03-15998. Designation of Dromedary Equipped Truck Tractor-Semitrailers as Specialized Equipment

AGENCY:

Federal Highway Administration (FHWA), DOT.

ACTION:

Final rule.

SUMMARY:

The FHWA amends its regulation on truck size and weight to include within the definition of “specialized equipment” dromedary equipped truck tractor-semitrailer combination vehicles, when transporting Class 1 explosives and/or any munitions related security material as specified by the U.S. Department of Defense (DoD) in compliance with the U.S. DOT's Hazardous Material Regulations. This change is necessary because shipping these non-compatible explosives in the same vehicle combination, where one part of the cargo may be separately carried in the dromedary unit, reduces the number of vehicles needed to transport munitions, increases military readiness, and reduces the number of vehicles on the road. This inclusion will allow the DOD, specifically the Department of the Army (DA) to expedite the movement of munitions for the military, especially in times of national emergency.

EFFECTIVE DATE:

July 28, 2003.

FOR FURTHER INFORMATION CONTACT:

Mr. Phil Forjan, Office of Freight Management and Operations [phone], or Mr. Raymond W. Cuprill, Office of the Chief Counsel [phone], Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 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

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Background

On June 22, 2001, the FHWA received a petition from the U.S. Department of the Army (DA) to amend 23 CFR 658.13 to include as “specialized equipment” dromedary-equipped truck tractor-semitrailer combination vehicles, when transporting Class 1 explosives ^[1] for the DOD in compliance with the U.S. DOT's hazardous material regulations found at 49 CFR 177.835. A copy of the petition was included in FHWA Docket No. FHWA-2002-11819. The motivation for the petition and a summary of events leading up to its submission, was provided in a notice of proposed rulemaking (NPRM) published on October 23, 2002 (67 FR 65056).

In response to the Army's request, we proposed to amend our regulation on truck size and weight to address the issue of dromedary equipped truck tractors for munitions carriage by providing a specialized equipment designation for the combination vehicle in question. Specificially, we proposed that a truck tractor equipped with a dromedary unit operating in combination with a semitrailer was proposed to be designated “specialized equipment,” when transporting Class 1 explosives, and/or any munitions related security material, as specified by the DOD in compliance with 49 CFR 177.835. This designation would require States to allow operation of this combination on the National Network (NN), and provide reasonable access between the NN and service facilities and terminals. In order to accommodate the typical equipment in use today for this type of operation, the proposal included a requirement that all States allow these combinations up to an overall length of 75 feet.

This designation would apply only to dromedary-equipped truck tractor-semitrailer combination vehicles directly used in carrying munitions for the DOD. When operating empty, while returning from a delivery, the designation would continue to apply if the carrier can document that hauling munitions is the company's business, or that the most recent load consisted of a qualifying munitions or sensitive load. The designation would not apply if any other cargo were being carried in either the semitrailer or dromedary unit. For those instances, the combination would no longer be considered “specialized equipment,” and would become subject to State regulations for drom equipped truck truck-semitrailers.

Analyses of Comments

We received eight sets of comments to the docket. Of the eight commenters, we received four from motor carriers, (Tri State Motor Transit Company (TSMT), Landstar System, Carrier Group), Extreme Transportation Inc., and Baggett Transportation Company; two from States, (Connecticut and Missouri); Military Traffic Management Command (MTMC), and the American Trucking Association (ATA). For the most part, all comments were in favor of the proposed change.

The State of Connecticut stated in its response to the proposal that “dromedary equipped truck tractor-semitrailers having an overall length not to exceed 75 feet may legally operate in the State of Connecticut and adding them as “specialized equipment” under 23 CFR 658 would not be in conflict with existing State laws.”

The TSMT suggested that the most efficient way to transport non-compatible explosives to the end user (troops in the field) is through the use of dromedary equipment. It stated that the use of the dromedary equipment requires only one vehicle to transport the non-compatible explosives. Therefore, using a vehicle equipped with a dromedary box reduces the number of vehicles (tractor/trailers) on the nation's highways. The TSMT also indicated that it is a proponent of security, safety, and compliance and views this revision as a way to enhance its operation in these areas.

