[Federal Register: March 31, 1999 (Volume 64, Number 61)]
[Rules and Regulations]
[Page 15587-15606]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr99-17]



[[Page 15587]]

_______________________________________________________________________

Part IV

Department of Transportation

_______________________________________________________________________

Federal Highway Administration

_______________________________________________________________________

49 CFR Part 393

Parts and Accessories Necessary for Safe Operation; Lighting Devices,
Reflectors, and Electrical Equipment; Final Rule

[[Page 15588]]

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 393

[FHWA Docket No. MC-94-1; FHWA-1997-2222]
RIN 2125-AD27


Parts and Accessories Necessary for Safe Operation; Lighting
Devices, Reflectors, and Electrical Equipment

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The FHWA is amending the Federal Motor Carrier Safety
Regulations (FMCSRs) to 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 FHWA is requiring that motor
carriers install retroreflective tape or reflex reflectors within two
years of the effective date of this rule. The agency is 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 this rule, but is requiring that all older trailers be equipped
with conspicuity treatments identical to those mandated for new
trailers at the end of the 10-year period. The locations at which the
retroreflective tape or reflex reflectors must be applied to trailers
during the phase-in period is specified. This rulemaking is intended to
help motorists detect trailers at night and under other conditions of
reduced visibility, thereby reducing the incidence of passenger
vehicles colliding with the sides or rear of trailers.

DATES: The effective date for this rule is June 1, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Motor
Carrier Research and Standards, HCS-10, (202) 366-4009; or Mr. Charles
E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354,
Federal Highway Administration, 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:

Electronic Access

    Internet users can access all comments that were submitted to the
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-001, in response to previous rulemaking notices
concerning the docket referenced at the beginning of this notice by
using the universal resource locator (URL): http://dms.dot.gov. It is
available 24 hours each day, 365 days each year. Please follow the
instructions online for more information and help.
    An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Federal Register
Electronic Bulletin Board Service at (202) 512-1661. Internet users may
reach the Federal Register's home page at http:// www.nara.gov/fedreg
and the Government Printing Office's database at: http://
www.access.gpo.gov/nara.

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.

Summary of the NHTSA Rulemaking

    The NHTSA issued an advance notice of proposed rulemaking (ANPRM)
on May 27, 1980, requesting comments on methods to reduce the incidence
and severity of collisions between passenger cars and large trailers
during conditions of darkness or reduced visibility (45 FR 35405). The
use of retroreflective materials was considered a possible solution.
    Between 1980 and 1985, the NHTSA conducted a fleet study in which
retroreflective material was placed on van-type trailers in a manner
designed to increase their conspicuity during conditions of darkness or
reduced visibility. The treatment of the trailers consisted of
outlining the rear perimeter, and delineating the lower sides with
retroreflective tape. The authors of the study concluded that truck-
trailer combinations equipped with retroreflective material were
involved in 15 percent fewer accidents (in which a trailer was struck
in the side or rear by a passenger car at nighttime) than combinations
that were not equipped with the material. This research is documented
in the following research reports: ``Improved Commercial Vehicle
Conspicuity and Signaling Systems, Task I--Accident Analysis and
Functional Requirements,'' March 1981 (DOT HS 806-100); ``Improved
Commercial Vehicle Conspicuity and Signaling Systems, Task II--
Analyses, Experiments and Design Recommendations,'' October 1981, (DOT
HS 806-098); and, ``Improved Commercial Vehicle Conspicuity and
Signaling Systems, Task III--Field Test Evaluation of Vehicle
Reflectorization Effectiveness,'' September 1985 ( DOT HS-806-923). A
copy of each of the reports is in the docket.
    On September 18, 1987, the NHTSA published a notice discussing the
results from the fleet study and requesting comments on the research as
well as information from motor carriers about their experiences using
reflective material to enhance conspicuity (52 FR 35345).
    In response to the NHTSA fleet study, Congress included in the
Motor Carrier Safety Act of 1990 (Pub. L. 101-500, 104 Stat. 1218), a
provision directing the Secretary of Transportation (Secretary) to
initiate a rulemaking on the need to adopt methods for making
commercial motor vehicles more visible to motorists. The rulemaking was
required to begin no later than February 3, 1991, and to be completed
no later than November 3, 1992.
    Between March 1990 and September 1991, the NHTSA conducted
additional research on trailer conspicuity. The purpose of the research
program was to define a range of minimally acceptable large truck
conspicuity enhancements that could be used as a basis for developing
Federal regulations. A number of laboratory and field studies were
carried out to assess the value of using a pattern of retroreflective
sheeting, the form the pattern should take, the placement of the
treatment on the trailer, the effect of retroreflective markings on the
detection and identification of stop and turn signals, and the trade-
off between the width and retroreflective intensity of the treatment

[[Page 15589]]

material. In addition, field surveys were conducted to assess the
effect of environmental dirt on the performance of the marking systems
and the durability of retroreflective materials when used on commercial
motor vehicles.
    The final report for the research conducted between 1990 and 1991
(``Performance Requirements for Large Truck Conspicuity Enhancements,''
March 1992, (DOT HS 807 815)) includes recommendations that the
retroreflective tape be at least two inches in width, applied in a red
and white pattern (continuous or broken strip) along the bottom of the
trailer on the sides, with a continuous strip along the bottom of the
rear of the trailer. The authors also recommend white corner markers at
the top of trailers. In addition, the report provides recommendations
concerning minimum retroreflectivity levels, taking into account the
effects of environmental dirt, aging, and orientation of the marked
vehicle. A copy of the final report is in the docket.
    On December 4, 1991, the NHTSA published a notice of proposed
rulemaking (NPRM) based upon the research conducted between 1990 and
1991 (56 FR 63474). The NHTSA considered its NPRM, which was part of a
rulemaking initiated before the enactment of the Motor Carrier Safety
Act of 1990, to be responsive to the congressional mandate and its
December 10, 1992, final rule as the completion of the rulemaking
mandated by Congress.

Current FHWA Requirements for Trailer Conspicuity

    The FHWA is responsible for establishing standards for commercial
motor vehicles operated in interstate commerce. Commercial motor
vehicles subject to the FMCSRs must meet the requirements of 49 CFR
parts 393 (Parts and Accessories Necessary for Safe Operation) and 396
(Inspection, Repair, and Maintenance). The requirements for lamps and
reflective devices are contained in Secs. 393.11 through 393.26.
    Section 393.11 of the FMCSRs requires that all lighting devices on
commercial motor vehicles placed in operation after March 7, 1989, meet
the requirements of FMVSS No. 108 in effect at the time the vehicle was
manufactured. Therefore, trailers manufactured on or after December 1,
1993, the effective date of the NHTSA requirement for retroreflective
tape or reflex reflectors, must have retroreflective tape or reflex
reflectors of the type and in the locations specified in FMVSS No. 108
in order to comply with the FHWA's requirements.
    On April 14, 1997, the FHWA published a notice of proposed
rulemaking in which the agency proposed general amendments to part 393
of the Federal Motor Carrier Safety Regulations (FMCSRs), Parts and
Accessories Necessary for Safe Operation (62 FR 18170). The proposed
amendments covered a wide range of topics, including conspicuity
treatments on trailers manufactured on or after December 1, 1993. To
make certain that all motor carriers operating trailers subject to the
FMCSRs are aware of their responsibility to maintain the conspicuity
treatment, the FHWA proposed the addition of detailed language under
Sec. 393.11. The FHWA would cross-reference the specific paragraphs of
FMVSS No. 108 related to the applicability of NHTSA's trailer
conspicuity standards, the required locations for the conspicuity
material, and the certification and marking requirements.

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
requires 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 must 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 final rule being adopted today
fulfills the requirements of the TEA-21.

Discussion of Responses to the NPRM

    The FHWA received 700 comments in response to the NPRM. The
strongest voice of support came from concerned citizens--a total of 652
responses. The FHWA received 549 responses from the Amy Elizabeth
Corbin Foundation for the Promotion of Highway Safety, an organization
established in memory of an 18-year old who was killed in a collision
with a tractor-semitrailer that blocked the road as the truck driver
was making a turn across a highway. Another 72 responses were on behalf
of Stacey Balascio, a 24-year old passenger who died when the car she
was riding in struck the rear of a parked tractor-semitrailer. The FHWA
received several letters from the family and friends of Carl Hall, who
was killed in a collision with a tractor-semitrailer that blocked the
road as the truck driver backed the vehicle into a driveway. The
remaining comments from concerned citizens included letters from
families and friends of other accident victims, survivors of collisions
between passenger cars and tractor-semitrailer combination vehicles,
and individuals who saw a recent network television news program that
discussed the FHWA's rulemaking concerning trailer conspicuity.
    As indicated in the preamble to the NPRM, the FHWA has the greatest
sympathy for the losses suffered by these respondents. The goal of this

[[Page 15590]]

rulemaking is to reduce the number of such accidents, but rules must be
based on consideration of evidence and data submitted. Since these
commenters did not include information concerning technical or economic
aspects of retrofitting trailers with conspicuity treatments, the
remainder of this preamble will focus on those issues. The agency,
however, has not ignored the concerns of those whose tragic personal
experiences led them to support this rulemaking.
    In addition to concerned citizens, the FHWA received comments from
15 members of Congress. The agency received letters from Senators
Edward M. Kennedy, John F. Kerry, Rick Santorum, and Arlen Specter. The
agency received comments from the following members of the House of
Representatives: William D. Delahunt; Barney Frank; James C. Greenwood,
Joseph P. Kennedy, II; Edward J. Markey; James P. McGovern; Martin T.
Meechan; John Joseph Moakley; Richard E. Neal; John W. Olver; and John
F. Tierney. All of the members of Congress who submitted comments in
response to the NPRM supported the rulemaking and encouraged the FHWA
to expedite the issuance of the final rule.
    The specific concerns or issues raised by the commenters that
discussed technical or economic issues are discussed in the following
sections.

General Comments Concerning Technical and Economic Issues

    The agency received comments from 3M; Advocates for Highway and
Auto Safety (Advocates); American Association of Motor Vehicle
Administrators (AAMVA); American President Lines, Ltd. (APL); the
American Trucking Associations, Inc. (ATA); the Canadian Council of
Motor Transport Administrators (CCMTA); Citizens for Reliable and Safe
Highways (CRASH); the Commercial Vehicle Safety Alliance (CVSA);
Farmland Industries, Inc.; Georgia Public Service Commission; GROWMARK,
Inc.; the Insurance Institute for Highway Safety (IIHS); the
International Association of Chiefs of Police (IACP); National
Association of Governors' Highway Safety Representatives (NAGHSR);
National Automobile Dealers Association (NADA); the National Private
Truck Council (NPTC); the National Sheriff's Association; the National
Tank Truck Carriers, Inc. (NTTC); David L. Narkiewicz; Northland
Insurance Companies; the Owner Operator Independent Drivers
Association, Inc. (OOIDA); Parents Against Tired Truckers (PATT);
Reflexite; Salisbury Area Chamber of Commerce; Sate-Lite; Shannon &
Peters, Attorneys at Law; S.O.S. Transportation, Inc.; Transport
Canada; the Transportation Safety Equipment Institute (TSEI); the
Underride Network; XTRA Corporation (XTRA); and Yellow Corporation
(Yellow).
    Generally, almost all of the commenters supported the concept of
using conspicuity treatments of some form to help motorists detect
trailers at nighttime and under other conditions of reduced visibility.
However, almost all of the commenters believed the agency's proposal
would either provide the motor carrier industry with too much
flexibility (e.g., allowing the use of alternative colors during the
proposed transition period), or not provide the motor carrier industry
with enough time to comply with the rule (e.g., requiring that the
industry complete the retrofitting within two years of the effective
date, and mandating the use of red and white conspicuity treatments 10
years after the effective date of the rule).

Accident Data

    The ATA, CRASH, and Yellow provided comments about accident
statistics concerning passenger cars striking the sides and rear of
semitrailers and trailers. The ATA and Yellow argued that there is
insufficient data to support the FHWA's rulemaking and to assess the
effectiveness of the NHTSA's requirements for trailers manufactured on
or after December 1, 1993. CRASH believes the FHWA's analysis of
accident data may have resulted in the agency underestimating the
safety benefits of the conspicuity retrofitting rule.
    Yellow stated:
    In evaluating the effectiveness of the proposed retrofit program
we do not agree with FHWA that there is sufficient safety data to
support the requirement to retrofit pre-1993 trailers. Since the
early 1990's Yellow has been concerned with the visibility of our
trailer fleet. We have taken steps to improve the safety of these
vehicles by utilizing white trailers, placing reflective unit
numbers on the nose and rear of each unit and recently side logos
with company identification.
    These safety features have improved the visibility of all
trailers, yet we find no clear evidence that trailers equipped with
additional conspicuity tape have fewer accidents. Nighttime
accidents involving passenger cars and trailers have numerous
contributing factors. We [cannot] mitigate the fact that automobiles
do strike commercial vehicles through the use of conspicuity tape.
    While the rulemaking recognizes certain existing conspicuity
applications, it does not give full credit to other reflective
application that provides improved visibility, yet fails to meet the
NHTSA standards. The adage of ``one size fits all'' is not
responsive to current trailer application such as corporate logos,
trailer color or trailer types. A van trailer does not have the
visibility problems as say a flatbed trailer. FHWA, in relying on
safety to support the need for retroreflective tape applications,
has not fully taken into consideration differing types of trailers,
current reflective applications and trailer colors in its proposed
rulemaking.

