[Federal Register Volume 86, Number 214 (Tuesday, November 9, 2021)]
[Rules and Regulations]
[Pages 62105-62112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23796]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 393 and 396

[Docket No. FMCSA-2019-0211]
RIN 2126-AC31


Parts and Accessories Necessary for Safe Operation; Rear Impact 
Guards and Rear Impact Protection

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FMCSA amends the Federal Motor Carrier Safety Regulations 
(FMCSRs) to include rear impact guards on the list of items that must 
be examined as part of the required annual inspection for each 
commercial motor vehicle (CMV). In addition, FMCSA amends the labeling 
requirements for rear impact guards, and excludes road construction 
controlled (RCC) horizontal discharge trailers from the rear impact 
guard requirements, consistent with changes made by the National 
Highway Traffic Safety Administration (NHTSA) to the corresponding 
Federal Motor Vehicle Safety Standards (FMVSS). This final rule 
responds to rulemaking petitions, as well as a recommendation from the 
Government Accountability Office (GAO).

DATES: This final rule is effective December 9, 2021.

FOR FURTHER INFORMATION CONTACT: Mr. Luke Loy, Vehicle and Roadside 
Operations, Office of Carrier, Driver, and Vehicle Safety, FMCSA, 1200 
New Jersey Avenue SE, Washington, DC 20590-0001, (202) 366-0676, 
[email protected]. If you have questions on viewing or submitting 
material to the docket, contact Dockets Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: FMCSA organizes this final rule as follows:

I. Availability of Rulemaking Documents
II. Executive Summary
III. Legal Basis
IV. Background
    A. History of Rear Impact Guard Requirements
    B. History of Appendix A Requirements
V. Discussion of Proposed Rulemaking and Comments
    A. Background and Proposed Rulemaking
    B. Comments and Responses
    1. Rear Impact Guards in Appendix A
    2. Rear Impact Guard Labeling
    3. Applicability--RCC Horizontal Discharge Trailers
    4. Other Comments
VI. International Impacts
VII. Section-by-Section Analysis
VIII. Regulatory Analyses
    A. Executive Order (E.O.) 12866 (Regulatory Planning and 
Review), E.O. 13563 (Improving Regulation and Regulatory Review), 
and DOT Regulatory Policies and Procedures
    B. Congressional Review Act
    C. Regulatory Flexibility Act (Small Entities)
    D. Assistance for Small Entities
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act
    G. Executive Order 13132 (Federalism)
    H. Privacy
    I. Executive Order 13175 (Indian Tribal Governments)
    J. National Environmental Policy Act of 1969

I. Availability of Rulemaking Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2019-0211/document and 
choose the document to review. To view comments, click this final rule, 
and click ``Browse Comments.'' If you do not have access to the 
internet, you may view the docket online by visiting Dockets Operations 
in Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. To be sure someone is there to help you, please call (202) 
366-9317 or (202) 366-9826 before visiting Dockets Operations.

II. Executive Summary

    Section 393.86 of the FMCSRs, ``Rear impact guards and rear end 
protection,'' requires rear impact guards to be installed on most CMVs 
to reduce the incidence of passenger compartment intrusion during 
underride crashes in which a passenger vehicle strikes the rear of the 
CMV. Regulations requiring rear impact guards have been in the FMCSRs 
since 1952. The FMCSRs require that all CMVs be systematically 
inspected, repaired, and maintained to ensure that all required parts 
and accessories--including rear impact guards--are in safe and proper 
operating condition at all times (Sec.  396.3(a)(1)). Operation of a 
CMV with a missing or noncompliant rear impact guard is a violation of 
the FMCSRs.
    Every CMV must be inspected at least once every 12 months. 49 CFR 
396.17. A motor carrier may not use a CMV unless each component 
identified in Appendix A to Part 396, Code of Federal Regulations, 
``Minimum Periodic Inspection Standards,'' has passed the required 
annual inspection. While the FMCSRs have required rear impact guards 
for more than 65 years, they have not been included on the list of 
components in Appendix G that must be inspected during the annual CMV 
inspection. This means that a vehicle can pass an annual inspection 
with a missing or damaged rear impact guard.
    In response to petitions from the Commercial Vehicle Safety 
Alliance (CVSA) and Jerry and Marianne Karth

