Federal Motor Vehicle Safety Standards; Rear Impact Guards and Rear Impact Protection, 9274-9277 [06-1670]
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Federal Register / Vol. 71, No. 36 / Thursday, February 23, 2006 / Rules and Regulations
pension plans, and other deferred
compensation plans.
National Highway Traffic Safety
Administration
This final rule is effective April
24, 2006. Voluntary compliance is
permitted before that time.
FOR FURTHER INFORMATION CONTACT: The
following persons at the National
Highway Traffic Safety Administration,
400 7th Street, SW., Washington, DC,
20590:
For technical and policy issues: Mr.
Maurice Hicks, Office of
Crashworthiness Standards, NVS–113,
telephone (202) 366–6345, facsimile
(202) 493–2739, e-mail:
maurice.hicks@nhtsa.dot.gov.
For legal issues: Mr. George Feygin,
Office of the Chief Counsel (202) 366–
2992, facsimile (202) 366–3820, e-mail:
george.feygin@nhtsa.dot.gov.
SUPPLEMENTARY INFORMATION:
49 CFR Part 57l
I. Background
[Docket No. NHTSA–2004–19523]
Federal Motor Vehicle Safety
Standard (FMVSS) No. 224, ‘‘Rear
impact protection,’’ requires that heavy 1
trailers and semitrailers be equipped
with underride guards in order to
reduce the risk to passenger vehicle
occupants in crashes in which a
passenger vehicle impacts the rear of a
heavy truck trailer or a semitrailer.
Compliance with these requirements is
not practicable for a small number of
vehicles featuring work performing
equipment mounted on the rear of a
trailer or semitrailer where an underride
guard would normally be located. If the
equipment needs to move through the
area that could be occupied by the
horizontal member of the guard, the
presence of a guard would impair or
eliminate the usefulness of the
equipment. These vehicles are
designated as ‘‘special purpose
vehicles’’ and are excluded from the
standard.
On June 24, 1998, Thieman Tailgates,
Inc., (Thieman) petitioned NHTSA to
amend FMVSS No. 224 in order to
exclude trailers with rear-mounted rail
type 2 and tuckunder 3 lift gates from the
requirements of the standard because,
according to the petitioner, they could
not accommodate underride guards for
reasons of impracticability. Thieman
242.7302
DATES:
Requirements.
Follow the procedures at PGI
242.7302 to determine if a CIPR is
needed.
242.7303
Responsibilities.
Follow the procedures at PGI
242.7303 when conducting a CIPR.
[FR Doc. 06–1632 Filed 2–22–06; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF TRANSPORTATION
RIN 2127–AJ80
Federal Motor Vehicle Safety
Standards; Rear Impact Guards and
Rear Impact Protection
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation.
ACTION: Final rule; response to petition
for reconsideration.
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AGENCY:
SUMMARY: To address the problem of
rear underride crashes, Federal safety
standards require heavy trailers and
semitrailers to be equipped with
underride guards. Compliance with
these requirements is not practicable for
vehicles featuring work-performing
equipment mounted in the area where
an underride guard would normally be
located. These trailers and semitrailers
are designated as ‘‘special purpose
vehicles’’ and are excluded from the
standard. On November 5, 2004, we
published a final rule amending the
definition of ‘‘special purpose vehicles’’
in order to clarify the exclusion by
specifying the dimensions of the area
where the work-performing equipment
must reside or pass through in order for
the exclusion to apply. On December 14,
2004, we were petitioned by the
National Truck Equipment Association
to reconsider the final rule because the
amendment has had an unintended
effect of narrowing the exclusion
applicable to ‘‘special purpose
vehicles.’’
In response to that petition for
reconsideration, this document further
amends the definition of a ‘‘special
purpose vehicle’’ to exclude a specific
group of vehicles that cannot comply
with the underride guard requirements
in a practicable manner.
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1 Trailers and semitrailers with a gross vehicle
weight rating (GVWR) of 4,536 kg or more.
2 Rail-type liftgate consists of a loading platform
that typically moves vertically along two
permanently mounted rails on the rear of the trailer.
With rail-type liftgates, the platform swings up and
stows along the rear of the trailer body while not
in use.
3 Tuckunder liftgate consists of a loading
platform, which operates from its stowed position
by swinging out to the rear of the trailer where it
may be hydraulically raised and lowered to load
heavy deliveries. Tuckunder liftgates are stowed
under the body of the trailer while not in use, thus
freeing the rear of the trailer for light deliveries and
dock operations with elevated bays.
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argued that the previous definition of
special purpose vehicles (as set forth
below) was not descriptive enough to
exclude all rail type and tuckunder lift
gates.