    The ATA stated:

    All new trailers built after December 1, 1993, have had to
incorporate either red and white striped tape or strip reflectors on
their sides and rear. This means that every new trailer placed on
the highway in 1994 and 1995 incorporates such markings. Moreover,
the total portion of such vehicles in the national trailer fleet is
growing year-by-year. Yet the FARS data quoted in the docket shows:

                                       Nighttime Car Into Truck Collisions
----------------------------------------------------------------------------------------------------------------
                            FARS data                                  Side            Rear            Total
----------------------------------------------------------------------------------------------------------------
1994............................................................             119             173             292
1995............................................................             115             200             315
----------------------------------------------------------------------------------------------------------------

    The data seems to indicate 8 percent more fatal accidents
happened the second year after adding reflective materials to new
trailers. Given that the statistics are for the first two years
following the mandate of the new requirements and the sample is
extremely small, the proper interpretation may be that there has
been no difference. As tragic as they are, these are small numbers.
With such a little universe, it will always be hard to show results
with statistical significance.
    To put the totality of car striking trailer accidents into
further perspective, consider that in 1996 there were around 4.3
million registered commercial trailers. That same year there were
364,000 total collisions involving trucks. These incidents included
both trucks and trailers and they occurred at all hours. If we say
they only applied to trailers and divide the two figures together;
we can conservatively project a collision involvement for any
specific trailer of once every 12 years.

[[Page 15591]]

    The point of these examples is that there is very little
likelihood of any given trailer being involved in an accident. . . .

    Citizens for Reliable and Safe Highways believes there is
sufficient data to support the FHWA's conspicuity retrofitting
rulemaking but indicated the agency underestimated the safety benefits
of the rulemaking. CRASH stated:

    In fact the projected safety benefits of trailer conspicuity
material that meets the NHTSA requirement are too low because many
rear and side underride crashes caused by truck invisibility are not
reported as such. Previous to 1994, FARS [Fatality Analysis
Reporting System] coded only catastrophic underride crashes with
passenger compartment intrusion as ``underride.'' In 1994 the
National Center for Statistics and Analysis (NCSA) within NHTSA
changed FARS so that it would include underride without passenger
compartment intrusion in the data elements. However, according to
Insurance Institute for Highway Safety (IIHS), ``these crashes are
still being substantially undercounted.'' IIHS has shown that FARS
reflects only a small portion of the fatal underride crashes
recorded in independent databases such as NASS and CDS. A comparison
of IIHS's estimated 248 rear fatal underride crashes each year from
1988 to 1993 to NHTSA's estimate of 60 shows that FARS is
undercounting rear underride fatalities by a factor of 4. The
National Center for Statistics and Analysis has, ``examined and
confirmed the assertions made by IIHS.'' The benefits of taping
trailers are higher than estimated by the FHWA.

    The FHWA disagrees with the ATA's and Yellow's assertions that the
magnitude of the problem does not warrant mandating the retrofit of
semitrailers and trailers manufactured before December 1, 1993. The
FHWA has reviewed data from the NHTSA's FARS and General Estimates
System (GES) for 1993 through 1997, and the data suggests that
motorists have trouble detecting semitrailers and trailers at
nighttime. The nighttime incidence of passenger vehicles colliding with
combination vehicles has fluctuated from 1993 through 1997, but a
significant number of these collisions occurred each year.

                             Nighttime Car Into Combination Vehicle Fatal Collisions
----------------------------------------------------------------------------------------------------------------
                            FARS data                                  Side            Rear            Total
----------------------------------------------------------------------------------------------------------------
1993............................................................             119             222             341
1994............................................................             119             173             292
1995............................................................             115             200             315
1996............................................................             118             170             288
1997............................................................             127             198             325
----------------------------------------------------------------------------------------------------------------

   Estimate of Number of Nighttime Car Into Combination Vehicle Collisions With a Non-Fatal Injury or Property
                                                   Damage Only
----------------------------------------------------------------------------------------------------------------
                            GES data                                   Side            Rear            Total
----------------------------------------------------------------------------------------------------------------
1993............................................................           3,032           2,594           5,626
1994............................................................           3,546           3,154           6,700
1995............................................................           2,331           2,443           4,774
1996............................................................           3,690           2,561           6,251
1997............................................................           3,053           2,086           5,139
----------------------------------------------------------------------------------------------------------------

    The FHWA believes the ATA's comments about the accident statistics
are misleading. Because of the year-to-year fluctuations shown in the
preceding tables it is inappropriate to attempt, at this time, to draw
conclusions from the FARS and GES data on the effectiveness of the
NHTSA's requirements for conspicuity treatments. In addition,
consideration must be given to factors such as the percentage of the
U.S. fleet of semitrailers and trailers equipped with conspicuity
treatments that conform to the NHTSA requirements, the percentage of
vehicles equipped with some other form of conspicuity treatment, and
the percentage of vehicles that are not equipped with retroreflective
sheeting or reflex reflectors.
    The agency notes that 1994 is the first full calendar year in which
all new semitrailers and trailers were required to be equipped with
conspicuity treatments. The preamble to the NPRM indicated that an
estimated 2.1 million trailers and semitrailers were being operated in
interstate commerce as of January 1994.
    The agency estimates that there are approximately 2.56 million
semitrailers and trailers currently in operation. By January 1, 2001,
that figure will increase to approximately 2.69 million as 480,000 new
semitrailers and trailers are added to the fleet and 350,000 of
vehicles are retired from revenue service. Approximately 1.6 million of
these semitrailers and trailers were manufactured after December of
1993, and are, therefore, already equipped with conspicuity treatments.
The remaining 1.02 million trailers were manufactured before December
1, 1993. The FHWA estimates that 20 percent of these trailers already
have conspicuity treatments . Therefore, approximately 815,000 trailers
will have to be retrofitted within two years.
    Although the ATA indicated in its comments that as of 1996 there
were 4.3 million commercial trailers registered in the United States,
the FHWA believes this figure greatly exceeds the actual number of
semitrailers and trailers operated by interstate motor carriers, and is
far in excess of the number of trailers that would be subject to this
rule.
    The FHWA acknowledged in both its preliminary and final regulatory
evaluations that there is uncertainty about the exact number of
trailers in use. According to the agency's publication ``Highway
Statistics 1994'' (FHWA-PL-95-042) 4.12 million commercial trailers and
semitrailers were registered in 1994; ``Highway Statistics 1997''
(FHWA-PL-98-020) indicates 4.45 million commercial trailers and
semitrailers were registered in 1997. However, some States do not
require annual registration of trailers and some States do not send
their figures to the FHWA. The FHWA must estimate the number of
trailers in these States.
    In addition, States appear to have different definitions of
commercial trailers, which could result in the inclusion of
semitrailers and trailers exempt from the retrofitting requirements.
Another consideration is

[[Page 15592]]

that many semitrailers are used as offices or in other non-highway
capacities. Finally, only semitrailers and trailers operated by motor
carriers in interstate commerce are subject to this regulation. State
registration data does not generally distinguish between semitrailers
and trailers operated in interstate commerce and those operated in
intrastate commerce.
    Because of shortcomings of the registration data, the FHWA based
its estimate of the number of trailers in operation on the average life
of trailers, and trailer production data. The NHTSA's final regulatory
evaluation estimated that the average trailer has a useable service
life of approximately 14 years. Tank trailers are both more expensive
and sturdier than other types of trailers, and they have a useful life
of approximately 20 years.
    Based upon the Census Bureau's Current Industrial Reports data on
the number of trailers sold in the United States, and the average
useful service life estimates, the FHWA estimates that 2.69 million
semitrailers and trailers will be in use by the year 2001. However,
more than half of these semitrailers and trailers will be manufactured
after 1993 and will already be equipped with retroreflective sheeting.
The agency believes 815,000 pre-1994 semitrailers and trailers will
still be in use and have to be retrofitted. Therefore, the FHWA does
not agree with the ATA's estimate of the number of trailers in
operation in the U.S., and considers its estimate of the probability of
any given trailer being involved in a visibility-related accident to be
based upon an incomplete analysis.
    The FHWA has considered the number of new semitrailers and trailers
placed in operation each year and believes they constitute less than 10
percent of the total population of such vehicles during a given year.
Since 1994 through 1998 are the only complete calendar years during
which new semitrailers and trailers were equipped with conspicuity
treatments, and since the average useful service life of a trailer is
14 years (approximately 20 years for cargo tank trailers), there is a
significant population of semitrailers and trailers in operation today
that were not subject to the NHTSA requirements for conspicuity
treatments at the time of manufacture. While some of these vehicles may
have been voluntarily retrofitted or removed from revenue service, the
agency believes that most of these vehicles currently do not have
conspicuity treatments that would satisfy the requirements being
adopted today. Therefore, this rulemaking is needed to ensure that
older trailers are retrofitted with conspicuity treatments to reduce
significantly the incidence of passenger vehicles colliding with
combination vehicles at nighttime and under other conditions of reduced
visibility.
    With regard to Yellow's comments about using white trailers,
reflective unit numbers on the nose and rear of trailers, and
reflective corporate logos, the FHWA does not consider these steps to
be a sufficient response to the problem of motorists colliding with
semitrailers and trailers at nighttime and under other conditions of
reduced visibility. The FHWA is not aware of research that quantifies
the safety benefits of retroreflective logos on the sides and rear
commercial motor vehicles, or that identifies a correlation between
trailer color and the incidence of passenger vehicles colliding with
combination vehicles.
    The FHWA considers Yellow's evaluation of its program to prevent
nighttime collisions inconclusive since no data or detailed information
was provided in support of the statements. The information that needs
to be evaluated includes: the total number of trailers operated; the
total number of trailers on which these countermeasures were in use;
daytime and nighttime exposure data (miles traveled with a distinction
between urban and rural roads) for the trailers that have the
countermeasures and trailers that do not; the color of the trailers;
and the colors and sizes of the logos. The before-and-after accident
experience should also be examined. Yellow did not indicate that this
type of information was collected and analyzed, or that such
information would be made available for review by the FHWA.
    As for CRASH's comment about the FHWA underestimating the safety
benefits of the rulemaking, the FHWA considers debates about the total
number of rear and side underride accidents to have little if any
relevance to this rulemaking. The FHWA examined the FARS and GES data
to gather information on the total number of accidents per year in
which a passenger vehicle struck the side or rear of a combination
vehicle. The agency did not attempt to estimate the number of these
accidents in which underride occurred, or in which a portion of the
commercial motor vehicle penetrated the passenger compartment, because
accidents involving side and rear underride are included in the larger
set of data concerning collisions with the sides and rear of
semitrailers and trailers. While a detailed analysis of side and rear
underride accident data would be appropriate if the FHWA's rulemaking
concerned side or rear impact guards intended to reduce the incidence
(daytime and nighttime) of passenger compartment intrusion during
underride accidents, this type of analysis is not necessary for a
rulemaking intended to reduce the incidence of passenger vehicles
striking semitrailers and trailers by increasing their visibility.

Disagreement with NHTSA's Research Findings

    The ATA, CCMTA, and Transport Canada disagreed with the NHTSA
research reports cited by the FHWA in the preamble to the NPRM. The ATA
does not believe the research proved the effectiveness of conspicuity
treatments, and all three commenters believe the research did not
provide justification for the selection of the red-and-white pattern
for conspicuity treatments. The ATA stated:

    The preamble [to the NPRM] makes several references to the
National Highway Traffic [Safety] Administration tests of
conspicuity enhancement. FHWA noted there was no questioning of
results of these tests. This is incorrect. The methods, sample sizes
and conclusions of the tests have all been disputed. Since there was
discussion of NHTSA's research at the time the agency made changes
to FMVSS 108, no further critique appeared necessary for this
proceeding. The purpose of FHWA's NPRM is not to change FMVSS 108.
    However, FHWA raised the issue of NHTSA's test program in the
preamble to this NPRM. Because there were implications that this
work was unchallenged and establishes a need for retrofitting, we
will review its past criticisms.
    NHTSA ran two types of experiments that led to its selection of
the horizontal, red and white stripe conspicuity enhancement
requirements in Federal Motor Vehicle Safety Standard (FMVSS) 108.
They conducted laboratory and field tests to find what patterns
people could identify as trailers. There was also an on-highway
evaluation to see if the patterns selected from the laboratory tests
would have an impact on accident rates.
    Inadequate sample size was a criticism of both types of
experiments. There were questions of the laboratory and field tests
because they did not contain enough persons from a wide cross
section of drivers. The use of too few vehicles for too short a time
in too few operations resulted in the statistical significance of
the on-highway evaluations being assailed. The criticisms called
into question such things as the impact of the so-called ``moth
effect'' and if there were more effective markings.

    The ATA cited research performed in Canada as a part of its
rationale for disagreeing with the NHTSA's research recommendations for
the use of the red-and-white pattern. The ATA stated:

[[Page 15593]]

    Subsequent testing done in Canada indicated that NHTSA's
selected red and white markings were quite inferior to all-white
patterns. The Transportation Group of the University of New
Brunswick conducted this work titled ``Effectiveness of Heavy Truck
Conspicuity Treatments Under Different Weather Conditions.'' NHTSA
did not specifically study the red and white patterns under various
weather conditions as did New Brunswick. This work alone opens the
question of whether NHTSA selected the optimum conspicuity
treatment.

