[Federal Register: November 19, 2004 (Volume 69, Number 223)]
[Rules and Regulations]
[Page 67663-67668]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19no04-9]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. NHTSA-2004-19033]
RIN 2127-AI56
Federal Motor Vehicle Safety Standards; Rear Impact Guards; Final
Rule
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This document amends the Federal motor vehicle safety standard
No. 224, ``Rear impact protection'' (FMVSS No. 224), to exclude road
construction controlled horizontal discharge semitrailers (RCC
horizontal discharge trailers) from the requirements of the standard.
The RCC horizontal discharge trailers are used in the road construction
industry to deliver asphalt to construction sites and gradually
discharge asphalt mix into the paving machines overlaying the road
surface. The agency has concluded that installation of the rear impact
guards, as required by FMVSS No. 224, on RCC horizontal discharge
trailers would interfere with their intended function and is therefore
impracticable due to the unique design and purpose of these vehicles.
DATES: Effective Date: This rule is effective December 20, 2004.
Petitions: Petitions for reconsideration must be received by
January 3, 2005.
ADDRESSES: Petitions for reconsideration should refer to DOT Docket No.
NHTSA-2004-19033 and be submitted to: Administrator, Room 5220,
National Highway Traffic Safety Administration, 400 7th Street, SW.,
Washington, DC 20590.
Please see the Privacy Act heading under Regulatory Notices.
FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call
Michael Huntley, Office of Vehicle Safety Standards, (Telephone: 202-
366-0029) (Fax: 202-493-2739) (E-Mail: Michael.Huntley@nhtsa.dot.gov).
For legal issues, you may call Mr. George Feygin, Office of Chief
Counsel, (Telephone: 202-366-2992) (Fax: 202-366-3820) (E-Mail:
George.Feygin@nhtsa.dot.gov).
You may send mail to either of these officials at: National Highway
Traffic Safety Administration, 400 7th Street, SW., Washington, DC
20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Notice of Proposed Rulemaking
III. Summary of Comments
IV. Agency Analysis and Decision
A. Impracticability
B. Alternative Methods of Compliance and Alternative Vehicles
1. Special purpose vehicles and wheels back trailers
2. Use of dump trucks instead of RCC Horizontal discharge
trailers
C. Safety Consequences
D. Statutory Mandate to Ensure Practicability of Safety
Standards
E. Request to Exempt Gravity Feed Dump Trailers
V. Estimated Costs and Benefits
VI. Rulemaking Analyses and Notices
I. Background
Underride occurs when a light vehicle, such as a passenger car,
crashes into the rear end of a heavy truck that has a chassis higher
than the hood of the light vehicle. In certain instances, the light
vehicle slides under or ``underrides'' the rear end of the heavy
vehicle such that the rear end of the trailer strikes and enters the
passenger compartment of the light vehicle, resulting in passenger
compartment intrusion (PCI). PCI crashes can result in severe injuries
and fatalities to the light vehicle occupants due to occupant contact
with the rear end of the heavy truck.
In an attempt to reduce the frequency and severity of underride
collisions, NHTSA issued FMVSS No. 224.\1\ The standard requires that
all new trailers and semitrailers with a Gross Vehicle Weight Rating
(GVWR) of 10,000 lbs or more be equipped with a rear impact guard
(underride guard). The underride guard is attached to the rear of the
trailer (within 12 inches [305 mm] of the rear extremity of the
vehicle) and acts to prevent the light vehicle from sliding under the
trailer chassis.
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\1\ See 61 FR 2004, January 24, 1996.
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The RCC horizontal discharge trailer is a unique piece of equipment
used in the road construction industry to deliver asphalt and other
building materials to a construction site. The trailer is equipped with
a mechanical drive and a horizontal conveyor, which gradually
discharges asphalt mix into a paving machine overlaying the road
surface with asphalt material.
