Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Proposed Rules 58657 

valid allotment claims for a small 

number of Alaska Native Veterans who 

have already applied. 

Author: The principal author of this 

rule is Mike Haskins, Division of 

Conveyance Management, Bureau of 

Land Management, Anchorage, Alaska; 

assisted by Kelly Odom of the BLM’s 

Regulatory Affairs Group, Bureau of 

Land Management, Washington, DC. 

List of Subjects in 43 CFR Part 2560 

Alaska, Homesteads, Indian lands, 

Public lands, Public lands—sale, and 

Reporting and recordkeeping 

requirements, Alaska Native allotments 

for certain veterans. 

Dated: September 27, 2005. 

Chad Calvert, 

Acting Assistant Secretary, Land and 

Minerals Management. 

For the reasons set forth in the 

preamble and under the authority of the 

Alaska Native Veterans Allotment Act of 

1998 (Section 432, Pub. L. 105–276) the 

BLM proposes to amend part 2560 of 

Title 43 of the Code of Federal 

Regulations as set forth below: 

PART 2560—ALASKA OCCUPANCY 

AND USE 

1. Revise the authority citation for 

part 2560 to read as follows: 

Authority: 43 U.S.C. 1629g(e). 

2. Revise paragraph (d) of § 2568.74 to 

read as follows: 

§ 2568.74 What else must I file with my 

application? 

* * * * * 

(d) A legal description of the land for 

which you are applying. If there is a 

discrepancy between the map and the 

legal description, the map will control. 

The map must be sufficient to allow the 

BLM to locate the parcel on the ground. 

You must also estimate the number of 

acres in each parcel. 

§ 2568.77 [Removed and Reserved] 

3. Remove and reserve § 2568.77. 

[FR Doc. 05–20164 Filed 10–6–05; 8:45 am] 

BILLING CODE 4310–84–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 393 

Docket No. FMCSA–2005–21323] 

RIN–2126–AA91 

Parts and Accessories Necessary for 

Safe Operation: Surge Brake 

Requirements 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM); request for comments. 

SUMMARY: In response to a petition for 

rulemaking from the Surge Brake 

Coalition, the Federal Motor Carrier 

Safety Administration proposes to 

amend the Federal Motor Carrier Safety 

Regulations (FMCSRs) to allow the use 

of automatic hydraulic inertia brake 

systems (surge brakes) on trailers 

operated in interstate commerce. A 

surge brake is a self-contained 

permanently closed hydraulic brake 

system activated in response to the 

braking action of the tow vehicle. The 

amount of trailer braking effort 

developed is proportional to the total 

trailer weight and deceleration rate of 

the tow vehicle. Currently, surge brakes 

are not considered by FMCSA to comply 

with the FMCSRs specifying that all 

brakes with which a motor vehicle is 

equipped must at all times be capable of 

operating, and that a single application 

valve must, when applied, operate all 

the service brakes on the motor vehicle 

or combination of motor vehicles. The 

intent of this rulemaking is to adopt 

performance-based brake system 

requirements to allow the use of surge 

brakes on certain combinations of 

commercial motor vehicles based upon 

engineering test data submitted by the 

Surge Brake Coalition. 

DATES: Comments must be received by 

December 6, 2005. 

ADDRESSES: You may submit comments 

identified by DOT DMS Docket Number 

FMCSA–2005–21323 by any of the 

following methods: 

• Web site: http://dms.dot.gov. 

Follow the instructions for submitting 

comments on the DOT electronic site. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

0001. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal 

Holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking (RIN–

2126–AA91). Note that all comments 

received will be posted without change 

to http://dms.dot.gov, including any 

personal information provided. Please 

see the Privacy Act heading for further 

information. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

dms.dot.gov at any time or to Room PL–

401 on the plaza level of the Nassif 

Building, 400 Seventh Street, SW., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal Holidays. 

Privacy Act: Anyone is able to search 

the electronic form for 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) or you may visit http:// 

dms.dot.gov. 

Comments received after the comment 

closing date will be included in the 

docket and we will consider late 

comments to the extent practicable. 