Special purpose vehicle means a trailer or
semitrailer having work-performing
equipment that, while the vehicle is in
transit, resides in or moves through the area
that could be occupied by the horizontal
member of the rear underride guard, as
defined by S5.1.1 through S5.1.3.4
We note that in a September 9, 1998
letter of interpretation responding to the
National Truck Equipment Association
(NTEA) question about the ‘‘area that
could be occupied by the horizontal
member of the rear underride guard,’’
we described the area as follows: (1) The
side boundaries are the side extremities
of the trailer; (2) the rearward boundary
is the transverse vertical plane tangent
to the rear extremity of the vehicle; (3)
the forward boundary is the transverse
vertical plane 305 mm (12 inches)
forward of the transverse vertical plane
tangent to the rear extremity of the
vehicle; (4) the vertical boundaries may
be as high as the bottom of the vehicle
body, and as low as the ground.
On February 27, 2004, NHTSA
published an NPRM proposing to
amend FMVSS No. 224.5 Specifically,
the NPRM proposed to define and
specifically exclude tuckunder lift gates
from the requirements of the standard.
The NPRM also proposed to amend the
definition of ‘‘special purpose vehicle’’
to include a precise description of the
space in which work-performing
equipment must reside in or move
through while a trailer is in transit. The
NPRM did not propose to exclude rail
type lift gates from the requirements of
FMVSS No. 224.
On November 5, 2004, NHTSA
published a final rule amending FMVSS
No. 224.6 First, with respect to rail type
liftgates, we reiterated that we never
intended to exclude rail-type lift gates
from the requirements of the standard.
Second, the agency agreed that the
requirements of the standard are
impracticable for vehicles equipped
with tuckunder lift gates. However,
instead of creating a specific exclusion
for tuckunder lift gates, the November
2004 final rule amended the definition
of ‘‘special purpose vehicles’’ with the
intent to exclude such vehicles. We
indicated our belief that expressly
excluding tuckunder lift gates would be
redundant in light of the revised
definition. We also stated that the
4 See http://www.nhtsa.dot.gov/cars/rules/
interps/files/17799-2.pja.html.
5 See 69 FR 9288.
6 See 69 FR 64495.
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Federal Register / Vol. 71, No. 36 / Thursday, February 23, 2006 / Rules and Regulations
amended definition would not subject
previously excluded vehicles to the
requirements of FMVSS No. 224.7
As set forth below, the new definition
contained a precise description of the
space in which work-performing
equipment must reside in or move
through while a trailer is moving.
Special purpose vehicle means a trailer or
semitrailer having work-performing
equipment that, while the vehicle is in
transit, resides in or moves through any
portion of the cubic area extending:
(1) Vertically from the ground to a
horizontal plane 660 mm above the ground;
(2) Laterally the full width of the trailer,
determined by the trailer’s side extremities as
defined in S4 of this section; and
(3) From the rear extremity of the trailer as
defined in S4 of this section to a transverse
vertical plane 305 mm forward of the rear
extremity of the trailer.
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The new description of the space in
which work-performing equipment
must reside differed from the one
described in the September 1998 letter
of interpretation to NTEA. Specifically,
the vertical boundary of the area became
more limited and extended only to a
horizontal plane 660 mm above the
ground, instead of all the way up to the
horizontal surface of the trailer. This is
because the agency believed it was
appropriate to require underride guards
on trailers that have only a small
portion of work-performing equipment
located just underneath the trailer bed.
That is, we concluded that some work
performing equipment located closer to
the trailer bed would be compatible
with underride guards. We explained
that the relationship of the work
performing equipment to the location in
which the rear impact guard would have
to be installed, and not the mere
presence of the equipment, should be
the criterion for determining the
exclusion.
On December 17, 2004, the NTEA
submitted a petition for reconsideration
of the November 2004 final rule.8 NTEA
stated that the amendment to the
definition of ‘‘special purpose vehicles’’
has had an unintended effect of
subjecting many previously excluded
trailers equipped with tuckunder lift
gates to the requirements of the
standard. NTEA argued that this change
was contrary to agency’s statements in
the preamble where we indicated that
vehicles equipped with tuckunder lift
gates would continue to qualify for a
special purpose vehicle exclusion.9
7 See
id. We also stated that vehicles equipped
with tuckunder lift gates would continue to qualify
for a ‘‘special purpose vehicle’’ exclusion. See id at
64497.
8 See NHTSA–2004–19523–3.
9 See 69 FR 64497.
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NTEA explained that some tuckunder
lift gates are stowed just underneath the
trailer bed. However, they require the
area normally occupied by an underride
guard in order to deploy the lift
platform. Thus, according to the
petitioner, the presence of an underride
guard would therefore interfere with the
operation of these tuckunder lift gates.
In sum, NTEA argued that because the
description of the space in which workperforming equipment must reside was
narrowed, the November 2004 final rule
had the effect of subjecting some
previously excluded tuckunder lift gates
to the requirements of FMVSS No. 224.