Landstar System Carrier Group, one of the Nation's largest truckload carriers and one of the principal motor carriers involved with the Department of Defense movements agreed with the proposed changes. Landstar cited delays in the accqusition of permits and inspections of its vehicles at the roadside, while moving critical arms, ammunition and explosives in support of our Nation's fighting forces. It indicated that including, as “specialized equipment,” dromedary-equipped truck-tractor-semitrailer combination vehicles when transporting Class 1 explosives for the DOD is, in its opinion, the proper decision.

Extreme Transportation Inc. and Baggett Transportation Company both fully support designating dromedary equipped truck tractors for munitions carriage by DOD carriers as “specialized equipment.” Furthermore, both carriers support the notion that the 75 feet length restriction should apply to all dromedary equipped vehicles. The U.S. Department of the Army's (DA) June 22, 2001, petition to the FHWA was very specific. The DA asked to include as “specialized equipment” dromedary-equipped truck tractor-semitrailer combination vehicles, when transporting Class 1 explosives for the DOD. The designation of all dromedary-equipped truck tractor-semitrailers as “specialized equipment” was not included in the DA petition and is outside the scope of this rulemaking.

The ATA commended the FHWA for its comprehensive discourse and framing of the dromedary subject. Furthermore, the ATA indicated that it strongly supports the proposed change, as set forth in the NPRM. However, the ATA did suggest one modification which reads as follows: “The designation would not apply if any other cargo were being carried in either the semitrailer or dromedary unit.” The ATA explained that the DOD ships many items which DOD (or other Federal agencies) deems to be sensitive, but which are not strictly an Arms, Ammunition and Explosives (AA&E) item or, as stated in the language of the NPRM, “* * * and/or any munitions related security material, as specified by DOD in compliance with 49 CFR 177.835.” Therefore, the ATA requested that the final rule also specify as excludable “freight deemed sensitive by the United States Government.” This would be in keeping with long-standing practices used by both carriers and their DOD customers, and would clarify the definition of permissible cargo shipped via subject vehicles.

The ATA argued that, without this expanded designation, if a dromedary-equipped truck were to include an item containing sensitive technology (such as a computer) on that same vehicle, and the item were not specifically associated with AA&E cargo, the new vehicle designation of “specialized equipment” would not apply, and the benefits noted above would be forfeited. The ATA expressed concern that this situation did not make sense because the computer with sensitive technology and the AA&E item both require DOD-specified protective services, and it would be necessary to order an additional motor carrier service to ship the security sensitive computer. Specifying, “freight deemed sensitive by the United States Government” would protect these shipments from localized arbitrary enforcement activities.

The ATA may be correct in assuming that the expanded designation of the allowable cargo, “freight deemed sensitive by the United States Government” may help accomplish DOD's overarching transportation capacity goals. However, the DOD's petition was quite specific and narrow in scope in requesting that dromedary equipped truck tractor-semitrailer combination vehicles, when transporting Class 1 explosives and/or any munitions related security material as specified by the U.S. Department of Defense be defined as “specialized equipment.” Unfortunately, the issue of “freight deemed sensitive by the United States Government” was not addressed in the NPRM and we believe it to be outside the scope of this rulemaking. In addition, the term, “freight deemed sensitive by the United States Government” is too broad in scope, would be too difficult to define, and would impose complicated requirements. For these reasons, we have decided not to expand the definition of allowable cargo to include “freight deemed sensitive by the U.S. government.” We believe that the language proposed in the NPRM is sufficient to aid the DOD in the shipment of munitions cargo.

The MTMC submitted to the docket all the historical information relating to this subject matter, as explained briefly in the Background section. The FHWA believes that by including dromedary-equipped truck tractor-semitrailer combination vehicles carrying military munitions, as “specialized equipment” it will help the DOD, specifically the Department of the Army (DA), expedite the movement of munitions for the military, especially in times of national emergency.