FMCSA may, however, issue a final rule 

at any time after the close of the 

comment period. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Luke W. Loy, Vehicle and Roadside 

Operations Division, Federal Motor 

Carrier Safety Administration, 202–366–

0676, 400 Seventh Street, SW., 

Washington, DC 20590–0001. Office 

hours are from 9 a.m. to 5 p.m. e.s.t., 

Monday through Friday, except Federal 

holidays. 

SUPPLEMENTARY INFORMATION: This 

notice is organized as follows: 

I. Legal Basis for the Rulemaking 

II. Background 

III. Petition 

IV. Regulatory Analyses and Notices 

I. Legal Basis for the Rulemaking 

This rulemaking is based on the 

authority of the Motor Carrier Act of 

1935 and the Motor Carrier Safety Act 

of 1984 (49 U.S.C. 31131, et seq.). 

The Motor Carrier Act of 1935, as 

amended, provides that ‘‘[t]he Secretary 

58658 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Proposed Rules 

1The Federal Highway Administration’s (FHWA) 

Bureau of Motor Carrier Safety (Bureau) (FMCSA’s 

predecessor agency) published these motor carrier 

safety interpretations. 

of Transportation (Secretary) may 

prescribe requirements for: (1) 

Qualifications and maximum hours-ofservice of employees of, and safety of 

operation and equipment of, a motor 

carrier; and (2) qualifications and 

maximum hours-of-service of employees 

of, and standards of equipment of, a 

motor private carrier, when needed to 

promote safety of operation’’ (49 U.S.C. 

31502(b)). 

This NPRM proposes to amend 

regulations located at 49 CFR 393.48 

entitled ‘‘Brakes to be Operative,’’ 49 

CFR 393.49 currently entitled ‘‘Single 

Valve to operate all Brakes,’’ which 

previously was interpreted as 

prohibiting the use of surge brakes on 

commercial motor vehicles (CMVs), and 

to add a definition to § 393.5 for surge 

brakes. Section 393.48 states that all 

brakes with which a motor vehicle is 

equipped must at all times be capable of 

operating. Section 393.49 requires that a 

single application valve must when 

applied operate all the service brakes on 

the motor vehicle or combination of 

motor vehicles. The adoption and 

enforcement of such rules is specifically 

authorized by the Motor Carrier Act of 

1935. This NPRM rests squarely on that 

authority. 

The Motor Carrier Safety Act of 1984 

provides concurrent authority to 

regulate drivers, motor carriers, and 

vehicle equipment. It requires the 

Secretary to ‘‘prescribe regulations on 

commercial motor vehicle safety. The 

regulations shall prescribe minimum 

safety standards for commercial motor 

vehicles. At a minimum, the regulations 

shall ensure that: (1) Commercial motor 

vehicles are maintained, equipped, 

loaded, and operated safely; (2) the 

responsibilities imposed on operators of 

commercial motor vehicles do not 

impair their ability to operate the 

vehicles safely; (3) the physical 

condition of operators of commercial 

motor vehicles is adequate to enable 

them to operate vehicles safely; and (4) 

the operation of commercial motor 

vehicles does not have a deleterious 

effect on the physical condition of the 

operators’’ (49 U.S.C. 31136(a)). 

This NPRM deals with surge brakes. 

The fundamental purpose of 49 CFR 

Part 393 Parts and Accessories 

Necessary for Safe Operation is to 

ensure that no employer is allowed to 

operate a commercial motor vehicle or 

cause or permit it to be operated, unless 

it is equipped in accordance with the 

requirements and specifications of this 

part. However, nothing contained in 

part 393 can be construed to prohibit 

the use of additional equipment and 

accessories, not inconsistent with or 

prohibited by part 393, provided such 

equipment and accessories do not 

decrease the safety of operation of the 

motor vehicles on which they are used. 

Compliance with the brake regulations 

is necessary to ensure vehicles are 

equipped with adequate braking 

capability to ensure control of the CMV. 

Before prescribing modifications to such 

regulations, FMCSA must consider the 

‘‘costs and benefits’’ of any proposal (49 

U.S.C. 31136(c)(2)(A)). 