With respect to FMVSS No. 224, the RCC horizontal discharge
trailer's most unique and technologically problematic feature stems
from the fact that the rear of the trailer is designed to connect with
and latch onto various paving machines. Typically, the paving machine
attaches to the rear axle of the RCC horizontal discharge trailer via
hydraulic arms, and the edge of the trailer's conveyor belt extends
over the paving machine opening. An underride guard required by FMVSS
No. 224 would prevent the RCC horizontal discharge trailer from
effectively connecting with a paving machine.
Connection with paving equipment is critical to the road
construction process as it allows the RCC horizontal discharge trailer
to deposit asphalt mix directly into the paving machine hopper. This
method also allows for a more controlled off-loading, as compared to a
dump trailer, which is the other type of vehicle capable of delivering
asphalt mix to road construction sites.\2\
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\2\ Because the horizontal discharge trailers do not rise to
unload their contents like steel end dump trailers, they can be used
on uneven terrain or where overhead obstructions such as bridges and
power lines completely prevent the use of dump trailers.
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This rulemaking was initiated by a joint petition on behalf of Dan
Hill & Associates, Inc. (Dan Hill), and Red River Manufacturing, Inc.,
a Division of Trail King Industries, Inc. (Red River).\3\ Dan Hill and
Red River are manufacturers of RCC horizontal discharge trailers. Their
petition requested that the agency amend FMVSS No. 224 to ``exclude
construction controlled horizontal discharge semitrailers from the
scope of the standard.'' Since the effective date of the standard,\4\
Dan Hill and Red River have each received a temporary exemption from
the requirements of FMVSS No. 224, in part because of the
impracticability of installing underride guards on RCC horizontal
discharge trailers.\5\
FMVSS No. 224 currently excludes pole trailers, pulpwood trailers,
wheels
[[Page 67664]]
back trailers, and ``special purpose vehicles'' because attachment of
an underride guard to these specific vehicles is either impracticable
or unnecessary.\6\ For example, in the case of a wheels back trailer,
the rear axle is located within 12 inches of the rear extremity of the
vehicle. Because the rear wheels are located so close to the rear
extremity of the vehicle, they act as an underride guard, making
underride virtually impossible.
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\3\ See Docket No. NHTSA-2001-8876-4.
\4\ FMVSS No. 224 became effective January 26, 1998; see 61 FR
2004 (January 24, 1996).
\5\ The temporary exemptions were based or the ``substantial
economic hardship'' grounds under 49 CFR 555.6(a). Nevertheless, the
economic hardship was rooted in impracticability of installing
underride guards. Both exemptions have since been renewed. See 68 FR
28880 (May 27, 2003).
\6\ ``Special purpose vehicle'' means a trailer or a semitrailer
having work-performing equipment that, while the vehicle is in
transit, resides in or moves through the area that could be occupied
by the horizontal member of the rear underride guard. See 49 CFR
571.224. Examples of special purpose vehicles are dump trailers,
auto transporters, and trailers equiped with lift gates.
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The RCC horizontal discharge trailers subject to this notice do not
fit the current definition of special purpose vehicles. Because of
their unique design necessitated by their interactions with the paving
machines, a practicable RCC horizontal discharge trailer is also ill
suited for a wheels back design exception. In sum, the RCC horizontal
discharge trailers do not fall under any exclusion currently available
in FMVSS No. 224. At the same time, complying with the standard is
impracticable due to the unique design and purpose of these vehicles.
In their March 23, 2001 joint petition, Dan Hill and Red River
requested that NHTSA amend FMVSS No. 224 to exclude construction
controlled horizontal discharge trailers from FMVSS No. 224. According
to the petitioners, the two parties together account for virtually all
of RCC horizontal discharge trailer manufacturing. Approximately 0.12%
of all trailers produced in the U.S. are RCC horizontal discharge
trailers. Both manufacturers claim to have been unsuccessful in their
independent efforts to develop an underride guard that is compliant,
functional, and capable of interfacing with road-building equipment
with which these vehicles are designed to work. A discussion of these
various attempts is provided below. Based on their attempts to
manufacture a compliant trailer that remains functional and safe under
real world operating conditions, petitioners believe that bringing RCC
horizontal discharge trailers into compliance with FMVSS No. 224 is not
practically feasible. Both manufacturers stated failure to amend the
standard would effectively terminate production of RCC horizontal
discharge trailers unless petitioners continued to receive temporary
exemptions.