Conclusion

All eight commenters are in favor of amending the FHWA regulation on truck size and weight to include within the definition of “specialized equipment” dromedary equipped truck tractor-semitrailer combination vehicles, when transporting Class 1 explosives and/or any munitions related security material as specified by the U.S. Department of Defense (DOD) in compliance with 49 CFR 177.835. There were several requests to allow all dromedary equipped truck tractor-semitrailer combinations up to an overall length of 75 feet to transport general freight. Several commenters requested that the FHWA limit the length of the semitrailer to 53 feet and remove the overall length requirement of 75 feet. We believe these recommendations to be outside the scope of this rulemaking. Therefore, with the exception of one additional phrase, this final rule will contain the same regulatory language provided in a notice of proposed rulemaking (NPRM) published on October 23, 2002 (67 FR 65056). The phrase “in compliance with 49 CFR 177.835” will appear following “as specified by the U.S. Department of Defense” in part 658.5 Definitions and part 658.13 Length in this final rule. This additional statement makes clear that anything related to the munitions that are required to be segregated from those munitions in compliance with 49 CFR 177.835 will receive the benefit of the “specialized equipment” designation.

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

We have determined that this final rule is a significant regulatory action within the meaning of Executive Order 12866 and the U.S. DOT regulatory policies and procedures. This action comes in response to a request from, and will directly affect activities under the direct control, of the U.S. Department of Defense: supplying munitions to the military. This final rule will improve the shipment of munitions by standardizing the regulatory control that States apply to the vehicles typically used for this activity. The anticipated result will be an improvement in the efficiency with which munitions are shipped. This potential improvement will aid the national security effort with respect to the armed forces, as well as activities associated with homeland security.

This final rule provides, at the Federal level, a regulatory standard that already exists in many States. Although it potentially preempts restrictions imposed by 23 States, it would not affect any State's ability to discharge a traditional State government function, i.e., issuing citations to illegally overlength vehicles.

The vehicles covered by this final rule are already operating in most States, and will not have to be modified in any way to achieve compliance. Accordingly, the anticipated annual economic effect of this rulemaking will be negligible. This action will not have an adverse effect on any other governmental agency, any level of government, the industry, or the public, nor will it change any compliance or reporting requirements that already exist.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA has evaluated the effects of this final rule on small entities and has determined that the action will not have a significant economic impact on a substantial number of small entities.

Executive Order 13132 (Federalism)

This action has been analyzed in accordance with the principles and criteria contained in Executive order 13132, dated August 4, 1999, and the FHWA has determined that this action has sufficient federalism implications to warrant the preparation of a Federalism summary impact statement.

This final rule will provide a consistent national regulation applying only to vehicles hauling munitions for the Department of Defense in support of military activities. This final rule is based on the authority provided by 49 U.S.C. 31111(g) that allows the Secretary to make the decisions necessary to accommodate specialized equipment. The FHWA has also determined that, while this action will preempt any inconsistent State law or State regulation, it will not affect the State's ability to discharge traditional State government functions. The States would continue to be able to enforce length restrictions against these vehicles. What might change, however, depending on existing State law, would be the threshold at which an enforcement action is taken.

By allowing the vehicle described in this final rule to transport munitions, the total number of trucks needed to perform this task would be reduced. This reduction, in turn, improves the safety climate on the highway system and in a small way slows infrastructure wear. Less than half of the States (23) will be affected by this rule, and of those 23 States only 3 States fluctuate enforcing for overlength for the combination vehicle covered by this rulemaking. The additional 28 States allow this combination to operate in its State.

However, due to the needs of the military and the nature of the cargo, it is imperative that all States allow the combination vehicle under discussion to operate. Even if only one or two States can prohibit, or deter this vehicle and its cargo, timely support of the military can be severely impacted.

