[Federal Register Volume 60, Number 43 (Monday, March 6, 1995)]
[Rules and Regulations]
[Pages 12146-12149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5323]



-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION
Federal Highway Administration

49 CFR Part 393

[FHWA Docket No. MC-94-28]


Parts and Accessories Necessary for Safe Operation; Glazing and 
Window Construction; Petition for Waiver To Permit Use of Automatic 
Vehicle Identification Transponder

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Grant of petition for waiver.

-----------------------------------------------------------------------

SUMMARY: The FHWA is granting a petition from the Commonwealth of 
Kentucky, lead State for the ADVANTAGE I-75 Program, and Heavy Vehicle 
Electronic License Plate, Inc., (HELP) requesting a waiver from the 
requirements of the Federal Motor Carrier Safety Regulations (FMCSRs) 
to allow mounting of an automatic vehicle identification (AVI) 
transponder near the upper border at the approximate center of the 
windshields of commercial motor vehicles.
    The FHWA is granting the waiver to permit the use of the 
transponders in commercial motor vehicles participating in the 
ADVANTAGE I-75 operational (``beta'') test and the HELP corridor 
programs, subject to the conditions imposed in this notice.

EFFECTIVE DATE: April 5, 1995.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Office of Motor 
Carrier Standards, (202) 366-2981, or Mr. Charles Medalen, Office of 
the Chief Counsel, (202) 366-1354, Federal Highway Administration, 
Department of Transportation, 400 Seventh Street SW., Washington, D.C. 
20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    On October 12, 1994, the FHWA published a notice in the Federal 
Register (59 FR 51540) requesting comments on petitions received from 
the Commonwealth of Kentucky (Kentucky) and HELP. The petitioners are 
the lead organizations in multi-State partnerships of public and 
private sector interests conducting a series of operational tests that 
fall within the Commercial Vehicle Operations (CVO) element of the 
Intelligent Transportation System (ITS) Program (formerly known as the 
Intelligent Vehicle-Highway Systems (IVHS) program). The ADVANTAGE I-75 
and HELP programs were created to allow commercial motor vehicles 
(CMVs) that are equipped with transponders and that comply with safety 
and administrative requirements to travel any segment of their 
respective instrumented highways at mainline speeds with minimal 
stopping at weight/inspection checkpoints.
    The AVI device proposed for use in both programs is an electronic 
transponder designed to send and receive signals from a CMV to ports of 
entry (POEs) and safety inspection sites. The devices would be used to 
transmit a variety of information, such as the identity of the motor 
carrier, the gross weight of the vehicle, and the status of the 
vehicle's registration and fuel tax payments. The transponder measures 
84 mm (3.3 inches) high by 112 mm (4.4 inches) wide by 38 mm (1.5 
inches) deep.
    In order to function effectively, the transponder must be able to 
properly transmit and receive signals from roadside receivers installed 
at States' ports of entry. The physical location of the transponder is 
a critical factor in its operation because of the potential for 
internal and external electronic interference. In addition, the device 
must be placed in a suitable location to allow drivers to read the 
instruction displayed on the transponder, i.e., to enter or to bypass 
the POE. An engineering evaluation performed by one of the ADVANTAGE I-
75 electronic equipment contractors determined that a location near the 
center of the upper border of the windshield best allowed the device to 
meet both of these requirements.
    However, 49 CFR 393.60(c) requires that no motor vehicle be 
operated with any label, sticker, decalcomania, or other vision-
reducing matter covering any portion of its windshield or windows at 
either side of the driver's compartment, except that stickers required 
by law may be affixed to the bottom of the windshield, provided that no 
portion of any label, sticker, decalcomania, or other vision-reducing 
matter may extend upward more than 114 mm (4.5 inches) from the bottom 
of the windshield. The requirements of Sec. 393.60, particularly the 
114 mm (4.5 inch) limit specified in Sec. 393.60(c), are independent of 
the physical dimensions of windshields.
    Section 206(f) of the Motor Carrier Safety Act of 1984 (49 U.S.C. 
31136(e), formerly 49 U.S.C. app. 2505(f)) authorizes waivers of any 
regulation issued under the authority of that Act upon a determination 
that the waiver is consistent with the public interest and the safe 
operation of commercial motor vehicles.
    The FHWA proposed to grant the waiver on October 12, 1994. The 
notice described the agency's review of automotive engineering 
recommended practices, the National Highway Traffic Safety 
Administration's Federal Motor Vehicle Safety Standards, and recent 
research concerning drivers' field of view. It also examined current 
CMV cab designs related to placement of interior mirrors and sunvisors 
which occupy approximately the same space proposed for the AVI 
transponder. Based on the information obtained from this review, the 
FHWA concluded that a transponder mounted at the approximate center of 
the top of the windshield would be extremely unlikely to create a 
situation inconsistent with the safe operation of a CMV. This location 
is well outside the area recommended for windshield wiper sweep under 
the Society of Automotive Engineers (SAE) Recommended Practice J198 
(Windshield Wiper Systems--Trucks, Buses, and Multipurpose Vehicles) 
and the area recommended for windshield defrosting under Recommended 
Practice J342 (Windshield Defrosting Systems Performance Guidelines--
Trucks, [[Page 12147]] Buses, and Multi-Purpose Vehicles). The findings 
of four recent research reports on the subject also suggested that the 
location of an object, such as a transponder device, near the upper 
margin of a CMV's windshield is unlikely to have any effect on a 
driver's ability to observe nearby objects, such as pedestrians.
    In addition, the FHWA believes that the public interest would be 
furthered by granting this waiver. Drivers whose CMVs are in compliance 
with registration, safety inspection, and operating requirements and 
permits may receive a signal from inspection officials to bypass ports 
of entry or inspection sites. This would have the effect of greatly 
improving inspection efficiency and effectiveness by enabling officials 
to focus their resources on vehicles with safety and size and weight 
infractions.