[[Page 62106]]

(``the Karths'' \1\), a recommendation included in GAO Report GAO-19-
264, ``Truck Underride Guards: Improved Data Collection, Inspections, 
and Research Needed,'' \2\ and Congressional correspondence,\3\ this 
final rule amends the FMCSRs to include rear impact guards on the list 
of items that must be examined as part of the required annual 
inspection for each CMV.
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    \1\ Copies of the petitions from CVSA and the Karths are 
available online at https://www.regulations.gov/docket?D=FMCSA-2019-0211 and in Dockets Operations.
    \2\ A copy of the GAO Report is available in the docket for this 
final rule.
    \3\ A copy of the letter is in the docket for this final rule.
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    NHTSA published two final rules on November 19, 2004, relating to 
rear impact guards. First, NHTSA amended the labeling requirement in 
FMVSS No. 223, ``Rear impact guards,'' to permit the rear impact guard 
certification label to be mounted on either the forward- or rearward-
facing surface of the horizontal member of the guard, provided the 
label does not interfere with the retroreflective sheeting required by 
the FMVSS (69 FR 67660).\4\ Prior to the amendment, the certification 
label was required to be mounted on the forward-facing surface of the 
horizontal member, 12 inches inboard of the right end of the guard. 
Second, NHTSA amended the applicability section of FMVSS No. 224, 
``Rear impact protection,'' to exclude RCC horizontal discharge 
semitrailers from the requirements of the standard (69 FR 67663).\5\ 
NHTSA concluded that installation of rear impact guards on RCC 
horizontal discharge trailers would interfere with the intended 
function of the trailers and was therefore impracticable due to the 
unique design and purpose of those vehicles. However, neither of 
NHTSA's November 2004 amendments to the FMVSS was incorporated into the 
corresponding rear impact requirements in section 393.86 of the FMCSRs. 
FMCSA amends the FMCSRs to adopt the changes above to maintain 
consistency with FMVSS Nos. 223 and 224.
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    \4\ You may view the NHTSA rule online at https://www.federalregister.gov/documents/2004/11/19/04-25704/federal-motor-vehicle-safety-standards-rear-impact-guard-labels.
    \5\ RCC horizontal discharge trailers are used in the road 
construction industry to deliver asphalt to construction sites and 
gradually discharge asphalt mix into the paving machines overlaying 
the road surface. Federal Motor Vehicle Safety Standards; Rear 
Impact Guards; Final Rule, 69 FR 67663 (Nov. 19, 2004). You may view 
the NHTSA rule online at https://www.federalregister.gov/documents/2004/11/19/04-25703/federal-motor-vehicle-safety-standards-rear-impact-guards-final-rule.
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    This final rule does not result in incremental costs or benefits 
beyond the baseline established in the FMCSRs. Although rear impact 
guards are not currently among the items that must be examined during 
annual inspections, 49 CFR 393.86 requires that certain CMVs operated 
in interstate commerce be equipped with the devices, and 49 CFR 
396.3(a) requires that parts and accessories, including rear impact 
guards, remain in safe and proper operating conditions at all times. 
Therefore, for the purposes of assessing the economic impact of this 
final rule on motor carriers, the Agency assumes compliance as part of 
the baseline established by the existing FMCSRs in section 393.86. 
Neither the labeling requirements resulting from this final rule, nor 
the exclusion of RCC horizontal discharge semitrailers from these 
requirements, will result in incremental costs or benefits.