II. Background 

The Surge Brake Coalition petitioned 

FMCSA on February 28, 2002, to amend 

§ 393.48 entitled ‘‘Brakes to be 

Operative’’ and § 393.49 entitled ‘‘Single 

Valve to Operate all Brakes,’’ which 

have been interpreted as prohibiting the 

use of surge brakes on commercial 

motor vehicles. Coalition members 

include trailer manufacturers, parts 

suppliers, commercial users dependent 

upon trailers, trailer rental companies, 

and trade associations whose 

memberships comprise distinct 

segments of the trailer business. A copy 

of the petition is included in the docket 

referenced at the beginning of this 

document. 

Section 393.48 states that all brakes 

with which a motor vehicle is equipped 

must at all times be capable of 

operating. Section 393.49 requires a 

single application valve must, when 

applied, operate all the service brakes 

on the motor vehicle or combination of 

motor vehicles. Regulatory guidance 

previously issued by the Agency (40 FR 

50671, 50688, Oct. 31, 1975) 1 indicates 

the use of surge brakes on trailers 

operated in interstate commerce is 

inconsistent with the requirements of 

§§ 393.48 and 393.49. 

Section 393.48 Brakes to be 

Operative. The Bureau’s position 

regarding surge brakes has been that 

they did not comply with the 

requirements of Section 393.48 of the 

Motor Carrier Safety Regulations. The 

cited section requires, in part, that all 

brakes with which motor vehicles are 

required to be equipped must be 

operative at all times. A surge brake 

which is only operative under certain 

preset conditions would not be in 

compliance with this requirement. In 

other words, surge brakes, in general, 

are only operative when the vehicles are 

moving in the forward direction. 

Section 393.49 Single Valve to 

Operate All Brakes. A surge brake 

would comply with the requirements of 

Section 393.49 as it specifically states 

that the brake system shall be so 

arranged that one application valve 

shall, when applied, operate all of the 

service brakes on the motor vehicle or 

combination of motor vehicles. When 

the service brakes on a power unit 

towing a vehicle with surge brakes are 

applied, the brakes on both vehicles 

would be applied. The power unit 

brakes would be applied by its 

application valve and the surge brakes 

on the towed vehicle by the overrunning 

effect. 

Subsequent regulatory guidance 

published by FHWA on November 17, 

1993 (58 FR 60734, 60755) indicated 

that surge brakes did not comply with 

both §§ 393.48 and 393.49: 

Section 393.48 Brakes to be 

Operative. Question 1: Do surge brakes 

comply with § 393.48? No. Section 

393.48 requires that brakes be operable 

at all times. Generally, surge brakes are 

only operative when the vehicle is 

moving in the forward direction and as 

such do not comply with section 393.48. 

Section 393.49 Single Valve to 

Operate All Brakes. Question 1: Does a 

combination of vehicles using a surge 

brake to activate the towed vehicle’s 

brakes comply with § 393.49? No. The 

surge brake cannot keep the trailer 

brakes in an applied position. Therefore, 

the brakes on the combination of 

vehicles are not under the control of a 

single valve as required by § 393.49. 

This guidance was also included in 

FHWA’s April 4, 1997 (62 FR 16370, 

16415 and 16416) publication, 

‘‘Regulatory Guidance for the Federal 

Motor Carrier Safety Regulations.’’

III. Petition 

The Surge Brake Coalition proposed 

in their petition for rulemaking that 

§ 393.48 be amended by: 

1. Revising paragraph (a) to read: 

General rule. Except as provided in 

paragraphs (b), (c), and (d) of this 

section, all brakes with which a motor 

vehicle is equipped must at all times be 

capable of operating. 

2. Adding a new paragraph (d) to 

read: 

Surge brakes. Paragraph (a) of this 

section does not apply to: 

Any trailer with a gross vehicle 

weight rating (GVWR) of 12,000 lbs or 

less, equipped with inertial surge brakes 

when its GVWR does not exceed 1.75 

times the GVWR of the towing vehicle; 

or 

Any trailer with a GVWR greater than 

12,000 lbs, but less than 20,001 pounds 

(lbs), equipped with inertial surge 

brakes when the GVWR does not exceed 

1.25 times the GVWR of the towing 

vehicle. 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Proposed Rules 58659 

The Petitioner also requested the 

following exception be added to 

§ 393.49: ‘‘This requirement shall not 

apply to trailers equipped with surge 

brakes that satisfy the conditions 

provided in § 393.48(d).’’