II. Notice of Proposed Rulemaking
On September 19, 2003, NHTSA published a Notice of Proposed
Rulemaking to exclude RCC horizontal discharge trailers from the
requirements of FMVSS No. 224.\7\
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\7\ See 68 FR 54879.
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In the NPRM, we described the apparent difficulty associated with
installing underride guards on RCC horizontal discharge trailers
without interfering with their intended function. We stated that, based
on the joint petitions for rulemaking and previous petitions for
temporary exemptions, there did not appear to be a practicable solution
that would bring RCC horizontal discharge trailers in compliance with
FMVSS No. 224. Accordingly, NHTSA proposed to exclude RCC horizontal
discharge trailers from the requirements of FMVSS No. 224 by adding RCC
horizontal discharge trailers to the list of excluded vehicles in S3 of
the Standard.
To ensure that the standard excluded only the specific type of the
vehicles discussed in this notice, we proposed the following definition
of RCC horizontal discharge trailers:
``a trailer or semitrailer that is equipped with a mechanical drive
and a conveyor to deliver asphalt and other road building materials,
in a controlled horizontal manner, into a lay down machine or paving
equipment for road construction and paving operations.''
In order to better understand practicability issues associated with
bringing RCC horizontal discharge trailers in compliance with FMVSS No.
224, the agency asked for comment on the following questions:
1. Is a wheels back design a practical vehicle design alternative
for RCC horizontal discharge trailers?
2. What is the maintenance and performance history of RCC
horizontal discharge trailers with wheels back design?
3. Is a retractable underride guard design a practical solution for
RCC horizontal discharge trailers? Does such a design create a risk of
injury to workers operating or working near the trailer?
4. What is the maintenance and performance history of RCC
horizontal discharge trailers with retractable underride guards?
5. Has any manufacturer of RCC horizontal discharge trailers
subject to this notice been able to alternatively design a compliant
vehicle equipped with an underride guard, that is able to slide over
the paving machine in order to discharge asphalt mix?
III. Summary of Comments
The agency received 24 comments in response to the September 19,
2003 NPRM. Specifically, we received three comments from RCC horizontal
discharge manufacturers; seventeen comments from road construction
companies; two comments from Associated General Contractors of America,
a comment from a RCC horizontal discharge trailer reseller; and a
comment from a gravity feed dump trailer manufacturer.
All comments supported the proposed amendment to exclude RCC
horizontal discharge trailers from the requirements of FMVSS No. 224.
Several commenters emphasized impracticability issues associated with
installing underride guards on RCC horizontal discharge trailers. Other
comments from the road construction companies indicated their
preference for horizontal discharge trailers over dump trucks. One
commenter urged the agency to exclude gravity feed dump trailers in
addition to RCC horizontal discharge trailers.
IV. Agency Analysis and Decision
Based on our consideration of the comments and other available
information, the agency is issuing this final rule to amend FMVSS No.
224 to exclude RCC horizontal discharge trailers from the requirements
of the standard. The basis for our decision is discussed below.
A. Impracticability
Manufacturing a RCC horizontal discharge trailer to accommodate an
underride guard has proven impracticable because the rear of the
trailer is designed to connect with paving equipment. As previously
discussed, the paving machine typically attaches to the rear axle of an
RCC horizontal discharge trailer via hydraulic arms, and the edge of
the trailer's conveyor belt extends over the paving machine opening.
This configuration is critical to the road construction process as it
allows the RCC horizontal discharge trailer to deposit asphalt mix
directly into the paving machine hopper. A fixed underride guard
prevents paving machines from interfacing with (locking onto) the RCC
horizontal discharge trailer during the paving operations.\8\
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\8\ See comments from Mayo Construction Co., NHTSA-2003-14396-
16.
