E7-11112. Parts and Accessories Necessary for Safe Operation; Lamps and Reflective Devices

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule.

SUMMARY:

FMCSA amends its regulations concerning parts and accessories necessary for safe operation in response to a petition for reconsideration filed by the Truck Manufacturers Association. As requested by a petitioner, this amendment resolves an inconsistency between FMCSA's Federal Motor Carrier Safety Regulations and the National Highway Traffic Safety Administration's Federal Motor Vehicle Safety Standards.

DATES:

This rule is effective July 11, 2007.

FOR FURTHER INFORMATION CONTACT:

Mr. Jeffrey J. Van Ness, phone [phone], Vehicle and Roadside Operations Division, Office of Bus and Truck Standards and Operations, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Legal Basis for the Rulemaking

The legal basis for the August 15, 2005, final rule entitled “Parts and Accessories Necessary for Safe Operation; General Amendments,” was set forth in detail there [70 FR 48008-48009]. That legal basis statement also applies here and will not be reprinted.

One purpose of the 2005 rule, as described in the legal basis section, was to “resolve inconsistencies between [49 CFR] part 393 and the National Highway Traffic Safety Administration's Federal Motor Vehicle Safety Standards (49 CFR part 571) * * *” [70 FR 48008]. This rule responds to a petition for reconsideration of the 2005 rule. Petitioner has brought to the Federal Motor Carrier Safety Administration's (FMCSA) attention another inconsistency, this one between a provision on auxiliary lamps adopted in the 2005 rule [49 CFR 383.11(d)] and a National Highway Traffic Safety Administration (NHTSA) interpretation of its standard for “Lamps, reflective devices, and associated equipment” [49 CFR 571.108, S5.1.3], which was issued almost simultaneously. In resolving the new inconsistency, this rule simply completes the process begun in 2005.

Background

On August 15, 2005, FMCSA published a final rule that amended 49 CFR part 393, Parts and Accessories Necessary for Safe Operation (70 FR 48008). The amendments removed obsolete and redundant regulations; responded to several petitions for rulemaking; provided improved definitions of vehicle types, systems, and components; resolved inconsistencies between 49 CFR part 393 and NHTSA's Federal Motor Vehicle Safety Standards (FMVSSs) (49 CFR part 571); and codified certain FMCSA regulatory guidance concerning the requirements of 49 CFR part 393. Generally, the amendments did not establish new or more stringent requirements, but merely clarified existing requirements. The final rule was intended to make many sections more concise, easier to understand, and more performance-oriented.

The final rule was based on a notice of proposed rulemaking (NPRM) published by the Federal Highway Administration (FHWA) on April 14, 1997 (62 FR 18170). FHWA had received numerous petitions for rulemaking and requests for interpretation of the requirements of 49 CFR part 393, which suggested the need for amendments to clarify several provisions of the safety regulations. In addition, NHTSA, the Federal agency responsible for establishing safety standards for the manufacture of motor vehicles and certain motor vehicle equipment, had made several amendments to its FMVSSs that necessitated amendments to the Federal Motor Carrier Safety Regulations (FMCSRs) in order to eliminate inconsistencies between 49 CFR parts 393 and 571.

Petition for Reconsideration of § 393.11

Summary

On September 6, 2005, the Truck Manufacturers Association (TMA) submitted a petition for reconsideration of FMCSA's August 15, 2005, final rule. The TMA is an association of medium and heavy-duty truck manufacturers located in Washington, DC. Member companies include Ford Motor Company; Freightliner LLC; General Motors Corporation; International Truck and Engine Corporation; Isuzu Motors America, Inc.; Mack Trucks, Inc.; PACCAR, Inc.; and Volvo Trucks North America, Inc. The TMA identified what it believes is “an unintended inconsistency” between one of the requirements of FMCSA's August 15, 2005, final rule and a recent interpretation it had received from NHTSA. Specifically, the final rule amended § 393.11(d), “Prohibition on the use of auxiliary lamps that supplement the identification lamps,” to state:

No commercial motor vehicle may be equipped with lamps that are in a horizontal line with the required identification lamps unless those lamps are required by this regulation.

However, TMA notes that the language above contradicts guidance on the same issue provided by NHTSA in a letter of interpretation, dated July 28, 2005. Where the above language prohibits all auxiliary lamps that are in a horizontal line with the required identification lamps, the NHTSA regulation [S5.1.3 of FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment] only “prohibits installation of lamps that would impair the effectiveness of the required lighting.”

The NHTSA's interpretation letter clarifies that additional lamps may be installed on commercial motor vehicles provided that the auxiliary lamps are positioned at a distance that is at least twice the distance that separates each lamp in the required three-lamp cluster.

