Parts and Accessories Necessary for Safe Operation; Lighting Devices, Reflectors, and Electrical Equipment

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).1

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.2

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

\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