    The ATA believes the researchers' recommendations for the use of a
red-and-white pattern resulted in the establishment of manufacturing
standards that were contrary to long-standing principles regarding the
use of red reflective material on the sides of commercial motor
vehicles. The ATA stated:

    Until NHTSA's requirement for side mounted red and white strips
of reflective markings, red mandated devices only faced the rear of
a vehicle. FHWA established red-means-rear because it helps
approaching drivers define the truck's direction of travel. Under
inclement conditions, such as approaching a foggy intersection, this
visual clue can be very important.
    In establishing a red and white pattern of reflective materials
for both the sides and rear of a trailer, NHTSA destroyed the long
held convention established by FHWA. Given their action on red,
side-facing markings, we find it surprising that NHTSA believes
strongly in the effectiveness of standardized reflectorized colors
and patterns. The agency certainly showed no qualm about changing a
FHWA created and maintained convention that enabled drivers to know
they were facing the rear of a vehicle.
    NHTSA is still studying the effectiveness of its trailer
conspicuity requirements. The agency is conducting an accident
review in two states to gain insight on the involvement of marked
and unmarked trailers. Florida began collecting information for this
study in July and Pennsylvania started in December of 1997. The
scheduled completion for this work is in September of 2000.
Presently those involved indicate it is much too early to draw any
conclusions.
    One can conclude that NHTSA did research before changing FMVSS
108 to require conspicuity markings. There are still questions on
whether the colors and configurations selected were correct. This
calls into question the need to retrofit all trailers in the manner
proposed by this docket.

    Transport Canada and the Canadian Council of Motor Transport
Administrators expressed concerns about the FHWA's proposal to mandate
the use of red-and-white conspicuity treatments at the end of the 10-
year transition period, citing Canadian research concerning
conspicuity. Transport Canada provided a copy of ``The Perceptual Basis
of Heavy Vehicle Conspicuity and the Role of Retroreflective Materials
In Increasing Driver Decision Sight Distances' prepared by Carleton
University of Ottawa, Ontario, in support of its position. Transport
Canada stated:
    [Canadian Motor Vehicle Safety Standard (CMVSS) No. 108]
requires a red and white stripe on the rear underride guard in order
to provide a red marking to identify the rear of the vehicle.
Research conducted for Transport Canada by Carleton University,
described in the enclosed report, showed that all-white markings are
more effective and are visible at greater distances than the red and
white pattern. Although the research did not specifically
investigate yellow material, the Canadian regulation included yellow
material as an option because the effectiveness of yellow material
exceeds the average of the red and white material, and yellow is
widely recognized as a warning colour.

    The FHWA considers the NHTSA's research results to be reliable
indicators of the potential safety benefits of the use of
retroreflective materials in preventing passenger cars from crashing
into the sides or rear of trailers. As the FHWA indicated in the
preamble to the NPRM, it is very important to note that the authors of
the NHTSA's research reports acknowledged that an ``emphasis was placed
on deriving an improved and practical pattern, rather than some optimum
pattern.'' While it is true that an ``optimum pattern'' --optimum for
visibility, but not necessarily for hazard recognition--could differ
from the pattern required by the NHTSA for new semitrailers and
trailers, the FHWA supports the NHTSA selection of the red-and-white
pattern as the standard for conspicuity treatments and is requiring
older trailers to be equipped with this pattern at the end of the 10-
year transition period. The agency believes highway safety will be
improved by putting into place a deadline that will discourage motor
carriers from retrofitting their vehicles with colors other than red
and white, and will ensure that all semitrailers and trailers operated
in the United States are equipped with the standard conspicuity
treatment within 10 years of the effective date of this rule.
    The FHWA has discussed this subject with NHTSA and fully
understands that the principal reason for NHTSA's requirement of a red-
and-white pattern was to make the reflective image on the side of a
trailer recognizable to motorists. Since the side conspicuity treatment
consists of a single line of material, a distinct color pattern, less
ambiguous than solid white or yellow, was established so that motorists
would learn to associate it with trailers. A red-and-white pattern was
chosen because it was already commonly associated with danger. This
color combination is widely recognized and associated with highway
hazard warning signs, such as, stop signs and railroad grade crossing
gates.
    The FHWA has reviewed the Carleton University research report cited
by Transport Canada and does not believe it requires a result different
from the one announced in this final rule. Alternative markings, though
highly visible, do not convey the same message or warning as two-color
markings. The FHWA believes the methodology used in the NHTSA research
was acceptable for the stated objectives of the research, and that the
conclusions and recommendations in the reports were appropriate based
upon the work performed.
    It is unlikely that any single research program concerning
conspicuity would result in conclusions and recommendations acceptable
to all interested parties. Citing differences between United States,
Canadian, and European researchers' methodology and opinions does not,
in and of itself, disprove the results of the NHTSA research that the
FHWA has cited in support of this rulemaking. None of the commenters to
this rulemaking docket have identified flaws in the research
methodology for the work performed between 1980 and 1985, or the work
performed between 1990 and 1991. Therefore, in the absence of
substantive information or data that would call into question the
conclusions and recommendations presented in the NHTSA research
reports, the agency is issuing the final rule consistent with the NHTSA
requirements for new vehicles.

Allowing Motor Carriers Flexibility in the Use of Alternative Colors

    A number of commenters disagreed with the FHWA's proposal to allow
motor carriers to use colors or color combinations other than red and
white during a 10-year transition period beginning on the effective
date of the rule. The AAMVA stated:

    [O]ur main concern with the proposed rule is its allowance of
non-standard colors for reflective materials. Many states require
red or amber reflective material on the sides of trailers, and allow
only red reflective material on the rear, unless provided for
elsewhere in federal law. We are especially concerned about those
carriers that may incorporate blue or green reflective material, as
these colors are commonly reserved by states for the exclusive use
of police, fire and ambulance vehicles.
    In addition the Motor Vehicle Safety Act (Canada) permits the
use of conspicuity markings with colors other than those permitted
by FMVSS 108. The final rule should permit the operation of Canadian

[[Page 15594]]

trailers which are in compliance with Canada Motor Vehicle Safety
Standard (CMVSS) 108, as it pertains to conspicuity markings,
regardless of the year of manufacture of the trailer.
    In all cases where retrofitting has been or will be performed,
the final rule should encourage, in the strongest language possible,
ONLY the use of colors that comply with FMVSS 108 or CMVSS 108.
However, for the locations specified by the final rule, the use of
blue and green reflective material should be expressly prohibited.
For older trailers not already retrofitted, this means that the
addition of these two colors would not be allowed. For older
trailers that have been retrofitted, we believe that the final rule
should require removal of blue and green reflective material within
two years of the effective date of the final rule, to be replaced
with colors otherwise allowed.

    The Advocates stated:

    Advocates strongly opposes the agency's decision to allow
substantial deviations from the NHTSA requirements for tape and
reflector colors, sizes, and locations over a 10-year period. In
effect, FHWA has proposed the establishment of [an] independent
rationale for conspicuity benefits that fundamentally departs from
the basis for the tape and reflectors selected by NHTSA in its 1992
final rule. As a result, the FHWA proposal abridges the purposes of
NHTSA's regulation by underwriting protracted deviations from the
conspicuity protocol called for by NHTSA in Federal Motor Vehicle
Safety Standard No. 108. Advocates disagrees with FHWA's assertion
in this note that ``this proposal will [not] inhibit NHTSA's goal of
having the public learn to associate a long red and white line of
retroreflective sheeting (or reflex reflectors) with the side of a
trailer.'' Id. at 33617.
    To the contrary, the attenuated approach to full compliance with
the contours of NHTSA's Standard No. 108 proposed in this notice
will accomplish exactly the result of diluting the important safety
message intended by the uniform conspicuity enhancement mandated by
the December 1992 final rule. Since FHWA itself has acknowledged
that no carrier has expressed interest in a conspicuity retrofitted
color combination other than red and white, the agency is proposing
to undermine the more rapid securement of safety benefits, as well
as to dilute the safety message to other vehicle operators achieved
by the NHTSA final conspicuity rule, simply for the sake of
offsetting industry cost burdens.

    As indicated in the preamble to the NPRM, the FHWA agrees with
commenters who argue that all older trailers should be retrofitted with
red-and-white conspicuity treatments. However, the agency does not
intend to penalize motor carriers that have voluntarily retrofitted
their trailers with conspicuity treatments of alternative colors. The
FHWA is allowing these carriers 10 years to continue to use the non-
conforming colors. The end of the 10-year period coincides with the
expected end of the useful service life of the vehicles in question
(except tank trailers).
    The NHTSA in its final regulatory evaluation estimated that the
average trailer has a useful service life of approximately 14 years.
Commenters to both the NHTSA's NPRM and the FHWA's ANPRM generally
agreed with this estimate. Tank trailers are both more expensive and
more durable than other types of trailers and are believed to have a
useful life of approximately 20 years. The NHTSA requirements cover
trailers manufactured on or after December 1, 1993, which means that
the 14-year useful service life on most trailers manufactured shortly
before this date would be reached around the year 2007. The useful
service life of most tank trailers would be reached around the year
2013. Therefore, the 10-year period will help to ensure that motor
carriers operating trailers equipped with non-conforming conspicuity
treatments will not be penalized by the retrofitting rulemaking.
However, if these carriers choose to continue operating these trailers
at the end of the 10-year period, the vehicles will have to be
retrofitted with a conspicuity treatment that conforms to the NHTSA
standard.
    For carriers operating tank trailers equipped with non-conforming
conspicuity treatments, the old treatments will have to be replaced
with a conforming conspicuity treatment in the year 2009, at the end of
the ten-year transition period, and approximately 4 years before most
of these vehicles would be retired from revenue service.
    As discussed in the preceding section of this notice, the NHTSA's
research suggests that there are potential safety benefits from the use
of other color combinations. While the FHWA fully supports the NHTSA's
decision to require the red-and-white pattern on newly manufactured
trailers, attempting to immediately extend that requirement to trailers
that are already equipped with a different conspicuity scheme would not
result in a cost effective improvement in safety. The FHWA is not aware
of data that would enable the agency to conclude that the level of
effectiveness of the alternative color schemes on older trailers is
unacceptable for use during the proposed 10-year transition period.
    With regard to the AAMVA's comments about blue and green reflective
material, the FHWA does not intend to prohibit motor carriers from
using conspicuity treatments that include blue or green. Since the FHWA
did not prohibit these carriers from using blue and green colors for
retroreflective sheeting prior to this rulemaking, it would be
inappropriate to prohibit the use of these before the end of the ten-
year transition period.
    States have the authority to prohibit the use of blue and green
reflective materials if they believe such action is necessary.
Interstate motor carriers are responsible for complying with Federal
regulations, as well as applicable State requirements. Therefore, if a
State has a law or regulation that limits the use of blue and green
reflective materials to emergency vehicles, motor carriers operating in
that State must comply. The FHWA does not believe that additional
Federal action is required.

Two-Year Deadline for Equipping Vehicles With Conspicuity Treatments

    Several commenters requested that the FHWA provide motor carriers
more than two years to comply with the retrofitting requirement.
American President Lines believes it needs at least three years to
retrofit all of its intermodal container chassis. Farmland believes
carriers should have up to four years to complete the retrofitting of
semitrailers and trailers. The ATA, CVSA, GROWMARK, NTTC, XTRA, and
Yellow believe the industry should be given 5 years. The TSEI indicated
that it supports the two-year deadline but would also support three or
four years.
    American President Lines stated:

    Although APL understands the reasons for the proposed rule,
because of the geographic scope of APL's routes and the size of its
fleet, APL foresees extensive logistical difficulties in assuring
that, in the normal course of business, APL can transport all of its
pre-1994 chassis to locations where retroreflective tape or reflex
can be installed within two years of the effective date of the final
rule. APL is seriously concerned that, in order to meet the two year
rule, it would be required to significantly disrupt the normal flow
of business, taking chassis out of service when they would not
otherwise be required to be taken out of service.
    Given the severe demands on the intermodal system in today's
environment caused by a number of factors, APL believes it is
particularly important that companies be given adequate time to do
the installations without creating further constraints on the
transportation system by requiring companies to withdraw equipment
from service to install tape or reflectors.

    XTRA stated:

    Practical considerations must not be ignored, particularly in
connection with the pace of work necessary to perform the
retrofitting within the two-year period allowed for trailers that
lack any sort of reflective conspicuity marking. Reflective tape
cannot be installed in ambient temperatures below 60 degrees
Fahrenheit. At cooler temperatures, the tape will not adhere to
trailer surfaces, at least not for very

[[Page 15595]]

long, requiring further applications and expense. XTRA has only two
repair facilities, at Chicago and Fairmont City, Illinois, at which
reflective tape could be applied indoors during the cold weather
months in the Middle West. Even at that, the facilities could not
handle more than a small part of the 31,500 unmarked trailers in the
next two years. Each trailer retrofitted at one of those facilities
during the months October through March would require 24 hours of
indoor storage in order to achieve the temperature needed for tape
application.
    This limited window of opportunity within which the application
of reflective tape to trailer surfaces is feasible demonstrates that
XTRA requires more than two years for accomplishment of the
retrofitting task presented by its 31,500 trailers. XTRA strongly
recommends that FHWA extend that period to five years. The requested
extension of time is reasonable in the circumstances: a shorter
period would certainly produce both greater costs and unsatisfactory
results. Greater costs would arise from employee overtime and
business disruption caused by the compression of the work into the
warm weather months. Unsatisfactory results, in terms of short-lived
tape applications and repeat orders, would arise from the
performance of work in unfavorable weather conditions, if done under
deadline pressures in cold weather months.

    The ATA stated:
    So far our estimates require four hours of open shop time per
trailer. This requirement grows and becomes especially critical in
places where ambient temperatures remain below 60 degrees Fahrenheit
for long periods. Once the temperature dips below that level it is
necessary to bring trailers in and warm them prior to the
application of reflective tape. The two hours could easily be
tripled if surfaces have to be raised to 60 degrees Fahrenheit from
something below freezing. This greatly increases in-shop time and
makes reflective material application impracticable during certain
portions of the year. Other factors adding to this time include
shuttling the trailers in and out, purging certain tank trailers,
and the indoor period needed for paint to properly cure during low
outside temperatures.