Representatives from FMCSA met with NHTSA to discuss the rationale used in developing the position set forth in the interpretation letter and how it relates to the TMA petition. The FMCSA agreed that NHTSA's spacing guidelines for auxiliary lamps, outlined in the July 2005 interpretation letter, ensure that the effectiveness of the three-lamp cluster is not impaired by auxiliary lighting devices. Therefore, FMCSA granted TMA's petition. Today's final rule amends the August 2005 final rule by deleting § 393.11(d).

Background

For vehicles of 80 or more inches in overall width, Table II of FMVSS No. 108 requires that three amber identification lamps (three-lamp cluster) be located as close as practicable to the top center of the vehicle or the cab with lamps placed 6 to 12 inches apart. The function of this three-lamp cluster is to indicate the presence of a large vehicle on the roadway. Table II of FMVSS No. 108 also requires that two amber clearance lamps be installed “to indicate the overall width of the vehicle * * * and as near the top thereof as practicable.” In addition, S5.1.3 of FMVSS No. 108 prohibits the installation of lamps that would impair the effectiveness of the required lighting, including the identification lamp cluster.

The NHTSA has long maintained that highway traffic safety is enhanced by the familiarity of drivers with established lighting schemes, which facilitates their ability to instantly recognize the meaning the lamps convey and to respond accordingly. The NHTSA previously explained in opinion letters that auxiliary lamps must be located so that they would not interfere or be confused with the lamps required by FMVSS No. 108. FMCSA concluded that § 393.11(d) was appropriate and consistent with NHTSA's previous enforcement guidance.

However, several weeks before the 49 CFR part 393 final rule was published on August 15, 2005, TMA had written to NHTSA requesting an interpretation regarding the installation of certain auxiliary lighting on heavy-duty trucks and truck tractors. In part, TMA asked about installing auxiliary lamps in the vicinity of the front identification and clearance lamps—the issue specifically addressed in § 393.11(d). The NHTSA responded to TMA on July 28, 2005—less than two weeks before FMCSA's final rule was issued—and provided the following information:

* * * [A]uxiliary lamps located immediately adjacent to the three-lamp cluster would not be permitted by FMVSS No. 108 because they would impair the effectiveness of identification lamps. The purpose of the three-lamp cluster requirement is to signal the presence of a large vehicle to other drivers. The number of lamps, three, is a part of the signal, and additional lamps could make the signal less recognizable.

However, NHTSA recognized “the need for guidance with respect to the permissible positioning of auxiliary lamps located between the clearance lamps and the three-lamp cluster.” And NHTSA concluded that “positioning auxiliary lamps at a distance that is at least twice the distance that separates each lamp in the required three-lamp cluster provides sufficient separation not to impair the effectiveness of the three-lamp cluster.”

Clearly, the guidance provided in NHTSA's July 2005 interpretation letter contradicts the regulatory language in § 393.11(d), which prohibits any lamps that are in a horizontal line with the required identification lamps unless those lamps are required by regulation. The TMA notified FMCSA of this discrepancy via telephone on August 15, 2005—the day the amendments to 49 CFR part 393 were published—and faxed a copy of the NHTSA interpretation letter to FMCSA. The TMA submitted its petition for reconsideration of the 49 CFR part 393 amendments on September 6, 2005.

It is important to note that neither FMCSA nor NHTSA ever expressly prohibited the installation of auxiliary lamps. In instances where manufacturers have chosen to install lamps in addition to those which are required by regulation [S5.1.3 of FMVSS No. 108], NHTSA interpretations have required only that the auxiliary lamps not impair the effectiveness of the required lighting. In general, both FMCSA and NHTSA believe that additional lamps will improve the conspicuity of trucks and trailers and, thus, increase highway safety, provided that the additional lamps do not interfere with and are not confused with the lamps required by FMVSS No. 108.

However, the July 2005 interpretation letter to TMA represents the first time objective, measurable limits regarding the location and spacing of auxiliary lamps have been specified. The NHTSA determined that this was necessary to provide detailed guidance to TMA and others regarding the permissible positioning of auxiliary lamps located between the clearance lamps and the three-lamp cluster.

The FMCSA believes that increased safety can be realized through improved conspicuity of vehicles. It is FMCSA's position that the installation of auxiliary lamps will not detract from the effectiveness of the required lighting provided that the spacing between the three-lamp cluster and any auxiliary lamps is maintained as outlined in the NHTSA interpretation letter to TMA.

Conclusion

FMCSA finds that positioning auxiliary lamps at a distance that is at least twice the distance that separates each lamp in the required three-lamp cluster provides sufficient separation to prevent the auxiliary lighting devices from decreasing the effectiveness of the three-lamp cluster.