The Petitioner argues that surge 

brakes provide a safe, practical braking 

system for commercial motor vehicle 

combinations, especially for scenarios 

in which the trailer is likely to be towed 

by a variety of vehicles. For example, in 

the rental market, trailers are rented 

separately from towing vehicles, and 

towing vehicles frequently are not wired 

for electric brake controls. The 

Petitioner indicates that rental 

companies believe it is ‘‘prohibitively 

expensive and impractical’’ to install or 

adapt a brake control system on each 

towing vehicle every time they rent a 

trailer or piece of mobile equipment. 

The Petitioner estimates that over 25 

percent of the rental trailer fleet is 

equipped with surge brakes. 

The Petitioner believes surge brakes 

are a popular alternative to electric 

brakes because surge brakes activate 

automatically, adapt to the weight of the 

load, have fewer components, and 

require less maintenance. These features 

make surge brakes ideal for flatbed and 

van-type trailers with a GVWR of 20,000 

lbs or less, and trailers serving the 

marine industry. The Petitioner also 

points out that manufacturers install 

approximately 250,000 surge brake 

systems annually on small to medium 

sized trailers. 

The Petitioner’s Engineering Tests 

The Petitioner conducted brake 

performance tests at Exponent Failure 

Analysis Associates’ (EFAA) Test and 

Engineering Center in Phoenix, Arizona. 

EFAA tested the braking performance of 

16 different configurations of towing 

vehicles and trailers. The Petitioner 

used the services of a consulting 

engineer to interpret the test results and 

prepare the final report concerning the 

tests. 

Test Protocol 

1. Straight-line braking: Vehicle 

combinations were stopped from speeds 

of approximately 20 miles per hour 

(mph) or greater to determine whether 

the vehicle could meet the performance 

requirements under § 393.52. The 

vehicle combination was required to 

stay within a 12-foot-wide lane during 

the test and the stopping distance was 

measured. 

2. Brake holding on a 20 percent 

incline: Using only the service brakes, 

the combination was stopped going up 

a 20 percent incline and required to 

remain stationary for at least 5 minutes. 

3. Braking in a turn: The towing 

vehicle and trailer were driven on a 

circular, 12-foot-wide, 500-foot-radius 

test track of known coefficient of 

friction. The driver then applied the 

brakes to achieve maximum 

deceleration. The average deceleration 

was calculated. 

Test Vehicles 

Trailers (GVWR): 

• 1999 U-Haul tandem axle auto 

transport (6,000 lbs GVWR), equipped 

with U-Haul surge brake actuator. 

• 2000 Big Tex tandem axle, open 

cargo area, with side rails (14,000 lbs 

GVWR), equipped with Demco model 

DA20 surge brake actuator. 

• Two 2001 Wells Cargo flatbed 

trailers with triple torsion axles (20,000 

lbs GVWR). One trailer was equipped 

with a Titan model 20 surge brake 

actuator and the other with a Demco 

model DA20 surge brake actuator. 

Towing vehicles (GVWR): 

• 1993 Chevrolet C–1500 (6,100 lbs 

GVWR), curb weight 4,200 lbs. The 

vehicle was equipped with front disc 

brakes and rear drum brakes. The 

vehicle was also equipped with a rearaxle antilock braking system (ABS). 

• 2001 Chevrolet K–3500 (11,400 lbs 

GVWR), curb weight 7,072 lbs. The 

vehicle was equipped with four-wheel 

disc brakes and four-wheel ABS. 

• 2001 GMC Sierra (11,400 lbs 

GVWR), curb weight 7,476 lbs. The 

vehicle was equipped with four-wheel 

disc brakes and four-wheel ABS. 

Towing vehicle & trailer test 

combinations: 

• Unladen pickup truck/unladen 

trailer. 

• Unladen pickup truck/full GVWR 

trailer. 

• Full GVWR pickup truck/unladen 

trailer. 

• Full GVWR pickup truck/full 

GVWR trailer. 