    The ATA also expressed concern that maintenance resources would
have to be diverted from routine duties to complete the retrofitting
within two years. The ATA stated:

    We have not seen an analysis of the safety lost by diverting the
attention of 3,700 people from routine maintenance duties and into
retrofitting reflective materials to trailers. Nowhere in its cost-
benefit analysis of this proposal did the agency indicate it
contemplated the hiring of a new workforce to perform the trailer
retrofit. There were no costs shown for hiring persons and no
discussions of from where an additional 3,700 technicians might
come. We believe the agency has assumed it is possible to set aside
the work normally accomplished by these technicians while they
perform retrofitting of reflective materials to older trailers.
    This is not a viable alternative. The industry cannot divert the
normal maintenance duties of 3,700 technicians without adverse
consequences. It is possible to safely accommodate new jobs like
retrofitting reflective materials to trailers but not as quickly as
suggested in this proposal. Once again the answer to a problem posed
by this NPRM is to provide more time to complete the retrofit of
older trailers with reflective materials.
    We believe it is necessary to have five years to complete a
retrofit of reflective materials to trailers built before December
of 1993. This time allotment will enable completing the process
without a negative impact on safety caused by either a shortage of
shop space or technicians.

    The FHWA has considered the comments from motor carriers and
industry groups but believes the problem of passenger cars colliding
with semitrailers and trailers at nighttime and under other conditions
of reduced visibility requires a more immediate response than the
commenters have suggested. The motor carrier industry has had
sufficient time to recognize the safety benefits of conspicuity
treatments and voluntarily to begin the process of retrofitting the
semitrailers and trailers manufactured before December 1, 1993. The
NHTSA issued its final rule in 1992 sending a clear signal to the motor
carrier industry that a significant reduction in the incidence of
passenger cars colliding into semitrailers and trailers can be achieved
through the use of conspicuity treatments. Yet, many motor carriers
have not begun to retrofit their semitrailers and trailers.
    The opportunity for voluntary action at the convenience of the
industry has passed and a Federal mandate is necessary. It is
inappropriate to extend the amount of time motor carriers have to
comply with the requirements of this rule given the amount of time
motor carriers have had to voluntarily retrofit their older trailers.
The agency acknowledges that retrofitting the population of older
trailers is no small challenge and that the costs to the industry in
general, and larger fleets in particular, is significant. However, the
safety benefits outweigh the costs.
    The FHWA recognizes that some trailer leasing operations, such as,
XTRA have a trailers-to-maintenance facilities ratio that would make
retrofitting a large number of trailers within a two-year period
extremely difficult. The FHWA does not believe this is sufficient cause
to delay the compliance date for retrofitting older trailers. The FHWA
believes leasing companies and their motor carrier clients can work
together to accomplish the retrofitting. For example, leasing companies
can provide some of their clients with discounts if the clients
retrofit the trailers.
    With regard to the ATA's comments about diverting maintenance
resources, the FHWA does not believe the requirements of this rule will
force motor carriers to choose between retrofitting trailers with
conspicuity treatments and maintaining safety-critical equipment, such
as, brake systems, steering, suspension, etc. Motor carriers are
responsible for keeping each commercial motor vehicle in safe and
proper operating condition at all times. Each motor carrier must assess
its maintenance needs and hire the staff necessary to operate its
inspection, repair, and maintenance facilities.
    In some cases, it may be necessary to hire additional staff to
comply with this rule. However, the agency does not believe the
personnel used for retrofitting trailers have to be permanent, full-
time employees, or highly skilled workers. The agency is not aware of
any data that would support the ATA's estimate of 3,700 additional
maintenance workers as being required to complete the retrofitting
within a two-year period.

Ten-Year Deadline for the Use of Red and White Conspicuity Treatments

    Several commenters discussed the FHWA's proposal for a ten-year
transition period during which motor carriers would be allowed to use
alternative colors and color combinations to satisfy the retrofitting
requirements. The Advocates believe motor carriers should be given a
transition period, but the duration should be limited to four years
rather than 10 years. GROWMARK, OOIDA, and 3M support the ten-year
transition period. The ATA and NPTC believe alternative colors and
color combinations should be allowed indefinitely.
    The Advocates stated:

    The proposed 10-year delay in producing important safety
benefits from uniform conspicuity treatments will allow the great
majority of existing trailers, especially vans, to be operated
through the remainder of their useful service lives without ever
conforming to the dictates of FMVSS No. 108.

    The Advocates disagreed with the FHWA's argument that alternative
colors and color combinations may also have safety benefits, but
recognized the need for a transition period. The Advocates stated:

    Advocates concedes that some reasonable period for retrofitting
in-service trailers is needed to mitigate industry burdens, but not
one so long as to result in a regulation whose real effect will be
the retirement of the great

[[Page 15596]]

majority of in-service trailers without the chance of their being
subject to the retroreflectorization specified in current federal
regulation.

    The NPTC requested that the FHWA extend or eliminate the ten-year
phase-in deadline: The NPTC stated:

    First, the number of trailers involved in a retrofit ten years
after FHWA issues a final rule will be very small because:
    1. Every new trailer built since January 1, 1994, meets FMVSS
108.
    2. If the retrofit becomes effective in 1999, the exemption will
end in 2009 when trailers built in [1993] or earlier will be at
least 16 years old at that time.
    3. FHWA indicated the life of the majority of trailers is 14
years.
    4. The cost of keeping an inventory of many colors of
retroreflective tape will become cost-prohibitive and cause most
fleet operators to choose the standard red and white.
    By the time trailers reach the end of the ten-year exemption
period they most likely will be used in limited service due to their
age and condition. Since older trailers have had more exposure to
damaging conditions, they are likely to cost more to prepare for
retrofitting. More expensive repairs combined with a return to
limited service means that complete retrofitting in order to change
the color of the retroreflective material will not be cost-
effective.
    The primary reason given for the ten-year limit for conspicuity
treatments in colors other than red and white is ultimately for
marking uniformity. This uniformity has not been proven necessary to
improve safety. Also by the year 2009 the number of trailers having
other than red and white retroreflective materials will be very
small, yet these trailers will still have retroreflective markings,
just of a different color.

    The FHWA is retaining the ten-year deadline for motor carriers to
use conspicuity treatments that conform to the NHTSA standard for new
semitrailers and trailers. The FHWA believes the safety benefits of
requiring conspicuity treatments will be enhanced if those treatments
are uniform in colors and patterns. Having a standard conspicuity
treatment will help to ensure that motorists learn to associate the
red-and-white pattern with semitrailers and trailers.
    The ten-year deadline serves as a deterrent to the use of
alternative colors by motor carriers operating semitrailers and
trailers that are not currently equipped with any form of conspicuity
treatment. Motor carriers that anticipate using their older trailers
beyond the year 2009 will recognize the easiest way to comply with the
final rule is to use the red-and-white pattern. The transition period
helps to ensure that the number of trailers for which the replacement
of alternative color conspicuity treatments is kept to a minimum.
    The FHWA believes the transition period is sufficient to ensure
that most motor carriers are not penalized for voluntarily retrofitting
their semitrailers and trailers with alternative colors or patterns.
The agency recognizes that some motor carriers will be forced to
replace their conspicuity treatments in order to comply with the
requirements for the year 2009 and beyond. The FHWA believes the final
rule represents a balance between regulatory flexibility and the need
for having a standard conspicuity treatment for commercial motor
vehicles.

Conspicuity Treatments for Single-Unit Trucks, Truck Tractors, and
Cargo Containers

    Some of the commenters to the NPRM believe the FHWA should expand
the scope of the rulemaking to include single-unit trucks and truck
tractors. One commenter believes the FHWA should require conspicuity
treatments on intermodal cargo containers.
    Citizens for Reliable and Safe Highways (CRASH) stated:

    CRASH . . . advocates that the FHWA rule should apply not only
to 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, but also to single unit trucks. The FHWA claims that no one
has provided data to prove that a retrofitting requirement for
single-unit trucks would be a cost-effective solution to the problem
of passenger vehicles colliding with single-unit trucks. The data is
already presented in the FHWA notice; the same data that shows
tractor trailers are more visible with red and white tape on them
proves that single unit trucks would be more visible with red and
white tape on them.

    The Advocates stated:

    Advocates would like to address FHWA's pre-emptive repudiation
of the need for retrofitting single-unit trucks with conspicuity
markings. We are especially perplexed over FHWA's declaration that
the issue is out of bounds because this proposed rule, as well as
its preceding ANPRM, did not entertain the conspicuity retrofit of
single-unit trucks in part because there is no existing NHTSA
regulation requiring single-unit trucks to be fitted with
conspicuity treatments which FHWA could emulate for in-service motor
carriers.
    Yet FHWA proceeds to review the data for single-unit truck crash
involvements with passenger vehicles for the purpose of
demonstrating that there purportedly are insufficient benefits to
justify a retrofit of existing vehicles. However, FHWA's logic
clearly is also intended to forswear equipping even new single-unit
trucks with conspicuity enhancement. This exercise prejudices a
topic which properly should be left to NHTSA, the agency that has
not closed the door on the potential for requiring single-unit
trucks to be equipped with retroreflectorized enhancements.
Advocates would like to stress here that FHWA's argument that
trailers are overrepresented in both rear and side impacts by
passenger vehicles cannot by itself demonstrate that the benefits of
providing similar conspicuity markings for single-unit trucks are
not sustainable. If this argument were used as a paradigm, many of
the regulations issued by NHTSA would have been mooted prior even to
ventilation through proposed rulemaking. . . .

    In addition to expressing concerns about the need for conspicuity
treatments on single-unit trucks, the Advocates discussed the need for
retrofitting truck tractors. The Advocates stated:

    Advocates also wants to emphasize that FHWA in this proposed
rule ignores the need to increase the conspicuity of truck tractors,
especially those operating bobtail. FHWA could have simultaneously
initiated rulemaking to institute overall fleet conspicuity
enhancements in a single policy action. Instead, the agency has
ignored and deferred action on this important safety need. FHWA has
already delayed the enlargement of benefits resulting from improved
heavy vehicle conspicuity for the entire operating combination truck
fleet by allowing five and one-half years to elapse before it has
even tendered a proposal for retrofitting existing trailers and
semitrailers. Given the additional time necessary to issue a final
rule with a further delay in effective date for the onset of
compliance, Advocates is concerned that FHWA will take another
several years to propose the retrofit of existing truck tractors.
Since the agency has correctly argued that conspicuity benefits from
the use of retroreflectorized tape and reflex reflectors are a valid
policy axiom despite the current lack of definitive studies on the
affirmative value of NHTSA's 1992 final rule, Advocates sees no
reason for the agency to defer rulemaking on conspicuity retrofits
for truck tractors. See id. at 33615. NHTSA's regulation governing
truck tractor conspicuity has been in place since August 8, 1996 (61
FR 41355 et seq.). It would be irresponsible for FHWA to wait until
well into the 21st century to issue a proposal mandating the
conspicuity retrofit of truck tractors manufactured prior to July 1,
1997, the effective date of NHTSA's final rule on truck tractor
conspicuity enhancement.

    3M also expressed concerns about retrofitting truck tractors, but
added that the FHWA should require retroreflective sheeting on
intermodal cargo containers. 3M stated:

    We question the absence of requirements for making tractors and
unitized shipping containers used as trailers. The NHTSA has
acknowledged that tractors without trailers are over represented in
accident statistics. According to the NHTSA docket no. 80-9; notice
13, 60 percent of fatalities and 41 percent of the injuries
associated with crashes in which a truck tractor is struck in the
rear occur at night. The NHTSA uses ``the research on reflective
conspicuity for trailers, which have similar proportion of fatal

[[Page 15597]]

collisions at night, as a sufficient basis for the tractor
conspicuity rule.'' We believe that the retrofitting of tractors
could be combined with the retrofitting of trailers. The more
consistent the regulations are among agencies, the better.
    Unitized shipping containers, once mounted on chassis are, for
all intents and purposes, vehicles. The U.S. DOT report HS 806 923
indicated an 18 percent overall reduction of collisions in which
other vehicles struck reflectorized tractor-trailer units. It is
reasonable to assume this same result would be accomplished for
shipping containers mounted on chassis because, to other drivers,
the shipping containers are indistinguishable from integral
trailers.