II. Response to the Petition for
Reconsideration
After carefully considering the issues
raised in the NTEA petition for
reconsideration, we conclude that the
definition of ‘‘special purpose vehicles’’
included in the November 2004 final
rule has had an unintended effect of
subjecting previously excluded trailers
equipped with tuckunder lift gates from
the requirements of the standard. This is
contrary to our intent because certain
tuckunder lift gates cannot comply with
the requirements of FMVSS No. 224 for
reasons of impracticability. Specifically,
some tuckunder lift gates reside just
underneath the trailer bed, but
nevertheless must move through the
space normally occupied by an
underride guard in order to deploy.
Accordingly, an underride guard
installed on vehicles equipped with
tuckunder lift gates would make these
lift gates useless.
In short, the agency did not anticipate
that our rulemaking would subject
previously excluded vehicles to the
requirements of FMVSS No. 224
because we were unaware that certain
work performing equipment stowed
close to the surface of the trailer
nevertheless requires greater space for
operation. Therefore on reconsideration,
we have decided to further amend the
definition of ‘‘special purpose vehicles.’’
Instead of enlarging the ‘‘exclusion
zone’’ for all vehicles, which could
make the ‘‘special purpose vehicle’’
exclusion broader than the agency
intended, the amendment will
specifically exclude vehicles equipped
with tuckunder lift gates; i.e., loading
platforms that are stowed between the
rear vehicle extremity and the rearmost
axle, and that deploy through the space
that would be normally occupied by an
underride guard. This approach
incorporates language that is similar to
that used in the notice of proposed
rulemaking to amend the definition of
‘‘special purpose vehicle’’ where the
agency proposed to define and exclude
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tuckunder lift gates.10 In the final rule,
the agency concluded that expressly
excluding tuckunder lift gates would be
redundant. However, we have
reconsidered this position after
considering the information presented
in NTEA’s petition.
The revised definition reads as
follows:
Special purpose vehicle means a
trailer or semitrailer that:
(a) Has work performing equipment that,
while the vehicle is in transit, resides in or
moves through any portion of the space
bounded:
(1) Vertically from the ground to a
horizontal plane 660 mm above the ground;
(2) Laterally the full width of the trailer,
determined by the trailer’s side extremities as
defined in S4 of this section; and
(3) From the rear extremity of the trailer as
defined in S4 of this section to a transverse
vertical plane 305 mm forward of the rear
extremity of the trailer; or
(b) Is equipped with a loading platform
that, while the vehicle is in transit, is
completely stowed in the space bounded by
a plane tangent to the underside of the
vehicle, the ground, the rear extremity of the
vehicle, and the rearmost axle, and that,
when operated, deploys from its stowed
position to the rear of the vehicle through
any portion of the space described above.
This amendment to the definition of
‘‘special purpose vehicles’’ becomes
effective 60 days after the publication of
this document. Voluntary compliance is
permitted before that time. We conclude
that because this amendment excludes
tuckunder lift gates, it will not subject
previously excluded trailers to the
requirements of FMVSS No. 224, and
therefore, will not result in any
additional costs to trailer or underride
guard manufacturers. Trailers capable of
complying with FMVSS No. 224 in a
practicable manner are likewise
unaffected this final rule.
III. Request Concerning Vehicles in Use
In regard to our November 5, 2004
final rule, we also received a request 11
from Brenntag asking that ‘‘the agency
allow all rail type lift gates now in
operation as of the date of [e]nactment
of the regulation to be exempt from this
new ruling. All rail type lift gates
installed after that date must comply
with the new regulation.’’ In response to
this request, we note that the November
5, 2004 final rule was applicable to
trailers and semitrailers manufactured
on or after November 5, 2004 and did
10 See 69 FR 9288 at 9296 (February 27, 2004);
Docket No. NHTSA–1998–4369.
11 We note that the request from Brenntag was
referred to as a petition. However, the agency
received the petition after the closing date for
petitions for rreconsideration. Given the response
we provide in this paragraph, however, the type of
document submitted by Brenning is inmaterial.
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Federal Register / Vol. 71, No. 36 / Thursday, February 23, 2006 / Rules and Regulations
not apply retroactively to rail type lift
gates already in operation.
IV. Rulemaking Analyses and Notices
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A. Executive Order 12866 and DOT
Regulatory Policies and Procedures
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ (58 FR 51735,
October 4, 1993), provides for making
determinations whether a regulatory
action is ‘‘significant’’ and therefore
subject to Office of Management and
Budget (OMB) review and to the
requirements of the Executive Order.
The Order defines a ‘‘significant
regulatory action’’ as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
We have considered the impact of this
rulemaking action under Executive
Order 12866 and the Department of
Transportation’s regulatory policies and
procedures. This rulemaking document
was not reviewed by the Office of
Management and Budget under E.O.
12866, ‘‘Regulatory Planning and
Review.’’ The rulemaking action is also
not considered to be significant under
the Department’s Regulatory Policies
and Procedures (44 FR 11034, February
26, 1979).