Discussion of Comments to the Docket

    The FHWA received five comments to the notice of petition. 
Advocates for Highway and Auto Safety (AHAS) opposed the windshield 
mounting location for the transponder and criticized the prior field 
activity under the ADVANTAGE I-75 ``alpha'' test. The Department of 
California Highway Patrol (CHP) supported the general concept of the 
waiver, but expressed concern with the windshield mounting location due 
to a potential conflict with its State regulations. The Illinois 
Department of Transportation, Heavy Vehicle Electronic License Plate 
(HELP), Inc., and the Commonwealth of Kentucky Transportation Cabinet 
commented in favor of the waiver.
    The AHAS stated its opposition to ``any action or item of equipment 
that might obstruct [the] view of CMV drivers,'' and added that ``[a]ny 
waiver that might pose an impediment to driver vision must be carefully 
scrutinized to assure that it is consistent with safety.'' ``It is 
axiomatic,'' it noted, ``that vision plays a central role in the 
driving task * * *.'' The AHAS believes the design of the transponder 
is inappropriate, and that the transponder hardware should be separated 
from the visual indicator provided for the driver.
    The AHAS stated that it ``might support the FHWA's proposal because 
of the small size of the transponder, and the fact that it will be 
placed at the top of the windshield and outside the general field of 
view of the driver.'' However, ``Advocates cannot support the 
transponder proposal at this time since there are unresolved issues 
regarding the necessity of placing the device on the windshield.'' The 
AHAS also asserted that the FHWA provided insufficient technical 
justification for the windshield mounting location. It dismissed the 
agency's reasoning as merely rationalizing the ``convenience'' of that 
location.
    The FHWA disagrees with the AHAS' assertions. The FHWA is required 
to evaluate the safety, not to regulate the design, of equipment for 
which a waiver is requested. The design is a product of the 
petitioners' engineering judgment. ADVANTAGE I-75 and HELP requested a 
waiver for tests of a device whose design had already been selected. 
The only issue was whether the placement of the AVI device would reduce 
motor carrier safety. The FHWA has fully considered that question.
    The FHWA requested, and has received, a copy of engineering notes 
from Delco Electronics documenting its assessment of alternate 
transponder mounting locations. A copy of the test report has been 
placed in the docket.
    Delco Electronics performed two tests of antenna pattern 
characterization to compare the strength of the signal received at the 
roadside reader. The first compared mounting locations at the lower-
right, upper-right, upper-left, and lower-left corners of the driver's 
side of the windshield. The second compared two alternate locations 
with the transponder attached to the windshield (upper-right and lower-
left corners of driver's side) with a third location utilizing a 
mounting bracket (upper-right corner of driver's side) that held the 
transponder just off the windshield. In both tests, the location at the 
upper-right corner of the driver's side of the windshield delivered a 
superior signal, as measured by relative attenuation in dBm [decibel-
milliwatts, a measurement of signal power on a logarithmic scale]. The 
signal from the upper-right driver's side windshield mounting location 
was as much as 10 dBm stronger compared to other locations and to the 
bracket-mounted alternative.
    For radio frequency (RF) devices to successfully perform their 
functions, their transmitted signals must be strong enough to reach 
their targets. The upper-right driver's side windshield mounting 
location appears to be the best among the several alternatives that 
Delco Electronics evaluated. The 10 dBm difference in the signal 
strength can be a key factor in facilitating the transponder's 
successful field implementation.
    As ITS matures, it is likely that technical advancements and 
competition among manufacturers will improve the packaging and reduce 
the size of transponders and other ITS devices. It is conceivable that 
future clearance transponders could be mounted in locations other than 
a CMV's windshield, and indicator lamps added to dashboard 
instrumentation, as the AHAS recommends in its comments.
    The FHWA believes that the AHAS' comments reflect a 
misinterpretation of the visibility issue. For example, the AHAS argued 
that the visible indicator was not necessary because the transponder 
would be hidden by a sunvisor. There is nothing in the notice that 