    The FHWA does not intend, at this time, to propose conspicuity
treatments on single-unit trucks. This rulemaking is not intended to
serve as a forum for resolving complaints about the NHTSA's conspicuity
rulemaking. The NHTSA provided all interested parties with the
opportunity to comment on the amendments to FMVSS No. 108 during its
rulemaking on trailer conspicuity.
    The data presented in the NPRM, and the data presented in this
final rule indicate that a significant number of passenger vehicles
crash into the sides and rear of single-unit trucks at nighttime. While
research indicates that conspicuity treatments are an effective means
to help motorists detect vehicles at nighttime, there is no indication
that the safety benefits from requiring every single-unit truck
operated in interstate commerce to be equipped with retroreflective
sheeting or reflex reflectors exceeds the costs of retrofitting these
vehicles. Commenters have not provided data to prove that a
retrofitting requirement for single-unit trucks would be cost-
effective.
    The NHTSA's accident data (FARS and GES) indicate that combination
vehicles are over represented in collisions involving passenger
vehicles striking the sides or rear of commercial motor vehicles. This
means that the number of accidents in which a passenger vehicle strikes
a combination vehicle (a single-unit truck pulling a trailer(s), or a
truck-tractor pulling a trailer(s)) exceeds the amount that one would
expect if one looked at the percentage of the registered commercial
vehicle fleet that is listed in the combination-vehicle category.
    In 1997, there were an estimated 20,357 nighttime accidents in
which one commercial motor vehicle and one passenger vehicle were
involved. All of these accidents resulted in a fatality, injury, or one
of the vehicles incurring damage severe enough to require that the
vehicle be towed from the accident scene. In 5,139 of these accidents,
a passenger vehicle rear-ended a trailer (2,086 cases) or struck the
side of the trailer (3,053 cases). By comparison, in 2,856 of the
20,357 nighttime accidents a passenger vehicle rear-ended a single-unit
truck or truck-tractor (1,430 cases) or struck the side of the single-
unit vehicle (1,426 cases).
    Looking at the 1997 FARS data, there were 994 fatal nighttime
accidents involving one commercial motor vehicle and one passenger
vehicle. In 316 of these accidents, a passenger vehicle rear-ended a
trailer (198 cases) or struck the side of the trailer (118 cases). By
comparison, in 53 of these nighttime accidents a passenger vehicle
rear-ended a single-unit truck or truck tractor (37 cases), or struck
the side of the single-unit vehicle (16 cases).
    The 1997 nighttime accident statistics indicate that the frequency
with which passenger vehicles strike the rear of trailers is 1.46 times
the frequency with which passenger vehicles strike the rear of single-
unit vehicles. The frequency with which passenger vehicles strike the
side of a combination vehicle is 2.14 times the frequency with which
passenger vehicles strike the side of a single-unit vehicle. The FARS
data for 1997 show that frequency of fatal nighttime accidents
involving a passenger vehicle striking the side of a combination
vehicle is more than seven times the rate at which passenger vehicles
strike the side of a single-unit commercial motor vehicle. The
frequency of fatal nighttime accidents involving a passenger vehicle
rear-ending a combination vehicle is more than five times the rate at
which passenger vehicles strike the rear of a single-unit commercial
motor vehicle.
    The difference between the nighttime accident involvement for
combination vehicles and single-unit vehicles is especially important
because the number of registered single-unit trucks (4,219,920) is 2.63
times the number of combination trucks (1,607,183).<SUP>1</SUP>
Therefore, combination vehicles represent approximately 27 percent of
the fleet, but 64 percent (5,139 out of 7,995 cases) of nighttime
accidents in which a passenger car struck the side or rear of a
commercial motor vehicle. Looking at the fatal nighttime accidents,
combination vehicles were involved in 85 percent (316 out of 369 cases)
of the incidents in which a passenger vehicle struck the side or rear
of a commercial motor vehicle. Based upon this data, the FHWA has
decided to limit the retrofitting rulemaking to semitrailers and
trailers.
---------------------------------------------------------------------------

    \1\ ``Summary of Medium and Heavy Truck Crashes in 1990,''
National Highway Traffic Safety Administration, February 1993 (DOT
HS 807 953).
---------------------------------------------------------------------------

    This decision does not preclude any future consideration by the
NHTSA of a requirement for conspicuity treatments on single-unit
trucks, or a future rulemaking by the FHWA to require some form of
conspicuity retrofitting for these vehicles. The FHWA's decision is
based upon the data currently available. If, at some point in the
future, information becomes available suggesting that the benefits from
a retrofitting rulemaking exceeds the costs, the agency will consider
initiating a rulemaking at that time.
    With regard to the commenters requesting that the FHWA require
retrofitting of truck-tractors, the FHWA must emphasize that this
rulemaking is not intended to resolve all conspicuity-related issues
concerning commercial motor vehicles. The agency initiated this
rulemaking before the NHTSA established conspicuity requirements for
truck-tractors, and elected to focus its resources on the completion of
its trailer conspicuity retrofitting rulemaking prior to attempting to
assess the cost-effectiveness of a truck-tractor retrofitting
rulemaking.
    The FHWA notes that the IIHS has submitted a petition for
rulemaking to require motor carriers to retrofit truck-tractors
manufactured before July 1, 1997, with retroreflective sheeting or
reflex reflectors on the rear of the cab, and mud flap brackets. The
agency is reviewing the petition and will, if the petition is
determined to have merit, issue a notice requesting public comment on
this topic.
    In response to 3M's comments about intermodal cargo containers, the
FHWA does not intend to require retroreflective sheeting on cargo
containers. The FHWA is not aware of data that would suggest that the
current requirements for lighting devices, reflectors, and conspicuity
treatments on intermodal container chassis (and other trailers used to
transport intermodal cargo containers) are insufficient to help
motorists detect loaded container chassis at nighttime and under other
conditions of reduced visibility.
    The FHWA believes a rulemaking to require conspicuity treatments on
intermodal cargo containers would have significant legal, economic, and
international implications. Intermodal cargo containers are considered
cargo and such a rulemaking would result in requiring motor carriers to
mark their client's cargo irrespective of the client's wishes. This
would be particularly difficult to accomplish if the FHWA does not have
the statutory authority to

[[Page 15598]]

regulate the owners of the intermodal cargo containers.
    Since intermodal cargo containers are often imported from and
exported to destinations around the world, the FHWA and the motor
carrier industry would need international cooperation from companies
and governments to ensure that containers were equipped with
conspicuity treatments before being shipped to the United States. If
the containers were not equipped with conspicuity treatments prior to
arrival at a U.S. port, entities in the U.S. would have to absorb the
economic burden of applying retroreflective sheeting to the containers.
    Another potential complication concerns international standards or
foreign laws that would prohibit the marking of the containers with
retroreflective sheeting. The FHWA would have to consult with numerous
foreign governments to ensure that the agency's actions did not
conflict with the laws of other countries.
    The FHWA notes that 3M did not provide any data to suggest that the
incidence of passenger vehicles colliding with intermodal container
chassis could be significantly reduced by the addition of
retroreflective sheeting on the cargo containers they are used to
transport. Furthermore, 3M has not provided information that would
suggest that the FHWA could build an international coalition of
businesses and governments that would support such a requirement to
ensure that U.S. companies are not placed at an economic disadvantage.
    The FHWA acknowledges that there may be safety benefits to applying
conspicuity treatments to intermodal cargo containers, but does not
believe that the mere assumption of safety benefits satisfies the
agency's obligation to quantify the benefits of the rulemaking and to
prove that the benefits exceed the costs to the transportation industry
and U.S. consumers.

Harmonization with Canadian Requirements

    Several commenters discussed Canadian requirements for conspicuity
treatments on semitrailers and trailers. Transport Canada and CCMTA
explained the current Canadian requirements for new semitrailers and
trailers, and trailers manufactured prior to the effective date of the
Canadian rules for new vehicles. CCMTA stated:

    Canadian governments support the objectives of this rulemaking
given that similar requirements are being introduced in the
regulations of Canadian provinces and territories. Transport Canada,
the federal agency which has similar responsibilities to NHTSA in
the development and promulgation of new vehicle manufacturing
standards has mandated effective January 24, 1997 that all new
trailers manufactured for sale in Canada be equipped with reflective
tape or reflex reflectors per Canadian Motor Vehicle Safety Standard
(CMVSS) 108. A review of the Canadian and US provisions applying to
new vehicles indicates the requirements are almost identical. The
Canadian manufacturing requirements while specifying a red and white
pattern do however permit other colours and colour combinations
which attract attention more effectively than the basic red and
white pattern outlined in the US rule. Copies of this research will
be forwarded under separate cover by Transport Canada. Canadian
governments are concerned the present rulemaking is unduly
restrictive in prescribing that only one color scheme or combination
may be used to meet US requirements. This would seem to preclude the
possibility of innovation as it relates to other colour schemes or
combinations which might prove to be more effective in enhancing the
conspicuity of commercial vehicles in future years.
    The retro-fitting of trailers with reflective tape or reflex
reflectors would not normally fall under the jurisdiction of
Transport Canada. The setting of in-use motor vehicle standards is
generally the responsibility of the provincial and territorial
governments of Canada. In 1995, a CCMTA Project Group consisting of
a number of jurisdictional and industry representatives undertook to
review whether reflective tape and reflex reflectors should be
retroactively mandated on commercial trailers in Canada. A copy of
the final report has been enclosed. This report provides a cost/
benefit analysis and a review of various implementation options.
Following discussion among government and industry stakeholders
CCMTA in May 1997 adopted the following implementation schedule for
mandating retro-fitting reflective tape or reflex reflectors on
trailers in service:
    1. All trailers manufactured on, or after December 1, 1993 will
be required to be equipped with reflective tape or reflex reflectors
by January 1, 1999; and,
    2. All trailers manufactured before December 1, 1993 will be
required to be equipped with reflective tape or reflex reflectors by
January 1, 2002.

    The CCMTA indicated that Canadian jurisdictions believe that
harmonization between U.S. and Canadian conspicuity requirements is
important. CCMTA stated:

    Canadian governments are concerned that opportunities to better
coordinate the introduction of these requirements between the US and
Canada to cause minimum disruption to the cross border traffic
between the two countries may have been missed. Canadian
jurisdictions have agreed to allow a one year period of ``soft
enforcement'' on the January 1, 1999 deadline. Operators of vehicles
without reflective tape will be advised of the requirements when
stopped at roadside inspections and this will continue until January
1, 2000. At this point operating a trailer without reflective
material will become an offense, subject to fines for violation of
the respective vehicle standards in each jurisdiction. It is
anticipated this will have little or no impact on US trailer owners
operating vehicles manufactured after December 1, 1993 as these
vehicles have all presumably been equipped with reflective tape or
reflex reflectors.
    CCMTA is however concerned that Canadian requirements will have
an impact on US operators with respect to the second implementation
date in Canada of January 1, 2002 for vehicles manufactured prior to
December 1, 1993. The current NPRM does not set an effective date
apart from two years after the publication of the final rule.
Depending on the date set for implementation of the final rule, a
significant number of US trailer owners who operate equipment into
Canada could become subject to Canadian rules prior to the
implementation of the US rule. This will also hold true for a
significant number of Canadian trailers operating into [the] US
unless steps are taken to harmonize the implementation dates. CCMTA
is unable to provide a precise estimate of affected trailers and
carriers at this juncture. CCMTA believes further efforts should be
undertaken by our respective officials to harmonize the effective
dates of our respective rules.

    The FHWA supports the goal of harmonizing safety regulations, but
does not intend to modify U.S. requirements (neither the substance of
the rules nor the implementation dates) solely for the sake of
harmonization. Improving highway safety is the FHWA's top priority.
    The NHTSA, through FMVSS No. 108, has established the red-and-white
pattern as the U.S. standard for semitrailers and trailers manufactured
on or after December 1, 1993, and truck tractors manufactured on or
after July 1, 1997. The FHWA is requiring that within 2 years of the
effective date June 1, 1999 of this rulemaking, motor carriers have
their semitrailers and trailers, manufactured before December 1, 1993,
equipped with retroreflective sheeting or reflex reflectors. The FHWA
will allow, during a 10-year transition period beginning on the
effective date of this final rule, the industry a certain amount of
flexibility in terms the colors and color combinations they may use to
avoid penalizing motor carriers that have voluntarily retrofitted their
semitrailers and trailers with conspicuity treatments that differ from
the NHTSA requirement for new vehicles. However, the agency encourages
motor carriers to use the red-and-white pattern as required on new
vehicles, and is putting into place a deadline that will ensure
uniformity in conspicuity treatments on semitrailers and trailers.
    The FHWA recognizes that Transport Canada's requirements for new
trailers

[[Page 15599]]

provides four options for colors and color combinations for conspicuity
treatments. All four options may be used to satisfy the FHWA's
retrofitting requirements during the 10-year transition period.
    The FHWA has indicated in correspondence with Transport Canada that
the agency will not accept the alternative colors allowed by Canada on
trailers manufactured on or after December 1, 1993. The FHWA has
advised Transport Canada that vehicles operated by Canada-based motor
carriers must comply with the same conspicuity requirements applicable
to the U.S. motor carriers. Therefore, Canada-based motor carriers
operating semitrailers and trailers manufactured on or after December
1, 1993, must ensure that those vehicles meet the requirements of FMVSS
No. 108 if those vehicles are used in the United States.
    The FHWA believes the NHTSA rationale of establishing uniformity to
ensure that motorists learn to associate the red-and-white pattern with
commercial motor vehicles is reasonable. The agency does not believe
that allowing four different color schemes indefinitely will result in
an equal or greater level of motorists' recognition.
    On the subject of implementation dates, the FHWA believes the
problem of passenger cars colliding with certain commercial motor
vehicles requires more immediate action than that planned by the
jurisdictions in Canada. The NHTSA requires conspicuity treatments on
semitrailers and trailers manufactured on or after December 1, 1993,
and truck tractors manufactured on or after July 1, 1997. Through this
rulemaking, the FHWA is requiring conspicuity treatments on
semitrailers and trailers manufactured before December 1, 1993, and
motor carriers must complete the retrofitting within two years after
the effective date. The FHWA's requirement for retrofitting will be
enforced beginning in the year 2001, several months prior to the
Canadian deadline of January 1, 2002, for retrofitting vehicles
manufactured before December 1, 1993. Since there are no discernible
safety or economic benefits to delaying the effective date of the FHWA
requirements for retrofitting, or the deadline for motor carrier
compliance, the FHWA will not adjust its schedule to match the Canadian
schedule.
    The FHWA is committed to working closely with its Canadian and
Mexican counterparts on highway safety issues and believes
harmonization should be pursued whenever practicable. The agency does
not believe this rule will impede cross-border commerce or place an
undue burden on either the U.S. or Canadian motor carrier industries.