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In the NPRM, we detailed petitioners' independent efforts to
develop an underride guard that is compliant, safe under real-world
operating conditions, and capable of interfacing with road-
[[Page 67665]]
building equipment with which these vehicles are designed to work.
First, petitioners considered installing a retractable underride
guard that would be engaged when the RCC horizontal discharge trailer
travels to and from the actual construction sites, and retracted when
the RCC horizontal discharge trailer is attached to the paving machine.
However, designing a retractable underride guard suitable for this
application has proven impractical for several reasons, chiefly among
them the lack of adequate clearance. The edge of the RCC horizontal
discharge trailer must extend over the paving machine in order to drop
the hot asphalt mix into the hopper. Because paving machines differ in
size and configuration, the trailer must allow for paving machines of
different heights to slide under the conveyor structure. Typically, the
paving machine openings are 31 to 35 inches off the ground. Conveyor
structures of the RCC horizontal discharge trailers are normally 36 to
37 inches off the ground. As a result, the underride guard has to
retract completely against the conveyor structure, in order to not
interfere with the paving machine. Achieving such ``flush'' retraction
has not proven feasible. Additionally, raising the overall ground
clearance of the RCC horizontal discharge trailer in order to provide
adequate clearance for a retractable underride guard would raise the
center of gravity of the trailer, possibly making the vehicle more
prone to rollovers.
Another difficulty in installing a retractable underride guard
involves the location of a planetary gearbox that drives the conveyor
system. The gearbox is located where a retractable underride guard
system would otherwise be located. Further, asphalt accumulations on
the underride guard cause certain maintenance problems, which have not
yet been solved. Specifically, a retractable underride guard has mating
surfaces that slide over each other. These surfaces would be under
constant exposure to hot asphalt, which would result in mating surfaces
sticking to each other. The hot mix asphalt materials that adhere to
the guard surface may render it ineffective and may pose a risk of
injury to the truck or machine operator.
In response to the NPRM, we received several comments on the
practicability of a retractable underride guard. Ace Asphalt Paving
Co., Keeler Construction Co., Rose's Enterprises and EDW. C. Levy Co.
all stated that a retractable guard will result in increased cost and
would increase the risk of an injury associated with employees being
too close to the guard as it is being retracted or lowered. Red River
reiterated that a retractable guard could pose a risk to construction
workers because asphalt buildup would jam the retraction mechanism.
Additional efforts by the petitioners to bring their product into
compliance with FMVSS No. 224 have similarly failed. Specifically,
petitioners considered adding removable underride guards. They rejected
this approach because of concerns that workers would fail to replace
the underride guard before transit.
The agency did not receive comments directly addressing removable
underride guards. Nevertheless, the agency continues to believe that
removable underride guards are not a practicable solution. Because the
standard applies only to new vehicles, this design approach would allow
RCC horizontal discharge trailer manufacturers to meet FMVSS No. 224.
However, given the inconvenience associated with continually removing
and reinstalling a removable guard, it is likely that at some point the
guard would be removed permanently. This scenario is inconsistent with
the overall intent of the standard, which is to reduce the likelihood
of underride collisions on U.S. highways.
Therefore, the agency concludes that installing underride guards on
RCC horizontal discharge trailers is impracticable.
B. Alternative Methods of Compliance and Alternative Vehicles
1. Special Purpose Vehicles and Wheels Back Trailers
As previously discussed, S.3 of FMVSS No. 224 contains certain
exceptions to the requirements of the standard. Specifically, ``wheels
back'' trailers, and ``special purpose vehicles'' need not comply with
FMVSS No. 224 because attachment of an underride guard to these
specific vehicles is either impracticable or unnecessary. Neither
exception applies to RCC horizontal discharge trailers.
A special purpose vehicle is defined as ``* * * a trailer or a
semitrailer having work-performing equipment that, while the vehicle is
in transit, resides in or moves through the area that could be occupied
by the horizontal member of the rear underride guard'' \9\ Examples of
special purpose vehicles are auto transporters, and certain trailers
equipped with lift gates.
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\9\ See S4 of 49 CFR Sec. 571.224.
