[Federal Register Volume 70, Number 194 (Friday, October 7, 2005)]
[Proposed Rules]
[Pages 58657-58661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20297]


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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.

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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:
    <bullet> Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic site.
    <bullet> Fax: 1-202-493-2251.
    <bullet> Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
    <bullet> 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.
    <bullet> 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

[[Page 58658]]

of Transportation (Secretary) may prescribe requirements for: (1) 
Qualifications and maximum hours-of-service 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 Sec.  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 Sec.  393.48 entitled ``Brakes to be Operative'' and Sec.  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 Sec. Sec.  393.48 and 393.49.
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    \1\ The Federal Highway Administration's (FHWA) Bureau of Motor 
Carrier Safety (Bureau) (FMCSA's predecessor agency) published these 
motor carrier safety interpretations.
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    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 Sec. Sec.  393.48 and 393.49:
    Section 393.48 Brakes to be Operative. Question 1: Do surge brakes 
comply with Sec.  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 Sec.  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 Sec.  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 Sec.  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.

[[Page 58659]]

    The Petitioner also requested the following exception be added to 
Sec.  393.49: ``This requirement shall not apply to trailers equipped 
with surge brakes that satisfy the conditions provided in Sec.  
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 Sec.  
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):

    <bullet> 1999 U-Haul tandem axle auto transport (6,000 lbs GVWR), 
equipped with U-Haul surge brake actuator.
    <bullet> 2000 Big Tex tandem axle, open cargo area, with side rails 
(14,000 lbs GVWR), equipped with Demco model DA20 surge brake actuator.
    <bullet> 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):

    <bullet> 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 rear-axle antilock braking 
system (ABS).
    <bullet> 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.
    <bullet> 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:

    <bullet> Unladen pickup truck/unladen trailer.
    <bullet> Unladen pickup truck/full GVWR trailer.
    <bullet> Full GVWR pickup truck/unladen trailer.
    <bullet> Full GVWR pickup truck/full GVWR trailer.

Test Results:

    <bullet> 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.
    <bullet> 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.
    <bullet> 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 Sec. Sec.  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 Sec.  393.49 and its ``single-valve'' criterion overly 
broad and excessively restrictive. FHWA [previously] developed this 
regulation as a materials-oriented specification to foreclose the 
shortcomings of and risks associated with the predominant braking 
system of the day,

[[Page 58660]]

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 Sec.  393.49 design 
restrictive and not necessary or appropriate when considered 
specifically in the context of surge brakes installed on the small and 
mid-size trailers addressed by this proposal.
    The Agency proposes to rename and revise Sec.  393.49 to make its 
construction consistent with Sec.  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 
Sec.  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 
Sec.  393.48 and Question 1 to Sec.  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 Sec.  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 Sec. Sec.  
393.48 and 393.49.
    The Agency emphasizes that the granting of the petition for 
rulemaking, and subsequent proposal to amend Sec. Sec.  393.48 and 
393.49 should not be construed as an exception to the brake performance 
requirements under Sec.  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 Sec.  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.

[[Page 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 Sec.  393.5 by adding a new definition for ``Surge Brake'' 
in alphabetical order to read as follows:


Sec.  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 Sec.  393.48 by revising paragraph (a) and adding 
paragraph (d) to read as follows:


Sec.  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 Sec.  393.49 in its entirety, including a revised title, 
to read as follows:


Sec.  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 Sec.  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