This rulemaking action will not have
an annual effect on the economy of $100
million or more, or adversely affect in
a material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities.
This document simply amends the
definition of a ‘‘special purpose
vehicle’’ to exclude a specific group of
vehicles that cannot comply with the
underride guard requirements in a
practicable manner.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act (5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory
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Enforcement Fairness Act (SBREFA) of
1996) whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effect of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required if the head of an
agency certifies the rule will not have a
significant economic impact on a
substantial number of small entities.
SBREFA amended the Regulatory
Flexibility Act to require Federal
agencies to provide a statement of the
factual basis for certifying that a rule
will not have a significant economic
impact on a substantial number of small
entities.
We have considered the effects of this
rulemaking action under the Regulatory
Flexibility Act. Many of the businesses
that manufacture trailers equipped with
work-performing equipment are
considered small businesses. However,
this document amends the definition of
a ‘‘special purpose vehicle’’ to exclude
a specific group of vehicles that cannot
comply with the underride guard
requirements in a practicable manner.
Therefore, I hereby certify that this final
rule does not have a significant
economic impact on a substantial
number of small entities.
C. National Environmental Policy Act
NHTSA has analyzed these
amendments for the purposes of the
National Environmental Policy Act and
determined that they will not have any
significant impact on the quality of the
human environment.
any new information collection
requirements.
F. Executive Order 12778 (Civil Justice
Reform)
This final rule does not have any
retroactive effect. Under section 49
U.S.C. 30103, whenever a Federal motor
vehicle safety standard is in effect, a
state may not adopt or maintain a safety
standard applicable to the same aspect
of performance which is not identical to
the Federal standard, except to the
extent that the state requirement
imposes a higher level of performance
and applies only to vehicles procured
for the State’s use. 49 U.S.C. 30161 sets
forth a procedure for judicial review of
final rules establishing, amending or
revoking Federal motor vehicle safety
standards. That section does not require
submission of a petition for
reconsideration or other administrative
proceedings before parties may file suit
in court.
G. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 requires agencies to prepare a
written assessment of the costs, benefits
and other effects of proposed or final
rules that include a Federal mandate
likely to result in the expenditure by
State, local or tribal governments, in the
aggregate, or by the private sector, of
more than $109 million annually
(adjusted for inflation with base year of
1995). Because this final rule does not
have a $100 million effect, no Unfunded
Mandates assessment has been
prepared.
D. Executive Order 13132 (Federalism)
The agency has analyzed this
rulemaking in accordance with the
principles and criteria contained in
Executive Order 13132 and has
determined that it does not have
sufficient federalism implications to
warrant consultation with State and
local officials or the preparation of a
federalism summary impact statement.
The final rule has no substantial effects
on the States, or on the current FederalState relationship, or on the current
distribution of power and
responsibilities among the various local
officials.
H. Executive Order 13045
Executive Order 13045 applies to any
rule that: (1) Is determined to be
‘‘economically significant’’ as defined
under E.O. 12866, and (2) concerns an
environmental, health or safety risk that
NHTSA has reason to believe may have
a disproportionate effect on children. If
the regulatory action meets both criteria,
we must evaluate the environmental
health or safety effects of the planned
rule on children, and explain why the
planned regulation is preferable to other
potentially effective and reasonably
feasible alternatives considered by us.
This final rule is not economically
significant and does not concern an
environmental health or safety risk that
disproportionately affects children.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, a person is not required to
respond to a collection of information
by a Federal agency unless the
collection displays a valid OMB control
number. This rule does not establish
I. Regulation Identifier Number (RIN)
The Department of Transportation
assigns a regulation identifier number
(RIN) to each regulatory action listed in
the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
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Federal Register / Vol. 71, No. 36 / Thursday, February 23, 2006 / Rules and Regulations
Agenda in April and October of each
year. You may use the RIN contained in
the heading at the beginning of this
document to find this action in the
Unified Agenda.
J. Privacy Act
Anyone is able to search the
electronic form of all submissions
received into any of our dockets by the
name of the individual submitting the
comment or petition (or signing the
comment or petition, if submitted on
behalf of an association, business, labor
union, etc.). You may review DOT’s
complete Privacy Act Statement in the
Federal Register published on April 11,
2000 (Volume 65, Number 70; Pages
19477–78) or you may visit http://
dms.dot.gov.
V. Regulatory Text
List of Subjects in 49 CFR Parts 571
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Motor vehicle safety, Reporting and
recordkeeping requirements, Tires.
I In consideration of the foregoing, 49
CFR part 571 is amended as follows:
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PART 571—FEDERAL MOTOR
VEHICLE SAFETY STANDARDS
1. The authority citation for part 571
of title 49 continues to read as follows:
I
Authority: 49 U.S.C. 322, 30111, 30115,
30117, and 30166; delegation of authority at
49 CFR 1.50.
2. Section 571.224 is amended by
revising the definition of ‘‘Special
purpose vehicle’’ in S4 as follows:
I
§ 571.224—Standard No. 224;
protection.