Test Results: 

• Vehicle combinations that included 

a heavy trailer (GVWR between 12,001 

lbs and 14,600 lbs) complied with 

FMCSA’s brake performance 

requirements under 49 CFR 393.52 

when the GVWR of the trailer was 1.25 

times that of the towing vehicle or less, 

including test runs with the towing 

vehicle and trailer loaded to their 

maximum GVWR. 

• Vehicle combinations that included 

a medium-weight trailer (GVWR up to 

12,000 lbs) complied with FMCSA’s 

brake performance requirements when 

the GVWR of the trailer was 2 times that 

of the towing vehicle or less, including 

runs with the towing vehicle and trailer 

loaded to their maximum GVWR. 

• Vehicle combinations that fall 

within the ratios of towing vehicle 

GVWR to trailer GVWR are capable of 

complying with 49 CFR 393.52, 

demonstrate stability and control during 

braking-in-a-curve tests, and are capable 

of being stopped and held stationary 

going up a 20 percent grade. 

On August 13, 2004, FMCSA granted 

the Surge Brake Coalition’s petition. 

FMCSA made a preliminary 

determination that the petitioner 

presented sufficient technical 

information to support its request that 

the Agency initiate a rulemaking to 

allow the use of surge brakes on certain 

combinations of vehicles. Although a 

limited number of vehicle 

configurations were tested, the Agency 

believes the tests adequately 

demonstrate safe ratios of the towing 

vehicle GVWR to the trailer GVWR that 

would be used to determine whether 

surge brakes may be used on a particular 

combination of vehicles. 

The Agency does not believe that 

permitting the use of surge brakes, 

under the specific conditions noted in 

this proposal, is inconsistent with the 

original intent of §§ 393.48 and 393.49. 

Section 393.48 requires that brakes be 

capable of operating at all times the 

vehicle is in operation on public roads. 

The intent of the requirement is that all 

commercial motor vehicles operating in 

interstate commerce have sufficient 

braking capability at all times. Based 

upon the information provided by the 

petitioner, FMCSA believes vehicles 

equipped with surge brakes, under the 

conditions being proposed in this 

rulemaking notice, would have 

sufficient braking capability at all times 

the vehicle combination is being 

operated on public roads, in interstate 

commerce. While surge brakes 

automatically release when the vehicle 

combination comes to a complete stop, 

the weight-ratio between the towing 

vehicle and the trailer being proposed 

today would ensure that the brakes on 

the towing vehicle are sufficient to 

maintain control of the combination 

when the surge brakes release 

automatically. Therefore, the agency 

believes the original intent of Section 

393.48 would be satisfied by surge brake 

systems meeting the proposed 

requirements. 

The petitioner contends that: 

Technological advances in braking systems 

render the original purpose of § 393.49 and 

its ‘‘single-valve’’ criterion overly broad and 

excessively restrictive. FHWA [previously] 

developed this regulation as a materialsoriented specification to foreclose the 

shortcomings of and risks associated with the 

predominant braking system of the day, 

58660 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Proposed Rules 

wheel brakes and their use in conjunction 

with large tractors or power units. 

The Agency agrees with the petitioner 

that advances in braking technology, 

and specifically in the instance of surge 

brakes, render the current single valve 

requirement in the § 393.49 design 

restrictive and not necessary or 

appropriate when considered 

specifically in the context of surge 

brakes installed on the small and midsize trailers addressed by this proposal. 

The Agency proposes to rename and 

revise § 393.49 to make its construction 

consistent with § 393.48, and to make it 

easier to quickly understand the general 

requirement and the exceptions, which 

would include one for surge brakes. A 

new title of ‘‘Control Valves for Brakes’’

is proposed for this section to be more 

representative of the different types of 

brake systems addressed. 

The Agency is proposing to add a 

definition for surge brakes to § 393.5 to 

ensure a clear understanding of what is 

meant by the term ‘‘surge brakes,’’ and 

to facilitate consistent application of the 

requirements being proposed. 

If the proposed regulatory 

amendments are adopted, the Agency 

would withdraw the existing regulatory 

guidance provided as Question 1 to 

§ 393.48 and Question 1 to § 393.49, 

originally published on November 17, 

1993 (58 FR 60734) and republished on 

April 4, 1997 (62 FR 16370). These 

existing guidance questions addressing 

whether surge brakes meet the 

requirements of the standard would be 

replaced by the proposed regulatory 

text. Thus, the existing guidance would 

be superseded by the proposed 

regulatory text, and would be 

withdrawn. 