warrants that conclusion. Sunvisors are not always extended. The FHWA 
made the comparison between the vertical dimension of the transponder 
and that of sunvisors and sunshades in reference to a driver's useful 
field of view. The AHAS also questioned other technical issues 
regarding the transponder's placement without presenting research 
results comparable to those cited by the FHWA in support of the 
proposed waiver.
    In addition, the AHAS contended that the FHWA should have followed 
formal waiver procedures for the ADVANTAGE I-75 Alpha Test, rather than 
issuing an enforcement moratorium that had the same effect. The FHWA 
disagrees. The Alpha Test was merely a technical shakedown of AVI 
transponders on a small number of vehicles (up to 200) to ensure that 
the equipment would work properly during the operational Beta Test. 
This kind of fine-tuning could not be done with stationary vehicles. 
The Alpha Test was closely controlled and monitored by the FHWA's State 
partners, since the participating States and motor carriers needed to 
be aware of problems before starting the Beta Test. The FHWA simply 
allowed ADVANTAGE I-75 to complete this preparatory evaluation. As the 
agency and the ADVANTAGE I-75 States expected, no visibility problems 
caused by the transponders were reported.
    The Department of California Highway Patrol (CHP) did not object to 
the use of the transponder. It did, however, express a concern about 
the proposed mounting location: ``California law prohibits any object 
from being installed or affixed on any portion of the windshield except 
for * * * a 7-inch square in the lower corner of the windshield 
opposite the driver or in a 5-inch square in the lower corner of the 
windshield near the driver.'' The CHP provided a copy of the relevant 
regulation, California Vehicle Code Section 26708.
    California's regulation differs from Sec. 393.60(c). In the fall of 
1994, the FHWA notified the CHP, as the State's Motor Carrier Safety 
Assistance Program (MCSAP) grant recipient, that the regulation must be 
brought into conformance with the FMCSRs. The [[Page 12148]] FHWA is 
working with California to address this issue, and recommends that the 
CHP accept the terms of this waiver while efforts are ongoing by the 
State to seek a legislative change.
    The Illinois Department of Transportation (IDOT) strongly supports 
the waiver. The IDOT noted that windshield-mounted transponders are 
also being actively considered for automated toll collection and 
commercial vehicle [electronic] pre-clearance systems planned by 
Illinois and other States. The IDOT believes the waiver would not 
sacrifice truck safety, but would allow the transponders used in the 
programs to be positioned in vehicles so as to work more effectively.
    HELP, Inc. stated that it is working with Intelligent 
Transportation Systems technology to provide benefits to both motor 
carriers and weigh station controllers. HELP emphasizes the importance 
of the location of the AVI transponder to insure that transmitted 
signals are received properly. It noted that the proposed ``right 
center quadrant'' windshield location is similar to the standard 
location of an inside rear-view mirror, reducing the impact of reduced 
or obstructed driver views. HELP is also working with the CHP to 
implement a weigh station bypass service called PRE-PASS<SUP>TM which 
requires placement of the AVI transponder in that optimal location. 
Citing the CHP's comment to this docket, HELP notes that it is working 
with the CHP to draft legislation which will modify current California 
law to allow the AVI transponder to be mounted in this location. HELP 
strongly supports the proposed waiver and requests the FHWA's approval 
so that State governments and the motor carrier industry can proceed 
with implementing PRE-PASS<SUP>TM and gain improvements in 
transportation productivity and efficiency.
    The Commonwealth of Kentucky Transportation Cabinet (Kentucky), as 
lead State in the ADVANTAGE I-75 partnership, strongly supports the 
proposed waiver. Kentucky stated that over 200 trucks operated with the 
transponders for over a year. Staff from the Transportation Cabinet and 
the Kentucky Transportation Center rode in the trucks during testing, 
and also talked with drivers, dispatchers, maintenance personnel, and 
fleet managers. Kentucky became ``convinced that, when properly 
mounted, the transponder does not in any way obstruct the driver's view 
of the roadway. We have not had a single report of an incident or a 
concern relating to a transponder obstructing a driver's view.'' 
Kentucky goes on to state that