Consultation with States over this issue has occurred in past years. In February 1991, as a result of the activities surrounding the Desert Shield/Desert Storm campaign, the FHWA issued an emergency rule allowing the use of dromedary units to transport munitions (56 FR 4164, February 1, 1991) for many of the same reasons used in support of the current petition. That rule was in effect for 6 months, and was not renewed for various reasons deemed important in responding to the conditions at that time. After the emergency rule expired, in place of a regulatory solution the FHWA urged all States and in particular those where enforcement actions were taking place to recognize the importance of the situation, and to try and accommodate munitions haulers in some manner. According to the DOD's petitions, this “persuasion” method appeared to work, at least for a few years into the mid-1990's. As this verbal agreement method of handling the issue began to breakdown, a few States again began to enforce length rules on these combinations, causing interruptions in munitions delivery. While inconvenient, these actions did not become critically disruptive until the current activities aimed at terrorist actions around the world became a national priority.

Additionally, the FHWA solicited input on the Federalism implications of the rule from the National Governors' Association (NGA) as a representative for the State officials. On May 9, 2002, we sent a letter to the NGA seeking comment on any Federalism implications of our proposed changes to 23 CFR 658. Having received no responses, we published the NPRM on October 23, 2002, specifically soliciting comment on any Federalism issues associated with our proposed rule. We did not receive any comments to the docket addressing the issue of Federalism. On December 9, 2002, we sent a follow up letter to the NGA, again seeking comment on any Federalism implications to this final rule. To date, we have received no responses or indication of concerns about the Federalism implications of this rulemaking action from the NGA.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Programs Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Paperwork Reduction Act of 1995

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this final rule does not contain collection of information requirements for the purposes of the PRA.

Unfunded Mandates Reform Act of 1995

This final rule will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This final rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1532). This final rule does not add any regulatory requirement that will require any expenditure by any private sector party, or governmental agency.

Executive Order 12988 (Civil Justice Reform)

This action meets 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)

We have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not economically significant and does not concern an environmental risk to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

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

National Environmental Policy Act

The Agency has analyzed this action for the purposes of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.) and has determined that this action will not have any effect on the quality of the environment.

Executive Order 13175 (Tribal Consultation)

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that this action will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs in Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

We have analyzed this final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

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 section with the Unified Agenda.

List of Subjects in 23 CFR Part 658

• Grants program—transportation
• Highways and roads
• Motor carrier—size and weight

Issued on: June 19, 2003.

Mary E. Peters,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA amends 23 CFR part 658 as follows:

PART 658—TRUCK SIZE AND WEIGHT; ROUTE DESIGNATIONS—LENGTH, WIDTH AND WEIGHT LIMITATIONS

1. The authority citation for part 658 continues to read as follows:

Authority: 23 U.S.C. 127 and 315; 49 U.S.C. 31111-31114; 49 CFR 1.48(b).

2. Amend § 658.5 by adding the term “dromedary unit”, and revising the definition of “tractor or truck tractor”, placing them in alphabetical order, to read as follows:

§ 658.5

Definitions.

* * * * *

Dromedary unit. A box, deck, or plate mounted behind the cab and forward of the fifth wheel on the frame of the power unit of a truck tractor-semitrailer combination.

* * * * *

Tractor or Truck Tractor. The noncargo carrying power unit that operates in combination with a semitrailer or trailer, except that a truck tractor and semitrailer engaged in the transportation of automobiles may transport motor vehicles on part of the power unit, and a truck tractor equipped with a dromedary unit operating in combination with a semitrailer transporting Class 1 explosives and/or any munitions related security material as specified by the U.S. Department of Defense in compliance with 49 CFR 177.835 may use the dromedary unit to carry a portion of the cargo.

* * * * *

3. Add § 658.13 (e)(6) to read as follows:

§ 658.13

Length.

* * * * *

(e) Specialized equipment—* * *

(6) Munitions carriers using dromedary equipment. A truck tractor equipped with a dromedary unit operating in combination with a semitrailer is considered to be specialized equipment, providing the combination is transporting Class 1 explosives and/or any munitions related security material as specified by the U.S. Department of Defense in compliance with 49 CFR 177.835. No State shall impose an overall length limitation of less than 75 feet on the combination while in operation.

* * * * *

Footnotes

1.  As defined in 49 CFR 173.50. As noted in 49 CFR 173.53, prior to January 1, 1991, Class 1 explosives were known as Class A, B, or C explosives.