The Agency requests comment on 

whether additional analysis is needed to 

support the Petitioner’s assertion that 

vehicle combinations that include a 

heavy trailer (GVWR between 14,600 lbs 

and 20,000 lbs) would satisfy FMCSA’s 

brake performance requirements under 

§ 393.52 when the GVWR of the trailer 

is 1.25 times that of the towing vehicle 

or less. The agency is also requesting the 

submission of brake performance data 

and information relevant to all the other 

issues raised in the petition, and the 

proposed amendments to §§ 393.48 and 

393.49. 

The Agency emphasizes that the 

granting of the petition for rulemaking, 

and subsequent proposal to amend 

§§ 393.48 and 393.49 should not be 

construed as an exception to the brake 

performance requirements under 

§ 393.52. Therefore, adoption of a final 

rule would not relieve motor carriers of 

their responsibility to ensure that any 

commercial motor vehicle, or 

combination of commercial motor 

vehicles, operated in interstate 

commerce, comply with the brake 

performance requirements under 

§ 393.52. 

IV. Regulatory Analyses and Notices 

Executive Order 12866 (Regulatory 

Planning and Review) and DOT 

Regulatory Policies and Procedures 

FMCSA has determined that this 

action is a significant regulatory action 

within the meaning of Executive Order 

12866 due to novel policy issues in that 

it is the subject of both a regulatory 

reform nomination and an industry 

petition. This rule has generated a 

significant amount of public interest as 

it has been identified in the 2005 

‘‘Regulatory Reform of the U.S. 

Manufacturing Sector’’ as published by 

the Office of Management and Budget. 

We expect the proposed rule would 

have minimal costs. The Agency has 

prepared a preliminary regulatory 

analysis analyzing the costs and benefits 

of this undertaking. A copy of the 

preliminary analysis document is 

included in the docket referenced at the 

beginning of this notice. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (5 U.S.C. 601–612), the 

FMCSA has considered the effects of 

this regulatory action on small entities 

and determined on a preliminary basis 

that this proposed rulemaking would 

have minimal, but positive impact on a 

substantial number of small entities. 

This is because it removes a regulatory 

obstacle to the use of surge brakes on 

small and medium trailers. There are 

over 150 firms that manufacture trailers, 

about 300 firms that are in the boat 

delivery service, thousands of landscape 

and construction firms that may use 

trailers, and over 2,000 rental 

equipment firms that may offer trailers 

for rent. The majority of these firms are 

small businesses according to the 

definition provided by the Small 

Business Administration. No entity 

would be required to use surge brakes, 

and those currently using electric or 

other types of brakes have the option to 

continue with no change. 

The change proposed is to allow a 

braking system that is not currently 

allowed. Many of these operations use 

small or medium trailers in their daily 

operations, which are subject to the 

FMCSRs if operated in interstate 

commerce, which currently do not 

allow the use of surge brakes. CMVs 

using such trailers are most likely to be 

operated in interstate commerce if the 

operation is near a State boundary. This 

proposed regulatory action would help 

to promote more uniform requirements. 

This is because numerous State agencies 

responsible for motor carrier safety are 

faced with a current dilemma: 

specifically, enforcing Federal 

regulations prohibiting the use of surge 

brakes on trailers operated in interstate 

commerce, while allowing identical 

trailer combinations to operate on the 

same roads, under the same conditions, 

in intrastate commerce. 

Accordingly, FMCSA certifies that the 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Unfunded Mandates Reform Act of 1995 

This rulemaking would 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 1 year. 

Executive Order 12988 (Civil Justice 

Reform) 

This proposed action would meet 

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) 

FMCSA has analyzed this proposed 

action under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. We have determined 

preliminarily that this rulemaking 

would not concern an environmental 

risk to health or safety that may 

disproportionately affect children. 

Executive Order 12630 (Taking of 

Private Property) 

This proposed rulemaking would not 

effect a taking of private property or 

otherwise have taking implications 

under Executive Order 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights. 