    Safety is a vital element of the ADVANTAGE I-75 project. The 
project is supported by Motor Carrier Enforcement Personnel in each 
of the participating states and province. We would not support any 
practice that we believed would compromise the safety of travelers 
on our nation's highways. Our support of the proposed waiver is 
based upon our conviction that the transponder does not obstruct the 
driver's vision or in any other way create a safety hazard. We 
invite those with strong concerns to visit one of our ADVANTAGE I-75 
sites and to climb into the cab of a transponder-equipped truck.

Conditions of the Waiver

    The conditions of the waiver proposed in the October 12, 1994, 
notice have been modified somewhat for the reasons set forth below.
    As an alternative to complying with the wiring requirements of 49 
CFR 393.27 and 393.33, the petitioners may, if they choose, comply with 
SAE Recommended Practice (RP) J1292, Automobile, Truck, Truck-Tractor, 
Trailer, and Motor Coach Wiring. The guidelines contained in RP J1292 
provide more comprehensive guidance and are equivalent to, and slightly 
more stringent than, Secs. 393.27 and 393.33 of the FMCSRs. The RP 
covers 3 areas. It cross-references the same RPs incorporated by 
reference in Sec. 393.27 (Wiring Specifications) for battery cable (SAE 
RP J1127) and for low-tension primary cable (SAE RP J1128). It cross-
references SAE RP J163, Low-tension wiring and cable terminals and 
splice clips, which is indirectly referenced in Sec. 393.33, Wiring 
[and] installation. The RP also requires wiring overload protective 
devices, fuses, or circuit breakers in this type of low-current 
application. While this last item is a slight change, the agency notes 
that the transponder's installation manual requires the power wire to 
be connected to the fused side of battery power, and states that a one-
amp in-line fuse may be added for additional protection.
    The duration and termination of the waiver discussed in Conditions 
III and VI have been changed so that the waiver shall remain in effect 
unless revoked by the FHWA. The grantees will be required to report the 
number of participating motor carriers and the number of transponder-
equipped CMVs. Removing the time limit on the waiver will enable the 
grantees to continue operating their programs, provided the reports 
submitted indicate that the transponders are not affecting the safe 
operation of CMVs.
    Condition VII now requires that the project reports be submitted 
within two years of the effective date of the waiver. A review after 
two years will enable the petitioners and the FHWA to assess a 
significant amount of data.
    Condition IV has been modified to recognize the potential for the 
existence of nonconforming State or local laws or regulations that may 
not have been brought to the FHWA's attention.
    Condition V of the October proposal would have limited the number 
of CMVs eligible for the waiver to 30,000. This restriction has been 
eliminated. Although that figure was a reasonable estimate of the 
number of participating vehicles, it would have required the 
petitioners to request adjustments to the ceiling, possibly more than 
once, if additional motor carriers wished to join the test program. 
Because the agency's review of the engineering standards and research 
on field of view discussed above indicated that use of the transponder 
would be very unlikely to create an unsafe operating situation, the 
FHWA has decided not to impose a numerical limit on the number of 
vehicles included in the program. However, both ADVANTAGE I-75 and HELP 
will be required to submit information on accidents involving the 
vehicles equipped with transponders, in accordance with Condition III.