Exemptions for Certain Motor Carrier Operations and Certain Types of
Trailers

    A number of industry commenters discussed the need for exemptions
to the conspicuity requirements. These commenters discussed a range of
motor carrier operations and types of trailers.
    The NPTC indicated that certain trailers lack a suitable location
for mounting retroreflective materials. The NPTC stated:

    Some tank trailers have no continual horizontal surface upon
which to mount retroreflective materials either along the side or
across the rear. This is a reason why TEA-21 specifically mentions
tank trucks in its call for FHWA to provide regulatory flexibility
to accommodate trailers of different designs and configurations.
    Low-platform trailers have D-rings for load securement and swing
arms mounted along the trailer's sides that disallow suitable
locations for the placement of retroreflective materials. Swing arms
are devices that provide a structure on which to place planking to
extend trailer width and accommodate wider loads, such as earth-
moving equipment and cranes, when swung out from the trailer side.
Cleaning rust from the trailer sides behind these attachments would
be very difficult. Additionally, the D-rings and swing arms will
partially hide and quickly damage any retroreflective material added
in these locations.
    In the aforementioned cases, trailer manufacturers have changed
designs for the successful application of retroreflective materials
on new trailers. In some instances they have added new structures
whose only purposes are to accommodate the mounting of such
material. Fleet operators attempting to retrofit older trailer
designs may be unable to modify older trailers by simply adding a
piece of sheet metal to accommodate retroreflective materials.

    The ATA believes the operational conditions to which some trailers
are subjected makes it impractical to retrofit the vehicles. The ATA
stated:

    There are certain trailers that, by reason of their condition or
service, are unsuitable for retrofit of reflective materials. Tank
trailers used to spread cement powders for stabilization of a
highway's subsurface are an example. This equipment works over open
dirt. It quickly becomes crusted with an extremely hard-to-remove
mixture of dirt and cement. Chipping, acid treatment and painting
are necessary before installation of reflective materials. Once
returned to service, a dirt and cement crust soon covers the
trailers and their new reflective material.
    Another operation where vocational use nullifies reflective
material effectiveness is the transport of hot-mix asphalt (see
Attachment A; pictures 35-43). This is the material used to make
roads. The temperature of hot-mix carried in trailers is over 300
degrees Fahrenheit. Materials in both tape and plastic reflectorized
strips deform at these temperatures. Besides destroying those
reflective materials that it contacts, the hot-mix also makes
trailer surfaces unsuitable for their application. The rear of hot-
mix trailers will require much preparation prior to successful
application of reflective materials. Once placed in that location
the material will have a short life.
    There is no chance there will be a cost-effective return from
placing reflective materials on vehicles whose use destines them to
rapidly become covered in visibility blocking material. We do not
believe the Congress meant DOT to mandate retrofitting reflective
materials in such cases.

    The FHWA recognizes the concerns the motor carrier industry has
about technical problems applying conspicuity treatments to older
trailers and maintaining conspicuity treatments on trailers operated in
tough work environments that could adversely impact the durability or
visibility of the retroreflective sheeting or reflex reflectors. The
FHWA must emphasize that the agency is requiring motor carriers to
retrofit the same types of semitrailers and trailers on which the NHTSA
requires manufacturers to install conspicuity treatments. The FHWA did
not propose including any trailer types or configurations that were
exempt from FMVSS No. 108, or exempt from the conspicuity requirements
in FMVSS No. 108.
    Interstate motor carriers are currently required under 49 CFR
393.11 to maintain the conspicuity treatments on the semitrailers and
trailers manufactured on or after December 1, 1993. Commenters have not
explained why it is possible for the manufacturers to comply with the
NHTSA requirement and motor carriers to maintain the conspicuity
treatments as required by the FHWA, but impractical and burdensome to
retrofit the older versions of these semitrailers and trailers.
    The FHWA acknowledges that some trailer manufacturers may have
included special mounting devices to comply with the NHTSA's
conspicuity requirements. However, the agency believes motor carriers
should be capable of meeting the requirements of this rule by doing the
same things vehicle manufacturers did to comply with the NHTSA
requirements. The FHWA is not aware of any trailer manufacturers that
have made significant design changes for the purpose of complying with
the NHTSA's conspicuity rule. Therefore, the agency does not believe
motor carriers have to invest significant resources to find a practical
and effective means to attach retroreflective

[[Page 15600]]

sheeting or reflex reflectors to the vehicles described.

Interpretation of the Transportation Equity Act for the 21st Century

    The ATA indicated that it believes the FHWA is not required to
issue a final rule concerning conspicuity based upon its reading of the
House of Representatives conference report (H.R. Conf. Rep. No. 105-
550, at 499-500 (1998)) on the TEA-21.
    The FHWA has reviewed the conference report and believes the
explicit language in section 4025 of the TEA-21 requires that the
agency issue a final rule regarding the conspicuity of trailers
manufactured before December 1, 1993. The content of that rule is not
mandated by section 4025, but the agency is required to consider
certain factors if it decides to require retrofitting. There is no
conflict between the statutory language and the conference report.
    The FHWA initiated this rulemaking under the statutory authority
provided by 49 U.S.C. 31136 and 31505, and issued its NPRM under the
same statutory authority. The agency developed the NPRM based upon the
agency's analysis of the comments received in response to the ANPRM,
accident data, and a preliminary regulatory evaluation. The agency
published an announcement of its decision to issue an NPRM prior to the
drafting of the TEA-21 (61 FR 40781, August 6, 1996). The TEA-21 does
not preclude the agency from issuing a final rule provided the final
rule satisfies the three criteria of section 4025. The FHWA has
determined that this final rule is consistent with the requirements of
the TEA-21.

Economic Impacts of the Rulemaking

    The ATA and NPTC disagreed with the FHWA's estimates of the costs
of the rule. The ATA stated:

    The 1996 ATA ``F&OS Motor Carrier Annual Report'' recorded an
average revenue per ton for 505 fleets of $54. Derivation of that
average came from figures that ranged from $8 to $950 per ton. The
505 fleets also reported an average load of 30,000 pounds. From
those figures, the cost of missing a load with each of the 1.4
million trailers FHWA estimates will need retrofitting with
reflective materials is $1 billion. This expense, for just lost
revenue, dwarfs the agency's estimate for the complete retrofitting
job and points out our concerns with the costs presented in the
NPRM.

    The NPTC stated:

    Based on polling of NPTC member companies, we have found that
fully-loaded labor hour costs are closer to $35.00 per hour. As a
result, total per trailer retrofit costs would be from 7.5 to 9.5
percent greater than FHWA's estimates shown in [the NPRM].

    The NPTC believes the economic impact on private motor carriers of
property will be greater than the impact on for-hire motor carriers.
The NPTC stated:

    Private fleets will incur significant downtime expense
retrofitting pre-1993 trailers with conspicuity treatments. Whereas
most for-hire fleets typically have two or more trailers per power
unit, that ratio is much lower for private fleets. Private fleets
typically have specialized equipment and cannot justify the expense
of extra trailer equipment. As a result, placing trailers out of
service to complete the proposed conspicuity retrofit could
potentially cause a severe backlog of product at distribution
centers and manufacturing facilities. This backlog could prove to be
a serious economic hardship to private fleet operators due to
canceled orders, etc.
    Additionally, [FHWA] greatly underestimates just the revenue
lost during the time required for retrofitting. For trailers with
extensive surface preparation requirements, the total time for
performing retrofitting would be well over the FHWA's two-three hour
estimates. Further, more than one work session will be required to
conduct such tasks as surface preparation and repainting. As a
result, retrofitting cannot be accomplished in a single step and
extensive downtime will occur as part of a paint curing process or
waiting for available shop space to complete application of
reflective materials.

    The FHWA does not believe this rule will result in motor carriers
losing business either through lost loads in the case of for-hire
carriers of property, or canceled orders for private motor carriers of
property. The final rule is applicable to all interstate motor carriers
operating semitrailers and trailers manufactured before December 1,
1993. For motor carriers operating trailers that are not currently
equipped with any form of conspicuity treatment or retroreflective
sheeting in locations that do not satisfy the requirements of this
rule, the economic consequences are more immediate than those for a
motor carrier that can take advantage of the ten-year transition
period. Motor carriers that have not already equipped their older
trailers with retroreflective sheeting or reflex reflectors must invest
the necessary resources to complete the retrofitting process within two
years of the effective date of this rule.
    The FHWA does not believe that the final rule will have a
disproportionate impact on any segment of the motor carrier industry.
The agency recognizes that trailers will have to be taken out of
revenue service while the retrofitting is being done but believes most
motor carriers should be able to perform the retrofit while the trailer
is in the shop for maintenance and repairs. The agency does not believe
motor carrier managers would be unable to piggyback retrofitting onto
the many non-revenue hours devoted to routine maintenance during the
two-year period allowed by this rule. The job will require careful
planning, but the rule allows ample time for that.
    The FHWA disagrees with the ATA's estimate of the opportunity cost,
or lost revenues. The $1 billion estimate was not derived in a
statistically valid manner; it simply assumes that every trailer to be
retrofitted will lose an opportunity to carry a load. The estimates
presented in the NPRM, and accompanying preliminary regulatory
evaluation (PRE), are much more representative of the actual
opportunity costs that most motor carriers will experience.
    The FHWA has prepared a final regulatory evaluation (FRE) to
accompany this rulemaking notice. A copy of the FRE is included in the
docket. The FHWA estimates that the total cost of this rule will be
$228 million. This estimate is based upon the assumption that
approximately 815,000 trailers will be covered by the rule. The FHWA
estimates that the benefits of the rule will be approximately $360
million. A detailed discussion of how the FHWA prepared its estimates
is provided later in this notice for interested parties that are not
able to review the FRE.
    The FHWA recognizes the difficulties that motor carriers have had
retrofitting conspicuity treatments to older trailers. The agency has
considered the technical problems associated with installing
conspicuity treatments as part of the process for preparing the FRE.
The agency has also considered the scheduling problems cited by the
commenters and used this information as one of the factors for deciding
to adopt a two-year phase-in period for installing retroreflective
materials on trailers that are not equipped with any form of
conspicuity treatment, and a 10-year transition period to replace non-
conforming treatments with retroreflective material that conforms to
the NHTSA requirement.

Summary of the FHWA's Rationale for Issuing the Final Rule

    The FHWA recognizes the technical and economic concerns of
commenters opposed to a retrofitting requirement. However, based upon
the information currently available, the agency believes that
retrofitting of trailers with conspicuity treatments will provide
significant safety benefits. Retrofitting appears to be cost-effective
and technically feasible.

[[Page 15601]]

    Three key issues were considered in determining whether to issue a
final rule. The first issue is the cost of installing retroreflective
material on older vehicles. The FHWA recognizes that the surfaces of
many of the older trailers will require preparation (e.g., removal of
oxidation, pre-treating, etc.) to ensure that the retroreflective tape
adheres. In many cases the trailer will have to be removed from revenue
service to complete the retrofit. Therefore, the final rule provides a
two-year phase-in period to allow motor carriers to complete the
retrofitting at routine maintenance intervals. The FHWA estimates that
the total cost (conspicuity material, labor, and the loss in revenues)
for retrofitting a 45-53 foot trailer would be approximately $314, with
the cost for shorter trailers being less.
    The second issue is the voluntary use of retroreflective material
on older trailers by certain fleets. A large number of fleets have been
using conspicuity treatments on their trailers since the mid-1980's.
However, many of the color schemes, as well as the levels of
reflectivity of the tape used on the older trailers, differ from the
NHTSA requirements for trailers manufactured on or after December 1,
1993. If these operators were required to replace the retroreflective
materials that they voluntarily installed to improve safety, it would
have the effect of penalizing motor carriers that demonstrated an extra
level of safety consciousness. Such an action would also discourage
motor carriers from future efforts to explore innovative approaches to
improving safety. With this in mind, the FHWA is allowing motor
carriers 10 years to replace alternative conspicuity treatments applied
to trailers manufactured before December 1, 1993, with treatments that
conform to the NHTSA requirements for new trailers.
    The third issue, but certainly not the least important, concerns
the projected safety benefits of trailer conspicuity material that
meets the NHTSA requirement. The NHTSA estimates 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 annually in
about 11,000 accidents 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, are expected to prevent,
annually, 2,113 of these accidents. The NHTSA estimated 1,315 fewer
injuries and about 80 fewer fatalities would occur.
    In 1997, there were an estimated 20,357 nighttime accidents in
which one commercial motor vehicle and one passenger vehicle were
involved. All of these accidents resulted in a fatality, injury, or one
of the vehicles incurring damage severe enough to require that the
vehicle be towed from the accident scene. In 5,139 of these accidents,
a passenger vehicle rear-ended a trailer (2,086 cases) or struck the
side of the trailer (3,053 cases).
    Looking at the 1997 FARS data, there were 994 fatal nighttime
accidents involving one commercial motor vehicle and one passenger
vehicle. In 316 of these accidents, a passenger vehicle rear-ended a
trailer (198 cases) or struck the side of the trailer (118 cases).

FHWA Estimates of the Costs and Benefits

    The FHWA has completed a final regulatory evaluation comparing the
projected safety benefits of a retrofitting requirement to the
potential economic impact on the motor carrier industry. The following
discussion summarizes the FHWA's analysis. A copy of the complete FRE
is available for review in the docket.
    The agency analyzed and compared the estimated costs and benefits
of

two-, three-, and five-year phase-in period options for a retrofitting
requirement, proposed a two-year phase-in period for trailers that are
not currently equipped with retroreflective sheeting, and is adopting a
final rule consistent with the proposal. The FHWA estimates that the
total costs for motor carriers to comply with the conspicuity
requirements within a two-year period will be $228 million, with the
safety benefits (fatalities and injuries prevented) and economic
benefits (property damage prevented) totaling $360 million. The FHWA
estimates that this final rule will apply to approximately 1.02 million
trailers, of which approximately 20 percent already have conspicuity
treatments. It is estimated that the rule will, over a ten year period,
prevent 102 fatalities and 1,766 injuries associated with passenger
cars colliding with semitrailers and trailers. In addition, this rule
will prevent approximately 2,556 property damage only (PDO) accidents.
The FHWA believes the projected safety benefits (in terms of accidents
prevented and lives saved) outweigh the economic burden on the motor
carrier industry. The following section provides a detailed discussion
of how the FHWA prepared its estimates of the costs and benefits.
    The costs are considered one-time costs in that the conspicuity
treatments will not need to be replaced during the remaining years of
the useful service lives of the trailers that would be subject to the
retrofitting requirement. The estimates for the benefits are the total
expected benefits over the remaining years of the useful service lives
of the trailers that would be retrofitted.
    Generally, there are three types of costs associated with
retrofitting: the tape or reflex reflectors; the labor required to
apply it; and, the opportunity cost of withdrawing the trailer from
revenue-producing service. The following describes how the FHWA arrived
at its estimates for the different types of costs and benefits.