Executive Order 13132 (Federalism) 

This proposed action has been 

analyzed in accordance with the 

principles and criteria contained in 

Executive Order 13132. The FMCSA has 

preliminarily determined that this 

rulemaking would not have a 

substantial direct effect on States, nor 

would it limit the policy-making 

discretion of the States. 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Proposed Rules 58661 

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 proposed rulemaking would 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 

We have analyzed this action for 

purposes of the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321, et 

seq.) and have determined preliminarily 

that this action would not have an effect 

on the quality of the environment. 

However, a preliminary environmental 

assessment (EA) has been prepared 

because the rulemaking is not among 

the type covered by a categorical 

exclusion. A copy of the preliminary 

environmental assessment is included 

in the docket listed at the beginning of 

this notice. 

Executive Order 13211 (Energy Effects) 

We have analyzed this proposed 

action under Executive Order 13211, 

Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use. We have 

determined preliminarily that it would 

not be a ‘‘significant energy action’’

under that Executive Order because it 

would not be economically significant 

and would not be likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. 

In consideration of the foregoing, 

FMCSA proposes to amend title 49, 

Code of Federal Regulations, chapter III, 

as follows: 

List of Subjects in 49 CFR Part 393 

Highway safety, Motor carriers and 

Motor Vehicle Safety. 

PART 393—PARTS AND 

ACCESSORIES NECESSARY FOR 

SAFE OPERATION 

1. The authority citation for part 393 

continues to read as follows: 

Authority: Section 1041(b) of Pub. L. 102–

240, 105 Stat. 1914; 49 U.S.C. 31136 and 

31502; and 49 CFR 1.73. 

2. Amend § 393.5 by adding a new 

definition for ‘‘Surge Brake’’ in 

alphabetical order to read as follows: 

§ 393.5 Definitions. 

* * * * * 

Surge Brake. A self-contained, 

permanently closed hydraulic brake 

system for trailers that relies on inertial 

forces, developed in response to the 

braking action of the towing vehicle, 

applied to a hydraulic device mounted 

on or connected to the tongue of the 

trailer, to slow down or stop the towed 

vehicle. 

* * * * * 

3. Amend § 393.48 by revising 

paragraph (a) and adding paragraph (d) 

to read as follows: 

§ 393.48 Brakes to be operative. 

(a) General rule. Except as provided in 

paragraphs (b), (c), and (d) of this 

section, all brakes with which a motor 

vehicle is equipped must at all times be 

capable of operating. 

* * * * * 

(d) Surge brakes. Paragraph (a) of this 

section does not apply to: 

(i) Any trailer with a gross vehicle 

weight rating (GVWR) of 12,000 lbs or 

less, equipped with inertial surge brakes 

when its GVWR does not exceed 1.75 

times the GVWR of the towing vehicle; 

or 

(ii) Any trailer with a GVWR greater 

than 12,000 lbs, but less than 20,001 lbs, 

equipped with inertial surge brakes 

when the GVWR does not exceed 1.25 

times the GVWR of the towing vehicle. 

4. Revise § 393.49 in its entirety, 

including a revised title, to read as 

follows: 

§ 393.49 Control valves for brakes. 

(a) General rule. Except as provided in 

paragraphs (b) and (c) of this section, 

every motor vehicle, the date of 

manufacture of which is subsequent to 

June 30, 1953, which is equipped with 

power brakes, must have the braking 

system so arranged that one application 

valve must when applied operate all the 

service brakes on the motor vehicle or 

combination of motor vehicles. This 

requirement must not be construed to 

prohibit motor vehicles from being 

equipped with an additional valve to be 

used to operate the brakes on a trailer 

or trailers or as provided in § 393.44. 

(b) Driveaway-Towaway Exception. 

This section is not applicable to 

driveaway-towaway operations unless 

the brakes on such operations are 

designed to be operated by a single 

valve. 

(c) Surge brake exception. This 

requirement is not applicable to trailers 

equipped with surge brakes that satisfy 

the conditions specified in 49 CFR 

393.48(d). 

Issued on: October 3, 2005. 

Annette M. Sandberg, 

Administrator. 

[FR Doc. 05–20297 Filed 10–6–05; 8:45 am] 

BILLING CODE 4910–EX–P