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The RCC horizontal discharge trailers subject to this rulemaking do
not fit the current definition of special purpose vehicles,
notwithstanding their unique nature and their work-performing
equipment, because technically, their work-performing equipment does
not move through or reside in the area in which the underride guard
would be attached.
Wheels back trailer are equipped with a rear axle that is located
within 305 mm (12 inches) of the rear extremity of the vehicle. Because
the rear wheels are located so close to the rear extremity of the
vehicle, they act as an underride guard, making PCI virtually
impossible.
Because of the unique design necessitated by their interactions
with the paving machines, a practicable RCC horizontal discharge
trailer is ill-suited for a wheels back design. As previously
mentioned, a RCC horizontal discharge trailer is designed to extend
over a paving machine in order to drop the hot asphalt mix into the
hopper. A rear axle located within 12 inches of the rearmost extremity
would prevent the trailer from properly extending over the paving
machine. In fact, several commenters confirmed that a RCC horizontal
discharge trailer with a rear axle located within 12 inches of the
rearmost extremity is unacceptable. For instance, Barre Stone Products,
Inc. (Barre) stated that a 33-inch overlap between the RCC horizontal
discharge trailer and the paving machine is necessary to ensure proper
interaction between the hopper and the trailer, and to prevent spillage
of asphalt material. Barre further noted that the wheels back design
would not allow for proper articulation between the RCC horizontal
discharge trailer and the paving machine at the point where they are
joined. Accordingly, the agency concludes that wheels back design does
not provide for a practicable solution for compliance with FMVSS No.
224.
In sum, RCC horizontal discharge trailers do not fall under any
preexisting exclusions to the requirements of FMVSS No. 224 and cannot
be effectively altered to fit these exclusions.
2. Use of Dump Trucks Instead of RCC Horizontal Discharge Trailers
In evaluating available alternatives, NHTSA also considered the
implications of not exempting RCC horizontal discharge trailers from
the requirements of FMVSS No. 224. If RCC horizontal discharge trailers
were no longer available to the road construction industry, the
industry would have to rely on dump trucks to deliver asphalt to the
construction sites. In the NPRM we stated that RCC horizontal discharge
trailers appear to allow for a more controlled off-loading, as compared
to a
[[Page 67666]]
dump truck, which tends to discharge large quantities of asphalt mix
instantly. A more controlled offloading not only prevents spillage of
asphalt and other debris on the road surfaces, but also ensures a more
leveled road surface construction. Furthermore, dump trucks may not be
able to operate in situations where overhead obstructions such as
bridges and power lines prevent raising the bed to unload asphalt
materials.
In response to the NPRM, the agency received several comments from
the road construction industry indicating their preference for RCC
horizontal discharge trailers over dump trucks. Specifically, Central
Specialties, Inc., and Las Vegas Paving Corp., stated that RCC
horizontal discharge trailers are preferable to dump trucks because
they allow for a more controlled delivery of asphalt, thus reducing the
instances of spills and accidents on job sites. Further, RCC horizontal
discharge trailers reduce or prevent asphalt material segregation
during delivery. This makes road construction material more durable,
resulting in better roads. By contrast, dump trucks cannot prevent
asphalt material segregation, leading to a degradation in the quality
of asphalt during transit. Manatt's Inc., and Mayo Construction, Co.,
noted that dump trucks are ineffective in delivering asphalt to uneven
ground areas and present a serious safety hazard in areas with overhead
power lines.
Based on the industry comments confirming the benefits of utilizing
RCC horizontal discharge trailers in certain road construction
operations, the agency concludes that dump trucks do not always present
a viable alternative to RCC horizontal discharge trailers and cannot
effectively replace them in all circumstances.