Costs for Retroreflective Sheeting

    The NHTSA's preliminary regulatory evaluation used a tape cost of
$.675 per linear foot for 50 mm (2-inch) wide tape. Based upon comments
to the NHTSA rulemaking and further analysis, the NHTSA adjusted this
figure to $1.29 in its final regulatory evaluation.
    The amount of tape required to retrofit a trailer varies with its
size. For example, a 28-foot trailer would need 47 feet of tape: 14
feet of material per side (because the rule would require that at least
50 percent of the length of the trailer must be covered); an 8-foot
strip along the bottom of the rear; 2 pairs of one foot strips for the
outline of the upper rear, and approximately seven feet of material for
the underride guard. (The estimated cost for retrofitting a rear
underride guard that does not require complete refurbishment was
included in the FRE, although the FHWA is not requiring motor carriers
to install conspicuity materials on the underride guard. Actual costs
to motor carriers will therefore be slightly lower than the estimates
given in the FRE.) By contrast, a 48-foot trailer would require the use
of an additional 10 feet of material for each side of the trailer or a
total of 67 feet of tape.
    The NHTSA estimated that the total cost for the tape would be
$60.84 for 28-foot trailers, $77.67 for 40-42 foot trailers, and $86.73
for 45-53 foot trailers. The FHWA adjusted these figures in the NPRM to
account for inflation between 1992, when the NHTSA's final regulatory
evaluation was completed, and 1995. This adjustment, based upon the
producer price index for industrial commodities (See Table b63 from the
``Economic Report of the President,'' 1996, ISBN 0-16-048501-0),
increased the costs to $65.04 for 28-foot trailers, $83.03 for

[[Page 15602]]

40-42 foot trailers, and $92.71 for 45-53 foot trailers. The FHWA has
revised the estimate presented in the NPRM to account for changes in
the price levels between 1995 and 1997, with the result being $66.18
for 28-foot trailers, $84.48 for 40-42 foot trailers, and $94.33 for
45-53 foot trailers. A more detailed explanation is provided in the
final regulatory evaluation.

Cost for Labor to Apply the Retroreflective Sheeting to the Trailers

    The FHWA used an average wage of $25 per hour in the preliminary
regulatory evaluation, including both wages and fringe benefits. The
agency has reviewed the Bureau of Labor Statistics' 1996 Occupational
Compensation Survey and other information and has lowered the assumed
wage rate to $20 for the final regulatory evaluation.
    The NHTSA estimated that it takes 30 minutes to install tape on a
trailer. While this is a reasonable estimate for factory installed
tape, the FHWA recognizes that it would take longer to retrofit a
trailer. Trailers will generally have to be prepared and cleaned for
the conspicuity treatment. Trailers which have holes and other damage
may require more extensive repairs.
    The comments to the ANPRM and NPRM, as well as observations by the
FHWA staff during a 1994 site visit to a Roadway terminal
(documentation of the visit is included in the docket file), indicate
that the amount of time required to retrofit a trailer will vary
significantly with trailer type and condition. For example, trailers
with outer posts may require more extensive work than trailers with
smooth exterior surfaces.
    Taking into account these considerations, the FHWA estimates that
the retrofitting process for the average 28-foot trailer would take 3
hours to complete. The agency estimates that the time required to
retrofit 40-42 foot and 45-53 foot trailers would be 3.5 and 4 hours,
respectively. The estimates for the time required to complete the
retrofitting were increased for the final regulatory evaluation in
response to the wide range of estimates provided by the commenters in
response to the NPRM. The FHWA's estimates of labor costs are $60, $70,
and $80 for the 28-, 40-42, and 45-53 foot trailers, respectively.

Opportunity Costs

    Estimating the value of revenue that cannot be generated while the
trailer is being retrofitted is difficult because of the variety of
trailer types, the variety of motor carrier operations and the rates
that are charged, and the overall manner in which some trailers are
used--being left idle at the motor carrier's terminals for periods of
time that may be as short as a few hours to several days.
    The FHWA believes that it is more likely than not that a large
percentage of trailers would have to undergo routine repair and/or
maintenance at some point during the two-year phase-in period.
Retrofitting trailers at the same time that repairs or maintenance are
performed would result in negligible opportunity cost since the
trailers would not be generating revenue in any case. Even the trailers
that do not require routine repairs may be idle at some point during
the phase-in period and could be retrofitted at minimal opportunity
cost.
    The FHWA does not have the detailed information required to develop
a comprehensive model of opportunity costs. Therefore, the agency
constructed a simple model of the form $150/(1.5 X logarithm of the
phase-in period). The opportunity costs for a two-year phase-in period
are estimated at $140.

Number of Trailers

    The FHWA estimates that 2.69 million trailers and semitrailers will
be in use by the year 2001. However, more than half of these trailers
will be post-1993 trailers, which already have the required
retroreflective sheeting. The agency believes 1.02 million of the 2.69
million trailers and semitrailers will be pre-1994 trailers, and
approximately 20 percent of these vehicles will already have some form
of conspicuity treatment. Approximately 815,000 trailers and
semitrailers will have to be retrofitted. A detailed discussion on how
the agency prepared its estimate is provided in the FRE.

Total Costs for Retrofitting Trailers

    Based upon the information currently available concerning the costs
for retroreflective sheeting, labor, and opportunity costs, and the
estimates of the number of trailers for which motor carriers will be
required to take some type of actions to comply with the proposed
requirements, the FHWA believes the total costs for retrofitting will
be $228 million. It should be noted that opportunity cost makes up
approximately 60 percent of the total cost. These estimates are for a
10-year period discounted at a 7-percent rate.

Benefits of a Retrofitting Requirement

    The estimated benefits of this rulemaking are a reduction in the
number of fatalities, injuries, and property damage only incidents
caused by nighttime accidents in which a passenger car collides with
the rear or side of a trailer. The FHWA estimates that over a 10-year
period, a total of 102 fatalities and 1,766 injuries will be prevented
because of this rule. The following table shows the number of accidents
and injuries prevented. The net present value of this level of accident
reduction is $360 million.
    The reduction in fatalities comprises the largest component of
benefits. The second largest component is maximum adjusted injury scale
(MAIS) 3 accidents.<SUP>2</SUP>
---------------------------------------------------------------------------

    \2\ The Abbreviated Injury Scale (AIS) was developed by the
American Medical Association and the American Association for
Automotive Medicine to measure the threat to life of an accident.
The MAIS refers to the maximum (most severe) injury sustained in a
crash. The scale ranges from 0 for no injury to 6 for a fatality. A
more detailed discussion of MAIS, including examples of the types of
injuries that are included in each of the levels, is included in the
FHWA's preliminary regulatory evaluation for this rulemaking. A copy
of the PRE is contained in FHWA Docket No. MC-94-1; 97-2222.

               Distribution of Dollar Amounts of Benefits
------------------------------------------------------------------------
                                                               Percent
                   Severity                       Number        total
                                                              benefits
------------------------------------------------------------------------
PDO..........................................        2,556           3.1
MAIS 1.......................................        1,372           5.6
MAIS 2.......................................          257           7.3
MAIS 3.......................................          111          11.1
MAIS 4.......................................           17           4.2
MAIS 5.......................................            9           4.7
Fatality.....................................          102          64
------------------------------------------------------------------------

    Benefits are spread unevenly over the 10-year analysis period.
Benefits are expected to peak two years after the effective date of the
final rule, after which there is a slow decline. Two years after the
effective date of the final rule, all trailers covered by the
retrofitting requirement will have conspicuity treatments. As the
population of pre-1993 trailers decreases, the benefits of the
retrofitting rule will decline. This pattern holds for both discounted
and non-discounted dollars, as well as for accidents. By the middle of
the year 2001, all trailers will be equipped with conspicuity
treatments, and nighttime accidents should fall by 15 percent (for
retrofitted trailers still in use).

      Summary of Costs and Benefits of Conspicuity Retrofit Options
------------------------------------------------------------------------
     Options for retrofitting phase-in period        2 years    5 years
------------------------------------------------------------------------
Estimated number of trailers that would have to be    815,000    502,000
 retrofitted......................................

[[Page 15603]]

Estimated benefits ($ millions)...................       $360       $172
Estimated costs ($ millions)......................       $228        $82
Estimated Net Benefit ($ millions)................       $132        $90
Benefit-to-cost ratio.............................       1.58       2.10
Fatalities prevented (during a 10-year period)....        102         51
Injuries prevented (during a 10-year period)......      1,766        876
------------------------------------------------------------------------

    The benefit of this regulation results from an expected 15 percent
reduction in nighttime side and rear crashes into trailers, and an
expected 19 percent reduction in the severity of certain property
damage only accidents. These estimates come from the NHTSA, which
performed extensive fleet evaluations in the 1980's. According to the
NHTSA, these kinds of accidents result in an average of 536 fatalities
annually, and almost 8,800 injuries, most of which are minor. This
proposal would prevent approximately 102 fatalities over a 10-year
period.
    The monetary value of these benefits range from over $360 million
for the 2-year phase in to $172 for the 5 year phase in. Under all of
the phase-in options considered in this rulemaking, the ratio of the
benefits-to-costs exceeds 1.5, with the ratio increasing as the phase-
in period is extended. More importantly, all three scenarios yield net
benefits (benefits minus costs) in excess of $90 million, with net
benefits increasing to more than $132 million as the phase-in period is
shortened to two years.

Discussion of the Requirements of the Final Rule

    The FHWA is amending the FMCSRs by adding Sec. 393.13,
Retroreflective sheeting and reflex reflectors, requirements for
semitrailers and trailers manufactured before December 1, 1993. This
section is being added to subpart B of part 393, Lighting Devices,
Reflectors, and Electrical Equipment. Paragraph (a) provides the
applicability for Sec. 393.13. The requirements do not apply to
trailers that are manufactured exclusively for use as offices or
dwellings because these types of trailers are rarely transported at
night. The FHWA is excluding pole trailers (as defined in Sec. 390.5)
from the conspicuity requirements because these trailers generally do
not have side and rear surfaces to which conspicuity treatments could
be applied in a cost-effective manner. The agency notes that
Sec. 393.11 does require lamps and reflectors on pole trailers and
requests comments on whether retrofitting of conspicuity materials
should be required on all pole trailers, including those that are
currently manufactured without any type of conspicuity treatment.
    In addition, the FHWA is excluding trailers that are being towed in
a driveaway-towaway operation (as defined in Sec. 390.5). This is not a
blanket exception for certain types of trailers, but an exception that
covers certain movements of trailers. Examples of the types of
transportation that are covered include movements between a dealership
or other entity selling or leasing the trailer and a purchaser or
lessee, to a maintenance/repair facility for the repair of disabling
damage (as defined in Sec. 390.5).
    Paragraph (b) encourages motor carriers to retrofit their trailers
with a conspicuity system that meets all of the requirements applicable
to trailers manufactured on or after December 1, 1993, but allows the
use of alternate color or color combination of retroreflective sheeting
or reflex reflectors during a 10-year transition period. At the end of
the 10-year period, all trailers are required to have conspicuity
treatments identical to the NHTSA requirements. Although the FHWA is
allowing motor carriers a certain amount of flexibility with regard to
the colors of retroreflective tape or reflex reflectors, the locations
for the conspicuity treatments are required to conform to those
specified in the NHTSA regulations.
    Paragraph (c) covers the locations for retroreflective sheeting,
excluding the use of the reflective material on the rear underride
device. Paragraph (d) specifies the locations for the arrays of reflex
reflectors, excluding the use of reflex reflectors on the rear
underride device. The FHWA recognizes the concerns that motor carriers
have about conspicuity treatments on the rear impact guards or rear
underride devices. Consequently, the agency decided not to require
motor carriers to apply conspicuity material to the rear underride
device.
    With regard to the compliance date for the retrofitting
requirements, the FHWA is allowing motor carriers 2 years from the
effective date of the final rule to retrofit trailers operated in
interstate commerce. Motor carriers are allowed 10 years from the
effective date of the final rule to replace non-conforming conspicuity
treatments with ones that meet the NHTSA requirements for newly
manufactured trailers.

Applicability to Canadian and Mexican Vehicles

    The final rule is applicable to trailers operated in the United
States by Canada- and Mexico-based motor carriers. Although the
Provincial and Territorial governments of Canada are implementing
conspicuity retrofitting requirements which would not be enforced until
January 1, 2002, and the Federal government of Mexico has not indicated
whether it intends to require retrofitting of the trailers operating in
their countries, the FHWA believes that it is appropriate to require
retrofitting of conspicuity treatments on foreign-based trailers
manufactured prior to December 1, 1993, if those vehicles are operated
within the United States. This decision is consistent with the
applicability of the requirements of parts 393 and 396 of the FMCSRs
and ensures that all commercial motor vehicles operating in interstate
or foreign commerce within the United States are required to meet the
same safety standards.