*
*
*
*
Rear impact
*
S4. Definitions
*
*
*
*
*
Special purpose vehicle means a
trailer or semitrailer that:
(1) Has work performing equipment
that, while the vehicle is in transit,
resides in or moves through any portion
of the space bounded:
(i) Vertically from the ground to a
horizontal plane 660 mm above the
ground;
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9277
(ii) Laterally the full width of the
trailer, determined by the trailer’s side
extremities as defined in S4 of this
section; and
(iii) From the rear extremity of the
trailer as defined in S4 of this section to
a transverse vertical plane 305 mm
forward of the rear extremity of the
trailer; or
(2) Is equipped with a loading
platform that, while the vehicle is in
transit, is completely stowed in the
space bounded by a plane tangent to the
underside of the vehicle, the ground, the
rear extremity of the vehicle, and the
rearmost axle, and that, when operated,
deploys from its stowed position to the
rear of the vehicle through any portion
of the space described above.
*
*
*
*
*
Issued on: February 16, 2006.
Jacqueline Glassman,
Deputy Administrator.
[FR Doc. 06–1670 Filed 2–22–06; 8:45 am]
BILLING CODE 4910–59–P
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]]>Agencies
[Federal Register Volume 71, Number 36 (Thursday, February 23, 2006)]
[Rules and Regulations]
[Pages 9274-9277]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1670]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 57l
[Docket No. NHTSA-2004-19523]
RIN 2127-AJ80
Federal Motor Vehicle Safety Standards; Rear Impact Guards and
Rear Impact Protection
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Final rule; response to petition for reconsideration.
-----------------------------------------------------------------------
SUMMARY: To address the problem of rear underride crashes, Federal
safety standards require heavy trailers and semitrailers to be equipped
with underride guards. Compliance with these requirements is not
practicable for vehicles featuring work-performing equipment mounted in
the area where an underride guard would normally be located. These
trailers and semitrailers are designated as ``special purpose
vehicles'' and are excluded from the standard. On November 5, 2004, we
published a final rule amending the definition of ``special purpose
vehicles'' in order to clarify the exclusion by specifying the
dimensions of the area where the work-performing equipment must reside
or pass through in order for the exclusion to apply. On December 14,
2004, we were petitioned by the National Truck Equipment Association to
reconsider the final rule because the amendment has had an unintended
effect of narrowing the exclusion applicable to ``special purpose
vehicles.''
In response to that petition for reconsideration, this document
further amends the definition of a ``special purpose vehicle'' to
exclude a specific group of vehicles that cannot comply with the
underride guard requirements in a practicable manner.
DATES: This final rule is effective April 24, 2006. Voluntary
compliance is permitted before that time.
FOR FURTHER INFORMATION CONTACT: The following persons at the National
Highway Traffic Safety Administration, 400 7th Street, SW., Washington,
DC, 20590:
For technical and policy issues: Mr. Maurice Hicks, Office of
Crashworthiness Standards, NVS-113, telephone (202) 366-6345, facsimile
(202) 493-2739, e-mail: maurice.hicks@nhtsa.dot.gov.
For legal issues: Mr. George Feygin, Office of the Chief Counsel
(202) 366-2992, facsimile (202) 366-3820, e-mail:
george.feygin@nhtsa.dot.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Federal Motor Vehicle Safety Standard (FMVSS) No. 224, ``Rear
impact protection,'' requires that heavy \1\ trailers and semitrailers
be equipped with underride guards in order to reduce the risk to
passenger vehicle occupants in crashes in which a passenger vehicle
impacts the rear of a heavy truck trailer or a semitrailer. Compliance
with these requirements is not practicable for a small number of
vehicles featuring work performing equipment mounted on the rear of a
trailer or semitrailer where an underride guard would normally be
located. If the equipment needs to move through the area that could be
occupied by the horizontal member of the guard, the presence of a guard
would impair or eliminate the usefulness of the equipment. These
vehicles are designated as ``special purpose vehicles'' and are
excluded from the standard.
---------------------------------------------------------------------------
\1\ Trailers and semitrailers with a gross vehicle weight rating
(GVWR) of 4,536 kg or more.
---------------------------------------------------------------------------
On June 24, 1998, Thieman Tailgates, Inc., (Thieman) petitioned
NHTSA to amend FMVSS No. 224 in order to exclude trailers with rear-
mounted rail type \2\ and tuckunder \3\ lift gates from the
requirements of the standard because, according to the petitioner, they
could not accommodate underride guards for reasons of impracticability.
Thieman argued that the previous definition of special purpose vehicles
(as set forth below) was not descriptive enough to exclude all rail
type and tuckunder lift gates.