I. Location of the Transponder

    The transponder shall be mounted at or near the top center of the 
windshield, outside the area swept by the CMV's windshield wipers, or, 
at a minimum, outside the driver's sight lines to the road and highway 
signs or signals.

II. Compliance With Wiring Requirements of the FMCSRs

    The installation of the transponder shall be required to comply 
with either (a) 49 CFR 393.27, Wiring specification, and 49 CFR 393.33, 
Wiring [and] installation, or (b) with SAE Recommended Practice J1292, 
Automobile, Truck, Truck-Tractor, Trailer, and Motor Coach Wiring.

III. Duration of Waiver; Accident and Incident Monitoring

    The waiver for HELP and ADVANTAGE I-75 is effective beginning April 
5, 1995. The waiver shall remain in effect indefinitely, unless revoked 
by the FHWA.
    Motor carriers participating in ADVANTAGE I-75 and HELP shall 
provide the FHWA with information on accidents (as defined in 49 CFR 
390.5) involving the vehicles equipped with the transponders. Accident 
reports shall be submitted every 6 months, and shall contain the 
information listed below: [[Page 12149]] 
    1. A copy of all accident reports prepared and required by State or 
other governmental entities or insurers.
    2. Interview information with the driver and occupants of the CMV 
involved. The information shall specifically indicate whether the 
driver of the transponder-equipped vehicle believed that the presence 
of the transponder was a factor in the accident. The interview shall be 
conducted by a motor carrier employee responsible for supervising the 
driver of the transponder-equipped vehicle.

IV. State and Local Laws

    This waiver applies to all participating vehicles operating in 
interstate commerce. Although incompatible State laws or regulations 
perhaps cannot be changed to coincide with the start of the waiver 
period, the FHWA strongly encourages State and local authorities with 
safety regulations that would prohibit the use of the proposed 
transponders to accept the terms and conditions of this waiver.

V. Vehicles To Be Equipped With Transponders

    The names and USDOT numbers of the motor carriers participating in 
the ADVANTAGE I-75 and HELP programs, as well as the number of 
transponder-equipped CMVs operated by each carrier, shall be provided 
to the FHWA. Motor carriers not participating in these programs may not 
equip straight trucks, tractors, or motor coaches with the transponders 
discussed in this waiver.

VI. Termination of Waiver

    The FHWA may terminate this waiver at any time without prior 
warning if it determines that continued use of the transponders 
decreases the operational safety of the vehicles on which they are 
installed. Upon receipt of a notice of termination, motor carriers 
participating in the ADVANTAGE I-75 and HELP projects must immediately 
remove the transponders from their vehicles.

VII. Report

    ADVANTAGE I-75 and HELP shall provide separate reports describing 
the transponder's installation and use within two years after the 
effective date of the waiver. The reports shall include information 
obtained from the drivers on the device's effect on visibility through 
the windshield.
    The FHWA has fully considered the information presented in the 
request for waiver, engineering and other technical material reviewed 
concerning requirements for visibility from vehicles, and the comments 
received. The FHWA hereby concludes that the waiver is consistent with 
the public interest and the safe operation of commercial motor 
vehicles. Accordingly, the FHWA hereby grants the Commonwealth of 
Kentucky and Heavy Vehicle Electronic License Plate, Inc., their 
petition for a waiver from the requirements of 49 CFR 393.60(c).

    Authority: 49 U.S.C. 31136, 31502; 49 CFR 1.48.

    Issued on: February 21, 1995.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 95-5323 Filed 3-3-95; 8:45 am]
BILLING CODE 4910-22-P