rule must be effective on or before that date. The partial suspension of the deadline for compliance will remain in effect until December 1, 2001. 

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

The FMCSA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or within the meaning of Department of Transportation regulatory policies and procedures. The final rule suspends the compliance date of § 393.13 until December 1, 2001, for motor carriers operating intermodal container chassis, while retaining the current compliance date for retrofitting trailers manufactured before December 1, 1993. Although the March 31, 1999, final rule establishing the current retrofitting requirement was a significant regulatory action under section 3(f) of Executive Order 12866, the Office of Management and Budget (OMB) does not consider this partial suspension of the final rule as a significant action. 

## Regulatory Flexibility Act 

                    This action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*) because the original requirements did not have a significant effect on a substantial number of small entities, and this suspension does not change those requirements.                

## Executive Order 13132 (Federalism) 

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and it has been determined that this action does not have significant Federalism implications or limit the policymaking discretion of the States. Nothing in this document 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. 

## Unfunded Mandates Reform Act of 1995 

                    This rule does not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532*et seq.*) that will result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year.                 

## Paperwork Reduction Act of 1995 

                    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,                     *et seq.*), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. This action has no information collection requirements.                 

## National Environmental Policy Act 

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

## Executive Order 12988 (Civil Justice Reform) 

This action meets applicable standards in sections 3(a) and 3(b)(2) of executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. 

## Executive Order 13045 (Protection of Children) 

We have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not economically significant and does not concern an environmental risk to health or safety that may disproportionately affect children. 

## Executive Order 12630 (Taking of Private Property) 

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. 

# List of Subjects in 49 CFR Part 393

      - Highway safety
      - Motor carriers
      - Motor vehicle safety
      - Reporting and recordkeeping requirements

      ( print page 30339)    
For the reasons discussed in the preamble, the FMCSA amends title 49, Code of Federal Regulations, chapter III, part 393 as follows: 

# PART 393—[AMENDED] 

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

Authority:Sec. 1041(b) of Public Law 102-240, 105 Stat. 1914; 49 U.S.C. 31136 and 31502; 49 CFR 1.73. 

2. Amend § 393.13 to revise paragraph (a) to read as follows: 

§ 393.13

                            (a)                             *Applicability.*                            All trailers and semitrailers 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, pole trailers (as defined in § 390.5 of this subchapter), 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 operating trailers, other than container chassis (as defined in § 393.5), have until June 1, 2001, to comply with the requirements of this section. Motor carriers operating container chassis have until December 1, 2001, to comply with the requirements of this section.                         

* * * * *

Issued on: June 1, 2001. 

Stephen E. Barber, 

Acting Deputy Administrator. 

[FR Doc. 01-14287 Filed 6-1-01; 8:45 am] 

BILLING CODE 4910-EX-U