---------------------------------------------------------------------------
\2\ Rail-type liftgate consists of a loading platform that
typically moves vertically along two permanently mounted rails on
the rear of the trailer. With rail-type liftgates, the platform
swings up and stows along the rear of the trailer body while not in
use.
\3\ Tuckunder liftgate consists of a loading platform, which
operates from its stowed position by swinging out to the rear of the
trailer where it may be hydraulically raised and lowered to load
heavy deliveries. Tuckunder liftgates are stowed under the body of
the trailer while not in use, thus freeing the rear of the trailer
for light deliveries and dock operations with elevated bays.
Special purpose vehicle means a trailer or semitrailer having
work-performing equipment that, while the vehicle is in transit,
resides in or moves through the area that could be occupied by the
horizontal member of the rear underride guard, as defined by S5.1.1
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through S5.1.3.\4\
\4\ See http://www.nhtsa.dot.gov/cars/rules/interps/files/17799-
2.pja.html.
We note that in a September 9, 1998 letter of interpretation
responding to the National Truck Equipment Association (NTEA) question
about the ``area that could be occupied by the horizontal member of the
rear underride guard,'' we described the area as follows: (1) The side
boundaries are the side extremities of the trailer; (2) the rearward
boundary is the transverse vertical plane tangent to the rear extremity
of the vehicle; (3) the forward boundary is the transverse vertical
plane 305 mm (12 inches) forward of the transverse vertical plane
tangent to the rear extremity of the vehicle; (4) the vertical
boundaries may be as high as the bottom of the vehicle body, and as low
as the ground.
On February 27, 2004, NHTSA published an NPRM proposing to amend
FMVSS No. 224.\5\ Specifically, the NPRM proposed to define and
specifically exclude tuckunder lift gates from the requirements of the
standard. The NPRM also proposed to amend the definition of ``special
purpose vehicle'' to include a precise description of the space in
which work-performing equipment must reside in or move through while a
trailer is in transit. The NPRM did not propose to exclude rail type
lift gates from the requirements of FMVSS No. 224.
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\5\ See 69 FR 9288.
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On November 5, 2004, NHTSA published a final rule amending FMVSS
No. 224.\6\ First, with respect to rail type liftgates, we reiterated
that we never intended to exclude rail-type lift gates from the
requirements of the standard. Second, the agency agreed that the
requirements of the standard are impracticable for vehicles equipped
with tuckunder lift gates. However, instead of creating a specific
exclusion for tuckunder lift gates, the November 2004 final rule
amended the definition of ``special purpose vehicles'' with the intent
to exclude such vehicles. We indicated our belief that expressly
excluding tuckunder lift gates would be redundant in light of the
revised definition. We also stated that the
[[Page 9275]]
amended definition would not subject previously excluded vehicles to
the requirements of FMVSS No. 224.\7\
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\6\ See 69 FR 64495.
\7\ See id. We also stated that vehicles equipped with tuckunder
lift gates would continue to qualify for a ``special purpose
vehicle'' exclusion. See id at 64497.
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As set forth below, the new definition contained a precise
description of the space in which work-performing equipment must reside
in or move through while a trailer is moving.
Special purpose vehicle means a trailer or semitrailer having
work-performing equipment that, while the vehicle is in transit,
resides in or moves through any portion of the cubic area extending:
(1) Vertically from the ground to a horizontal plane 660 mm
above the ground;
(2) Laterally the full width of the trailer, determined by the
trailer's side extremities as defined in S4 of this section; and
(3) From the rear extremity of the trailer as defined in S4 of
this section to a transverse vertical plane 305 mm forward of the
rear extremity of the trailer.
The new description of the space in which work-performing equipment
must reside differed from the one described in the September 1998
letter of interpretation to NTEA. Specifically, the vertical boundary
of the area became more limited and extended only to a horizontal plane
660 mm above the ground, instead of all the way up to the horizontal
surface of the trailer. This is because the agency believed it was
appropriate to require underride guards on trailers that have only a
small portion of work-performing equipment located just underneath the
trailer bed. That is, we concluded that some work performing equipment
located closer to the trailer bed would be compatible with underride
guards. We explained that the relationship of the work performing
equipment to the location in which the rear impact guard would have to
be installed, and not the mere presence of the equipment, should be the
criterion for determining the exclusion.
On December 17, 2004, the NTEA submitted a petition for
reconsideration of the November 2004 final rule.\8\ NTEA stated that
the amendment to the definition of ``special purpose vehicles'' has had
an unintended effect of subjecting many previously excluded trailers
equipped with tuckunder lift gates to the requirements of the standard.