Further, FMCSA believes that it is important to maintain consistency, to the maximum extent practicable, between FMCSA and NHTSA regulations. Trucks and trailers that are configured with auxiliary lamps meeting the conditions outlined in NHTSA's July 2005 interpretation letter are considered by FMCSA as fully compliant with the Federal safety regulations. FMCSA does not believe that it is appropriate to retain the current language in § 393.11 which prohibits the installation of auxiliary lamps that are permitted by the NHTSA interpretation.

Consistent with the above, FMCSA is rescinding § 393.11(d) in this final rule.

Regulatory Analyses and Notices

Good Cause Exception to Notice and Comment

FMCSA has determined that prior notice and opportunity for comment on this final rule are unnecessary. One of the stated purposes of the August 15, 2005, rule (Summary, 70 FR 48008) was to “resolve inconsistencies between part 393 and the National Highway Traffic Safety Administration's Federal Motor Vehicle Safety Standards (49 CFR part 571).” That point was driven home throughout the rule by repeated comparison of the two agencies' regulations and the adoption of amendments to make 49 CFR part 393 consistent with 49 CFR part 571. The section dealing with § 393.11 (70 FR 48012-48013) was little more than a discussion of NHTSA actions that required changes to the FMCSA lighting rules.

As it happened, the August 15, 2005, rule created an inconsistency with NHTSA's recently-issued interpretation of FMVSS No. 108. This final rule simply corrects one more anomaly. It imposes no additional costs or requirements on motor carriers and does not adversely affect safety. Therefore, FMCSA finds good cause pursuant to 5 U.S.C. 553(b) to adopt the rule without notice and comment.

Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures

FMCSA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or Department of Transportation regulatory policies and procedures. This document is not required to be reviewed by the Office of Management and Budget. Because this rulemaking merely makes a minor change that will not result in additional costs, a regulatory evaluation has not been prepared by the Agency.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), FMCSA has considered the effects of this regulatory action on small entities and determined that this rule will not have a significant impact on a substantial number of small entities. Because this rulemaking merely makes a minor change that will not result in additional costs, a regulatory flexibility analysis has not been prepared by the Agency.

Unfunded Mandates Reform Act of 1995

This rulemaking will not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), that will result in the expenditure by State, local, and tribal governments in the aggregate or by the private sector of $120.7 million or more in any one year.

Executive Order 12988 (Civil Justice Reform)

This action will meet applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

FMCSA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

This rulemaking will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Civil Constitutionally Protected Property Rights.

Executive Order 13132 (Federalism)

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. It has been determined that this rulemaking will not have a substantial direct effect on States nor will it limit the policy-making discretion of the States. Nothing in this document will preempt any State law or regulation.

Executive Order 12372 (Intergovernmental Review)

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

Paperwork Reduction Act

This final rule 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

FMCSA analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004) that this action is categorically excluded (CE) under Appendix 2, paragraph 6.b. from further environmental documentation. This CE relates to establishing regulations and actions taken pursuant to these regulations that are editorial in nature. In addition, FMCSA believes that the action includes no extraordinary circumstances that would have any effect on the quality of the environment. Thus, the action does not require an environmental assessment or an environmental impact statement.

FMCSA also analyzed this final rule under the Clean Air Act (CAA), as amended section 176(c), (42 U.S.C. 7401 et seq.) and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it involves rulemaking activity which would not result in any emissions increase nor would it have any potential to result in emissions that are above the general conformity rule's de minimis emission threshold levels (40 CFR 93.153(c)(2)). Moreover, it is reasonably foreseeable that the rule would not increase total CMV mileage, change the routing of CMVs, change how CMVs operate, or change the CMV fleet-mix of motor carriers. This action merely rescinds a regulatory provision that conflicts with an NHTSA interpretation.

Executive Order 13211 (Energy Effects)

FMCSA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that this action will not be a significant energy action under that order because it will not be economically significant and will not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

List of Subjects for 49 CFR Part 393

• Highways and roads, incorporation by reference, motor carriers, motor vehicle equipment, motor vehicle safety

In consideration of the foregoing, FMCSA amends 49 CFR part 393 as follows:

PART 393—PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION

1. The authority citation for part 393 continues to read as follows:

Authority: 49 U.S.C. 322, 31136, and 31502; section 1041(b) of Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); and 49 CFR 1.73.

§ 393.11

[Amended]

2. Amend § 393.11 by removing paragraph (d) and by revising the heading of Table 1 to read “Table 1 of § 393.11—Required Lamps and Deflectors on Commercial Motor Vehicles”.

Issued on: May 30, 2007.

John H. Hill,

Administrator.