Rulemaking Analysis and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures

    The FHWA has determined that this action is a significant
regulatory action within the meaning of Executive Order 12866 and
significant within the meaning of Department of Transportation
regulatory policies and procedures. The FHWA has prepared a final
economic assessment of the economic impact the regulatory changes will
have on the motor carrier industry. A copy of the final assessment is
included in the docket file.
    The FHWA estimates that the total costs for motor carriers to
comply with the proposed requirements within a 2-year period will be
$228 million, with the safety and economic benefits totaling $360
million. The FHWA estimates that this rulemaking will apply to 815,000
trailers. It is estimated that the rule will, over a 10-year period,
prevent 102 fatalities and 1,766 injuries associated with passenger
cars colliding with trailers. In addition, this rule would prevent
approximately 2,556 property damage only accidents.
    The costs are considered one-time costs in that the conspicuity
treatments will not need to be replaced during the remaining years of
the useful service lives of the trailers that would be subject to the
retrofitting requirement. The estimates for the benefits are the total

[[Page 15604]]

expected benefits over the remaining years of useful service lives of
the trailers that will be retrofitted. A copy of the FHWA's final
regulatory evaluation has been placed in the docket.

Regulatory Flexibility Act

    The FHWA has evaluated the effects of the regulatory changes on
small entities. A copy of the analysis on the small entity impact is
provided in the docket file. Generally, the costs per trailer for
retrofitting is expected to be comparable, but not necessarily
identical, for both large motor carriers and small motor carriers. For
example, large carriers will be able to obtain discounts when ordering
conspicuity materials in bulk. The costs for the retroreflective tape
needed to comply with the proposed requirement is $66.18 for 28 foot
trailers, $84.48 for 40-42 foot trailers, and $94.33 for 45-53 foot
trailers. The FHWA's estimates of labor costs are $60, $70, and $80 for
the
28-, 40-42, and 45-53 foot trailers, respectively. The FHWA believes
the opportunity cost is approximately $140 per trailer. Therefore, the
costs per trailer for small entities is $266 for 28-foot trailers, $294
for 40-42 foot trailers, and $314 for 45-53 foot trailers. The costs
only apply to small entities that have trailers that were manufactured
before December 1, 1993, and have not already been retrofitted with a
conspicuity system that will satisfy the requirements of this rule.
Furthermore, the costs will only be applicable if the small entities
intend to continue to operate these older trailers after the 2-year
phase-in period.
    As of September 1996, the FHWA estimates that there were
approximately 382,128 interstate motor carriers. Of these carriers,
136,360 own, term-lease or trip-lease 6 or fewer trailers (68,405 have
1 trailer, 45,770 have 2-3 trailers, and 22,185 have 4-6 trailers). The
number of motor carriers that own, term-lease or trip-lease more than 6
trailers, but fewer than 21 is 21,793 (6,658 carriers have 7-8
trailers, 6,197 have 9-11 trailers, 3,887 carriers have 12-14 trailers,
2,779 carriers have 15-17 trailers, and 2,272 carriers have 18-20
trailers). If only those motor carriers that own, term-lease, or trip-
lease 20 or fewer trailers are considered small entities, this
rulemaking could have an economic impact on up to 158,153 small
entities.
    The economic impact on each of the motor carriers will vary
depending on the number of trailers that the carrier would be
responsible for retrofitting by the end of the 2-year phase-in period,
and the size of those trailers. If, for example, the carrier only
operates one 45-53 foot trailer, the total economic impact will be
$314. If the carrier operates 20 such trailers that have to be
retrofitted, the total economic impact would be $ 6,280.
    The Small Business Administration (SBA), which oversees agencies'
compliance with the Regulatory Flexibility Act, has published
guidelines to classify small business. The SBA has indicated that for
entities engaged in motor freight transportation and warehousing, small
businesses are those with $18.5 million or fewer dollars in annual
receipts. Therefore, if the motor carrier described in the preceding
example is a private motor carrier with its principal business being
something other than transportation, and operates 20, 45-53 foot
trailers and has annual receipts of $18.5 million, the total economic
impact would be less than one-tenth of one percent of the private motor
carrier's annual receipts ($6,280/$18.5 million). If this carrier
operated 100 trailers and had annual receipts of $18.5 million, the
economic impact would be approximately two-tenths of one percent of the
carrier's annual receipts ($31,400/$18.5 million).
    Based on its analysis summarized above, the FHWA believes that this
rule will affect a substantial number of small entities, but will not
have a significant impact on these entities. The FHWA, in compliance
with the Regulatory Flexibility Act (Pub. L. 96-354; 5 U.S.C. 601-612),
has considered the economic impacts of these requirements on small
entities and certifies that this rule will not have a significant
economic impact on a substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rulemaking does not have sufficient Federalism implications
to warrant the preparation of a Federalism assessment. Nothing in this
document directly 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.

Paperwork Reduction Act

    This action does 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

    The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined that this action does not have any effect on the quality
of the environment.

Unfunded Mandates Reform Act

    This rule does not impose any unfunded mandates on State, local, or
tribal governments as defined by the Unfunded Mandates Reform Act of
1995 (2 U.S.C. 1532-1538). However, this rule will impose a Federal
mandate on the private sector requiring expenditure by motor carriers
of $100 million or more in any one year. Therefore, the FHWA has
prepared a separate written statement incorporating various
assessments, estimates, and descriptions that are delineated in the
Act. A copy of the FHWA's Regulatory Accountability and Reform Analyses
is included in the docket.
    The FHWA considered several regulatory alternatives and believes
that this rule adopts the least burdensome alternative that achieves
the objectives of the rule.
    The FHWA estimates that the conspicuity retrofitting rule will cost
the public approximately $228 million over two years. The cost applies
only to motor carriers subject to the Federal Motor Carrier Safety
Regulations. The agency estimates that the 10-year discounted monetary
value of the benefits (fatalities and injuries prevented, property
damage savings) is $360 million.
    The FHWA analyzed and compared the estimated costs and benefits of

two-, three-, and five-year phase-in period options for a retrofitting
requirement to determine the least costly alternative for improving
highway safety. The agency also considered the color-prescriptive
requirements to determine the least burdensome alternative for reducing
the incidence of passenger vehicles colliding with semitrailers and
trailers at nighttime and under other conditions of reduced visibility.
The agency proposed a two-year phase-in period for trailers that are
not currently equipped with retroreflective sheeting, and a 10-year
transition period for trailers that are equipped with alternative
colors or

[[Page 15605]]

color combinations. The agency is adopting a final rule consistent with
the proposal.
    The three-, and five-year phase-in periods would have reduced the
total costs of the rule but not the burden on individual motor carriers
operating pre-1994 trailers at the end of these phase-in periods.
Moreover, these alternatives would also reduce the benefits of
retrofitting trailers. The agency has determined that it is in the
public interest to require motor carriers to retrofit their trailers
within two years of the effective date of the final rule to save
additional lives, and prevent additional injuries and property-damage
only accidents.
    The two-year option provides for increased safety benefits over
those estimated for the three-, and five-year options. Both the costs
and benefits would drop significantly with a three- or five-year phase-
in period, as the number of trailers to be retrofit and the number of
fatalities, injuries, and property-damage only accidents avoided would
be reduced. Generally, the longer the phase-in period, the less benefit
there is to completing the rulemaking as the population of pre-1994
trailers decreases every year. Therefore, the agency believes there is
good cause for not choosing the least costly option.
    With regard to the burden on the motor carrier industry, the final
rule includes a 10-year transition period to ensure that most motor
carriers are not penalized for voluntarily retrofitting their
semitrailers and trailers with alternative colors or patterns. The
agency recognizes that some motor carriers will be forced to replace
their conspicuity treatments in order to comply with the requirements
for the year 2009 and beyond. The FHWA believes the final rule
represents a balance between regulatory flexibility and the need for
having a standard conspicuity treatment for commercial motor vehicles,
and is the least burdensome alternative that achieves the objectives of
the rule.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.

List of Subjects in 49 CFR Part 393

    Highway safety, Motor carriers, Reflectors.

    Issued on: March 26, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
    In consideration of the foregoing, the FHWA is amending title 49,
Code of Federal Regulations, chapter III, as follows:

PART 393--[AMENDED]

    1. The authority citation for part 393 continues to read as
follows:

    Authority: Section 1041(b) of Pub. L. 102-240, 105 Stat. 1914,
1993 (1991); 49 U.S.C. 31136 and 31502; 49 CFR 1.48.

    2. Section 393.13 is added to read as follows:

Sec. 393.13.  Retroreflective sheeting and reflex reflectors,
requirements for semitrailers and trailers manufactured before December
1, 1993.

    (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 Sec. 390.5),
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 have until
June 1, 2001 to comply with the requirements of this section.
    (b) Retroreflective sheeting and reflex reflectors. Motor carriers
are encouraged to retrofit their trailers with a conspicuity system
that meets all of the requirements applicable to trailers manufactured
on or after December 1, 1993, including the use of retroreflective
sheeting or reflex reflectors in a red and white pattern (see Federal
Motor Vehicle Safety Standard No. 108 (49 CFR 571.108), S5.7,
Conspicuity systems). Motor carriers which do not retrofit their
trailers to meet the requirements of FMVSS No. 108, for example by
using an alternative color pattern, must comply with the remainder of
this paragraph and with paragraph (c) or (d) of this section.
Retroreflective sheeting or reflex reflectors in colors or color
combinations other than red and white may be used on the sides or lower
rear area of the semitrailer or trailer until June 1, 2009. The
alternate color or color combination must be uniform along the sides
and lower rear area of the trailer. The retroreflective sheeting or
reflex reflectors on the upper rear area of the trailer must be white
and conform to the requirements of FMVSS No. 108 (S5.7). Red
retroreflective sheeting or reflex reflectors shall not be used along
the sides of the trailer unless it is used as part of a red and white
pattern. Retroreflective sheeting shall have a width of at least 50 mm
(2 inches).
    (c) Locations for retroreflective sheeting.
    (1) Sides. Retroreflective sheeting shall be applied to each side
of the trailer or semitrailer. Each strip of retroreflective sheeting
shall be positioned as horizontally as practicable, beginning and
ending as close to the front and rear as practicable. The strip need
not be continuous but the sum of the length of all of the segments
shall be at least half of the length of the trailer and the spaces
between the segments of the strip shall be distributed as evenly as
practicable. The centerline for each strip of retroreflective sheeting
shall be between 375 mm (15 inches) and 1,525 mm (60 inches) above the
road surface when measured with the trailer empty or unladen, or as
close as practicable to this area. If necessary to clear rivet heads or
other similar obstructions, 50 mm (2 inches) wide retroreflective
sheeting may be separated into two 25 mm (1 inch) wide strips of the
same length and color, separated by a space of not more than 25 mm (1
inch).
    (2) Lower rear area. The rear of each trailer and semitrailer must
be equipped with retroreflective sheeting. Each strip of
retroreflective sheeting shall be positioned as horizontally as
practicable, extending across the full width of the trailer, beginning
and ending as close to the extreme edges as practicable. The centerline
for each of the strips of retroreflective sheeting shall be between 375
mm (15 inches) and 1,525 mm (60 inches) above the road surface when
measured with the trailer empty or unladen, or as close as practicable
to this area.
    (3) Upper rear area. Two pairs of white strips of retroreflective
sheeting, each pair consisting of strips 300 mm (12 inches) long, must
be positioned horizontally and vertically on the right and left upper
corners of the rear of the body of each trailer and semitrailer, as
close as practicable to the top of the trailer and as far apart as
practicable. If the perimeter of the body, as viewed from the rear, is
not square or rectangular, the strips may be applied along the
perimeter, as close as practicable to the uppermost and outermost areas
of the rear of the body on the left and right sides.
    (d) Locations for reflex reflectors.

[[Page 15606]]

    (1) Sides. Reflex reflectors shall be applied to each side of the
trailer or semitrailer. Each array of reflex reflectors shall be
positioned as horizontally as practicable, beginning and ending as
close to the front and rear as practicable. The array need not be
continuous but the sum of the length of all of the array segments shall
be at least half of the length of the trailer and the spaces between
the segments of the strip shall be distributed as evenly as
practicable. The centerline for each array of reflex reflectors shall
be between 375 mm (15 inches) and 1,525 mm (60 inches) above the road
surface when measured with the trailer empty or unladen, or as close as
practicable to this area. The center of each reflector shall not be
more than 100 mm (4 inches) from the center of each adjacent reflector
in the segment of the array. If reflex reflectors are arranged in an
alternating color pattern, the length of reflectors of the first color
shall be as close as practicable to the length of the reflectors of the
second color.
    (2) Lower rear area. The rear of each trailer and semitrailer must
be equipped with reflex reflectors. Each array of reflex reflectors
shall be positioned as horizontally as practicable, extending across
the full width of the trailer, beginning and ending as close to the
extreme edges as practicable. The centerline for each array of reflex
reflectors shall be between 375 mm (15 inches) and 1,525 mm (60 inches)
above the road surface when measured with the trailer empty or unladen,
or as close as practicable to this area. The center of each reflector
shall not be more than 100 mm (4 inches) from the center of each
adjacent reflector in the segment of the array.
    (3) Upper rear area. Two pairs of white reflex reflector arrays,
each pair at least 300 mm (12 inches) long, must be positioned
horizontally and vertically on the right and left upper corners of the
rear of the body of each trailer and semitrailer, as close as
practicable to the top of the trailer and as far apart as practicable.
If the perimeter of the body, as viewed from the rear, is not square or
rectangular, the arrays may be applied along the perimeter, as close as
practicable to the uppermost and outermost areas of the rear of the
body on the left and right sides. The center of each reflector shall
not be more than 100 mm (4 inches) from the center of each adjacent
reflector in the segment of the array.

[FR Doc. 99-7827 Filed 3-26-99; 11:50 am]
BILLING CODE 4910-22-P