NTEA argued that this change was contrary to agency's statements in the
preamble where we indicated that vehicles equipped with tuckunder lift
gates would continue to qualify for a special purpose vehicle
exclusion.\9\ NTEA explained that some tuckunder lift gates are stowed
just underneath the trailer bed. However, they require the area
normally occupied by an underride guard in order to deploy the lift
platform. Thus, according to the petitioner, the presence of an
underride guard would therefore interfere with the operation of these
tuckunder lift gates. In sum, NTEA argued that because the description
of the space in which work-performing equipment must reside was
narrowed, the November 2004 final rule had the effect of subjecting
some previously excluded tuckunder lift gates to the requirements of
FMVSS No. 224.
---------------------------------------------------------------------------
\8\ See NHTSA-2004-19523-3.
\9\ See 69 FR 64497.
---------------------------------------------------------------------------
II. Response to the Petition for Reconsideration
After carefully considering the issues raised in the NTEA petition
for reconsideration, we conclude that the definition of ``special
purpose vehicles'' included in the November 2004 final rule has had an
unintended effect of subjecting previously excluded trailers equipped
with tuckunder lift gates from the requirements of the standard. This
is contrary to our intent because certain tuckunder lift gates cannot
comply with the requirements of FMVSS No. 224 for reasons of
impracticability. Specifically, some tuckunder lift gates reside just
underneath the trailer bed, but nevertheless must move through the
space normally occupied by an underride guard in order to deploy.
Accordingly, an underride guard installed on vehicles equipped with
tuckunder lift gates would make these lift gates useless.
In short, the agency did not anticipate that our rulemaking would
subject previously excluded vehicles to the requirements of FMVSS No.
224 because we were unaware that certain work performing equipment
stowed close to the surface of the trailer nevertheless requires
greater space for operation. Therefore on reconsideration, we have
decided to further amend the definition of ``special purpose
vehicles.''
Instead of enlarging the ``exclusion zone'' for all vehicles, which
could make the ``special purpose vehicle'' exclusion broader than the
agency intended, the amendment will specifically exclude vehicles
equipped with tuckunder lift gates; i.e., loading platforms that are
stowed between the rear vehicle extremity and the rearmost axle, and
that deploy through the space that would be normally occupied by an
underride guard. This approach incorporates language that is similar to
that used in the notice of proposed rulemaking to amend the definition
of ``special purpose vehicle'' where the agency proposed to define and
exclude tuckunder lift gates.\10\ In the final rule, the agency
concluded that expressly excluding tuckunder lift gates would be
redundant. However, we have reconsidered this position after
considering the information presented in NTEA's petition.
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\10\ See 69 FR 9288 at 9296 (February 27, 2004); Docket No.
NHTSA-1998-4369.
---------------------------------------------------------------------------
The revised definition reads as follows:
Special purpose vehicle means a trailer or semitrailer that:
(a) Has work performing equipment that, while the vehicle is in
transit, resides in or moves through any portion of the space
bounded:
(1) Vertically from the ground to a horizontal plane 660 mm
above the ground;
(2) Laterally the full width of the trailer, determined by the
trailer's side extremities as defined in S4 of this section; and
(3) From the rear extremity of the trailer as defined in S4 of
this section to a transverse vertical plane 305 mm forward of the
rear extremity of the trailer; or
(b) Is equipped with a loading platform that, while the vehicle
is in transit, is completely stowed in the space bounded by a plane
tangent to the underside of the vehicle, the ground, the rear
extremity of the vehicle, and the rearmost axle, and that, when
operated, deploys from its stowed position to the rear of the
vehicle through any portion of the space described above.
This amendment to the definition of ``special purpose vehicles''
becomes effective 60 days after the publication of this document.
Voluntary compliance is permitted before that time. We conclude that
because this amendment excludes tuckunder lift gates, it will not
subject previously excluded trailers to the requirements of FMVSS No.
224, and therefore, will not result in any additional costs to trailer
or underride guard manufacturers. Trailers capable of complying with
FMVSS No. 224 in a practicable manner are likewise unaffected this
final rule.
III. Request Concerning Vehicles in Use
In regard to our November 5, 2004 final rule, we also received a
request \11\ from Brenntag asking that ``the agency allow all rail type
lift gates now in operation as of the date of [e]nactment of the
regulation to be exempt from this new ruling. All rail type lift gates
installed after that date must comply with the new regulation.'' In
response to this request, we note that the November 5, 2004 final rule
was applicable to trailers and semitrailers manufactured on or after
November 5, 2004 and did
[[Page 9276]]
not apply retroactively to rail type lift gates already in operation.
---------------------------------------------------------------------------
\11\ We note that the request from Brenntag was referred to as a
petition. However, the agency received the petition after the
closing date for petitions for rreconsideration. Given the response
we provide in this paragraph, however, the type of document
submitted by Brenning is inmaterial.