C. Safety Consequences
The agency has examined the possible safety consequences of
excluding RCC horizontal discharge trailers from FMVSS No. 224. We note
that RCC horizontal discharge trailers travel on U.S. highways only
infrequently, in order to deliver the hot asphalt mix to the road
construction sites. These vehicles spend most of their time in a
controlled environment of a construction site, surrounded by paving
machines and construction traffic control equipment (e.g. traffic
cones, safety signs), where a risk of underride collision is virtually
nonexistent.\10\ Further, only a very small number of all trailers
(approximately 0.12%) produced in the U.S. are RCC horizontal discharge
trailers. Accordingly, the agency concludes that the risk of a severe
underride collision with an RCC horizontal discharge trailer is
substantially lower than that of other vehicles subject to FMVSS No.
224.
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\10\ Neither Fatal Analysis Reporting System (FARS), the
National Automotive Sampling System (NASS), nor the General
Estimates System (GES) data files that we have examined include
crash information pertaining specifically to horizontal discharge
trailers. We have examined underride and horizontal discharge
trailer information from hard copies of police accident reports
(PARs) for 74 selected 1999-2001 FARS cases and 75 cases from the
1999-2001 NASS on-line summary files. A careful examination of
photographs (where available) and other related information yielded
no indication of rear end collisions involving horizontal discharge
trailers.
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D. Statutory Mandate To Ensure Practicability of Safety Standards
When prescribing a motor vehicle safety standard, NHTSA is required
to ensure that the standard is reasonable, practicable, and appropriate
for the particular type of motor vehicle equipment for which it is
prescribed (49 U.S.C. 30111(b)(3)). As discussed above, NHTSA has
concluded that installing underride guards on RCC horizontal discharge
trailers is impracticable. Further, comments from the road construction
industry confirm that it is similarly impracticable to design an RCC
horizontal discharge trailer that would fall under the existing wheels
back exception. Therefore, the agency concludes that it is appropriate
to exclude RCC horizontal discharge trailers from FMVSS No. 224.
E. Request To Exempt Gravity Feed Dump Trailers
In response to the NPRM, we received a comment from Reliance
Trailer Co. (Reliance), requesting that NHTSA amend the definition of
an RCC horizontal discharge trailers to include gravity feed dump
trailers. Reliance is a trailer manufacturer specializing in gravity
feed dump trailers for the use in road construction industry.\11\ After
carefully considering Reliance's request, NHTSA declines to exclude
gravity feed dump trailers from the requirements of the standard.
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\11\ On June 1, 2004 NHTSA granted Reliance a temporary
exemption from FMVSS No. 224 based on substantial economic hardship,
and in part, on impracticability of compliance with the standard.
For detail on the exemption, please see 69 FR 30989.
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A RCC horizontal discharge trailer is a single-purpose vehicle
designed to deliver and discharge asphalt materials into paving
equipment in a controlled manner. Unlike the RCC horizontal discharge
trailers, gravity feed dump trailers are versatile vehicles used for a
multitude of tasks. Often, gravity feed dump trailers are used in a way
that does not require controlled offloading or interaction with other
equipment such as paving machines. Further, many gravity feed dump
trailers fall under wheels back exception. Others can easily
accommodate an underride guard.
Because it is not impracticable for all gravity feed dump trailers
to comply with FMVSS No. 224, the agency prefers to review the
necessity of exempting gravity feed dump body trailers within the
context of temporary exemptions pursuant to 49 CFR Part 555. In certain
limited circumstances, the agency grants temporary exemptions to
gravity feed dump trailer manufacturers based, in part, on
impracticability of compliance. In fact, several gravity feed dump
trailer manufacturers, including Reliance, have previously received
exemptions from FMVSS No. 224.\12\
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\12\ See 68 FR 7406 (February 13, 2003), exempting Columbia Body
Manufacturing Co. from FMVSS No. 224.
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The agency notes that gravity feed dump trailers are more common
and represent a larger vehicle population compared to RCC horizontal
discharge trailers. Accordingly, we are concerned that exempting a
larger vehicle population from the requirements of the standard may
lead to negative safety consequences exceeding those associated with
exempting only the RCC horizontal discharge trailers. Because of a
larger vehicle population and because of their versatility of use, the
agency cannot conclude that a risk of an underride collision with a
gravity feed dump trailer is negligible. Finally, we note that
Reliance's request is outside the scope of the NPRM, and this
rulemaking action cannot exempt other types of vehicles from the
requirements of FMVSS No. 224 without further notice.