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IV. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993), provides for making determinations whether a
regulatory action is ``significant'' and therefore subject to Office of
Management and Budget (OMB) review and to the requirements of the
Executive Order. The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
We have considered the impact of this rulemaking action under
Executive Order 12866 and the Department of Transportation's regulatory
policies and procedures. This rulemaking document was not reviewed by
the Office of Management and Budget under E.O. 12866, ``Regulatory
Planning and Review.'' The rulemaking action is also not considered to
be significant under the Department's Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979).
This rulemaking action will not have an annual effect on the
economy of $100 million or more, or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities.
This document simply amends the definition of a ``special purpose
vehicle'' to exclude a specific group of vehicles that cannot comply
with the underride guard requirements in a practicable manner.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996) whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
No regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
We have considered the effects of this rulemaking action under the
Regulatory Flexibility Act. Many of the businesses that manufacture
trailers equipped with work-performing equipment are considered small
businesses. However, this document amends the definition of a ``special
purpose vehicle'' to exclude a specific group of vehicles that cannot
comply with the underride guard requirements in a practicable manner.
Therefore, I hereby certify that this final rule does not have a
significant economic impact on a substantial number of small entities.
C. National Environmental Policy Act
NHTSA has analyzed these amendments for the purposes of the
National Environmental Policy Act and determined that they will not
have any significant impact on the quality of the human environment.
D. Executive Order 13132 (Federalism)
The agency has analyzed this rulemaking in accordance with the
principles and criteria contained in Executive Order 13132 and has
determined that it does not have sufficient federalism implications to
warrant consultation with State and local officials or the preparation
of a federalism summary impact statement. The final rule has no
substantial effects on the States, or on the current Federal-State
relationship, or on the current distribution of power and
responsibilities among the various local officials.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, a person is not required
to respond to a collection of information by a Federal agency unless
the collection displays a valid OMB control number. This rule does not
establish any new information collection requirements.
F. Executive Order 12778 (Civil Justice Reform)
This final rule does not have any retroactive effect. Under section
49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in
effect, a state may not adopt or maintain a safety standard applicable
to the same aspect of performance which is not identical to the Federal
standard, except to the extent that the state requirement imposes a
higher level of performance and applies only to vehicles procured for
the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial
review of final rules establishing, amending or revoking Federal motor
vehicle safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
G. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 requires agencies to
prepare a written assessment of the costs, benefits and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local or tribal governments, in the
aggregate, or by the private sector, of more than $109 million annually
(adjusted for inflation with base year of 1995). Because this final
rule does not have a $100 million effect, no Unfunded Mandates
assessment has been prepared.
H. Executive Order 13045
Executive Order 13045 applies to any rule that: (1) Is determined
to be ``economically significant'' as defined under E.O. 12866, and (2)
concerns an environmental, health or safety risk that NHTSA has reason
to believe may have a disproportionate effect on children. If the
regulatory action meets both criteria, we must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by us.
This final rule is not economically significant and does not
concern an environmental health or safety risk that disproportionately
affects children.
I. Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified
[[Page 9277]]
Agenda in April and October of each year. You may use the RIN contained
in the heading at the beginning of this document to find this action in
the Unified Agenda.
J. Privacy Act
Anyone is able to search the electronic form of all submissions
received into any of our dockets by the name of the individual
submitting the comment or petition (or signing the comment or petition,
if submitted on behalf of an association, business, labor union, etc.).
You may review DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (Volume 65, Number 70; Pages
19477-78) or you may visit http://dms.dot.gov.
V. Regulatory Text
List of Subjects in 49 CFR Parts 571
Motor vehicle safety, Reporting and recordkeeping requirements,
Tires.
0
In consideration of the foregoing, 49 CFR part 571 is amended as
follows:
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
0
1. The authority citation for part 571 of title 49 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
0
2. Section 571.224 is amended by revising the definition of ``Special
purpose vehicle'' in S4 as follows:
Sec. 571.224--Standard No. 224; Rear impact protection.
* * * * *
S4. Definitions
* * * * *
Special purpose vehicle means a trailer or semitrailer that:
(1) Has work performing equipment that, while the vehicle is in
transit, resides in or moves through any portion of the space bounded:
(i) Vertically from the ground to a horizontal plane 660 mm above
the ground;
(ii) Laterally the full width of the trailer, determined by the
trailer's side extremities as defined in S4 of this section; and
(iii) From the rear extremity of the trailer as defined in S4 of
this section to a transverse vertical plane 305 mm forward of the rear
extremity of the trailer; or
(2) Is equipped with a loading platform that, while the vehicle is
in transit, is completely stowed in the space bounded by a plane
tangent to the underside of the vehicle, the ground, the rear extremity
of the vehicle, and the rearmost axle, and that, when operated, deploys
from its stowed position to the rear of the vehicle through any portion
of the space described above.
* * * * *
Issued on: February 16, 2006.
Jacqueline Glassman,
Deputy Administrator.
[FR Doc. 06-1670 Filed 2-22-06; 8:45 am]
BILLING CODE 4910-59-P