V. Estimated Costs and Benefits
This final rule will not result in any additional cost burdens on
any regulated parties. Exclusion of RCC horizontal discharge trailers
from the requirements of FMVSS No. 224 will benefit RCC horizontal
discharge trailer manufacturers and members of the road construction
industry utilizing these vehicles because RCC horizontal discharge
trailer manufacturers would not have to expend further financial
resources in attempting to bring RCC horizontal discharge trailers into
compliance with FMVSS No. 224.
The cost benefits associated with this final rule will result from
the petitioners' and other third parties' ability to continue
manufacturing and marketing their products. Currently, petitioners'
ability to offer RCC
[[Page 67667]]
horizontal discharge trailers depends on temporary exemptions. Further,
E.D. Etnyre & Co. and other manufacturers who may have suffered sale
volume losses as a result of offering a wheels back or other designs
unpopular with typical RCC horizontal discharge trailer purchasers, may
once again gain market share by offering a product that is more
suitable to the industry needs. The actual costs savings to RCC
horizontal discharge trailer manufacturers are difficult to estimate
because petitioners have not been able to produce a viable underride
guard for the equipment in question.
We also anticipate certain cost savings by members of the road
construction industry based on their comments stating their preference
of RCC horizontal discharge trailers to dump trailers. Road
construction industry costs savings are not quantified because road
construction companies did not submit data sufficient to enable NHTSA
to create an actual cost estimate.
There are no safety benefits associated with this proposed
rulemaking. As discussed in Section IV, however, we anticipate that
because of very limited production, and similarly limited highway use
exposure, there are minimal safety disbenefits associated with this
final rule.
VI. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
E.O. 12866 and the Department of Transportation's regulatory policies
and procedures. This final rule was not reviewed under E.O. 12866,
``Regulatory Planning and Review.'' This action has been determined to
be ``nonsignificant'' under the Department of Transportation's
regulatory policies and procedures. The agency concludes that the
expected impact of the final rule is so minimal that the final rule
does not warrant preparation of a full regulatory evaluation. This
rulemaking will not impose any new requirements or costs on
manufacturers. Instead, this rulemaking exempts RCC horizontal
discharge trailer manufacturers from the requirements of FMVSS No. 224.
Accordingly, the final rule will result in cost savings to
manufacturers of RCC horizontal discharge trailers, and road
construction companies purchasing these vehicles.
B. Regulatory Flexibility Act
NHTSA has considered the impacts of this rulemaking action under
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). I hereby certify
that the final rule will not have a significant economic impact on a
substantial number of small entities. This rulemaking does not impose
any new requirements or costs on manufacturers. Instead, the final rule
excludes manufacturers of RCC horizontal discharge trailers from the
requirements of FMVSS No. 224. The manufacturers of RCC horizontal
discharge trailers, among them Dan Hill, Red River, and E.D. Etnyre &
Co. will realize certain cost savings because the standard will no
longer require them to install underride guards on their RCC horizontal
discharge trailers. However, because of the relatively small number of
RCC horizontal discharge trailers produced yearly, any potential
positive economic impact will not be significant. Accordingly, this
amendment will not significantly affect small businesses, small
organizations, or small governmental units. For these reasons, the
agency has not prepared a final regulatory flexibility analysis.
C. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, a person is not required
to respond to a collection of information by a Federal agency unless
the collection displays a valid OMB control number. This final rule
does not contain any collection of information requirements subject
review under the Paperwork Reduction Act.
D. National Environmental Policy Act
NHTSA has analyzed this final rule under the National Environmental
Policy Act and determined that it would not have a significant impact
on the quality of human environment.
E. Executive Order 13132 (Federalism)
NHTSA has analyzed this final rule in accordance with the
principles and criteria contained in the Executive Order 13132, and has
determined that this rulemaking does not have sufficient Federal
implications to warrant consultation with State and local officials or
the preparation of a Federalism summary impact statement. This final
rule does not have any substantial impact on the States, or on the
current Federal-State relationship, or on the current distribution of
power and responsibilities among the various local officials. The final
rule is not intended to preempt state tort civil actions.
F. Civil Justice Reform
This final rule will not have any retroactive effect. Under 49
U.S.C. 21403, whenever a Federal motor vehicle safety standard is in
effect, a State may not adopt or maintain a safety standard applicable
to the same aspect of performance which is not identical to the Federal
standard, except to the extent that the state requirement imposes a
higher level of performance and applies only to vehicles procured for
the State's use. 49 U.S.C. 21461 sets forth a procedure for judicial
review of final rules establishing, amending or revoking Federal motor
vehicle safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
G. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272)
directs us to use voluntary consensus standards in regulatory
activities unless doing so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies, such as the Society of Automotive
Engineers (SAE). The NTTAA directs us to provide Congress, through OMB,
explanations when we decide not to use available and applicable
voluntary consensus standards.
The agency searched for, but did not find any voluntary consensus
standards relevant to this final rule.
H. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 requires agencies to
prepare a written assessment of the costs, benefits and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local or tribal governments, in the
aggregate, or by the private sector, of more than $100 million annually
($120,700,000 as adjusted for inflation with base year of 1995).
This final rule will not result in expenditures by State, local or
tribal governments, in the aggregate, or by the private sector in
excess of $120,700,000 annually.
I. Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified
[[Page 67668]]
Agenda in April and October of each year. You may use the RIN contained
in the heading at the beginning of this document to find this action in
the Unified Agenda.
J. Executive Order 13045
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under E.O. 12866, and (2) concerns an environmental, health, or
safety risk that NHTSA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, we must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by us.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in E.O. 12866 and does not
involve decisions based on environmental, health, or safety risks that
disproportionately affect children.
K. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.
L. Executive Order 12988 (Civil Justice Reform)
This final rule will not have any retroactive effect. Under 49
U.S.C. 30103, whenever a Federal motor vehicle safety standard is in
effect, a State may not adopt or maintain a safety standard applicable
to the same aspect of performance which is not identical to the Federal
standard, except to the extent that the state requirement imposes a
higher level of performance and applies only to vehicles procured for
the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial
review of final rules establishing, amending or revoking Federal motor
vehicle safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
List of Subjects in 49 CFR Part 571
Motor vehicle safety standards.
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
0
In consideration of the foregoing, NHTSA amends 49 CFR part 571.224 as
set forth below.
0
1. The authority citation for part 571 continues to read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
0
2. Section 571.224 is amended by revising S3 and by adding the
definition of ``Road construction controlled horizontal discharge
trailer'' in alphabetical order to S4 to read as follows:
Sec. 571.224 Standard No. 224; Rear Impact Protection.
* * * * *
S3. Application. This standard applies to trailers and semitrailers
with a GVWR of 4,356 kg or more. The standard does not apply to pole
trailers, pulpwood trailers, road construction controlled horizontal
discharge trailers, special purpose vehicles, wheels back vehicles, or
temporary living quarters as defined in 49 CFR 529.2. If a cargo tank
motor vehicle, as defined in 49 CFR 171.8, is certified to carry
hazardous materials and has a rear bumper or rear end protection device
conforming with 49 CFR part 178 located in the area of the horizontal
member of the rear underride guard required by this standard, the guard
need not comply with the energy absorption requirement (S5.2.2) of 49
CFR 571.223.
S4. Definitions.
* * * Road construction controlled horizontal discharge trailer
means a trailer or semitrailer that is equipped with a mechanical drive
and a conveyor to deliver asphalt and other road building materials, in
a controlled horizontal manner, into a lay down machine or paving
equipment for road construction and paving operations.
* * * * *
Issued: November 12, 2004.
Jeffrey W. Runge,
Administrator.
[FR Doc. 04-25703 Filed 11-18-04; 8:45 am]
BILLING CODE 4910-59-P