III. Legal Basis for the Rulemaking

    This rulemaking is based on the authority of the Motor Carrier Act 
of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 (1984 Act). 
The 1935 Act, as amended, provides that ``[t]he Secretary of 
Transportation may prescribe requirements for--(1) qualifications and 
maximum hours of service of employees of, and safety of operation and 
equipment of, a motor carrier; and (2) qualifications and maximum hours 
of service of employees of, and standards of equipment of, a private 
motor carrier, when needed to promote safety of operation'' (49 U.S.C. 
31502(b)). This final rule amends the FMCSRs to respond to petitions 
for rulemaking. The adoption and enforcement of such rules is 
specifically authorized by the 1935 Act. This final rule rests squarely 
on that authority.
    The 1984 Act provides concurrent authority to regulate drivers, 
motor carriers, and vehicle equipment. It requires the Secretary to 
``prescribe regulations on commercial motor vehicle safety.'' The 
regulations shall prescribe minimum safety standards for CMVs. At a 
minimum, the regulations shall ensure that: (1) CMVs are maintained, 
equipped, loaded, and operated safely; (2) the responsibilities imposed 
on operators of CMVs do not impair their ability to operate the 
vehicles safely; (3) the physical condition of operators of CMVs is 
adequate to enable them to operate vehicles safely; (4) the operation 
of CMVs does not have a deleterious effect on the physical condition of 
the operators; and (5) drivers are not coerced by motor carriers, 
shippers, receivers, or transportation intermediaries to operate a 
vehicle in violation of a regulation promulgated under 49 U.S.C. 31136 
(which is the basis for much of the FMCSRs) or 49 U.S.C. chapters 51 or 
313 (49 U.S.C. 31136(a)(5)).
    This final rule concerns parts and accessories necessary for the 
safe operation of CMVs, and the inspection, repair, and maintenance of 
CMVs. It is based on section 31136(a)(1) because it deals with CMV 
maintenance of rear impact guards. The final rule does not address the 
driver-centered requirements of sections 31136(a)(2)-(4). As the 
amendments adopted by this final rule are primarily technical changes 
that clarify existing requirements and improve enforcement consistency, 
FMCSA believes there will be stakeholder support for this initiative 
and that coercion to violate the amendments, which is already 
prohibited by section 31136(a)(5), will not be an issue.
    Before prescribing any such regulations, FMCSA must consider the 
``costs and benefits'' of any proposal (49 U.S.C. 31136(c)(2)(A) and 
31502(d)). As discussed in greater detail in the ``Regulatory 
Analyses'' section, FMCSA has determined that this final rule is not a 
significant regulatory action.

IV. Background

A. History of Rear Impact Guard Requirements

    The first Federal requirements concerning heavy vehicle rear 
underride protection were issued in 1952 by the Bureau of Motor 
Carriers of the Interstate Commerce Commission (ICC). The regulation 
required all heavy trucks, trailers, and semitrailers manufactured 
after December 31, 1952, to be equipped with a rear-end protection 
device designed to help prevent underride. The rule required that the 
ground clearance of the underride guard be no more than 30 inches when 
the vehicle is empty. The rule also required that the underride guard 
be located no more than 24 inches forward of the rear of the vehicle 
and extend laterally to within 18 inches of each side. The underride 
device was required to be ``substantially constructed and firmly 
attached'' (17 FR 4445, May 15, 1952). The ICC's authority over motor 
carrier safety was transferred to DOT by Section 6(e)(6)(C) of the 
Department of Transportation Act (Pub. L. 89-670, 80 Stat. 931, 939-
940, Oct. 15, 1966). The authority was delegated by the Secretary to 
the Federal Highway Administration (FHWA).
    NHTSA was established in 1970 and authorized to prescribe safety 
standards for motor vehicles and motor vehicle equipment in interstate 
commerce, i.e., the FMVSS applicable to vehicle and equipment 
manufacturers. On January

[[Page 62107]]

24, 1996, NHTSA published a final rule creating FMVSS Nos. 223 and 224 
(61 FR 2004). The requirements apply to most trailers and semitrailers 
with a gross vehicle weight rating of 4,536 kg (10,000 pounds) or more, 
manufactured on or after January 26, 1998.
    FMVSS No. 223 specifies requirements that rear impact guards must 
meet before they can be installed on new trailers or semitrailers. It 
specifies strength and energy absorption requirements, as well as test 
procedures that manufacturers and NHTSA will use to determine 
compliance with the standard. The standard also requires the guard 
manufacturer to permanently label the impact guard to certify that it 
meets the requirements, and to provide instructions on the proper 
installation of the guard.
    FMVSS No. 224 requires that most new trailers and semitrailers with 
a GVWR of 4,536 kg (10,000 pounds) or more be equipped with a rear 
impact guard meeting the requirements of FMVSS No. 223. The guards must 
extend laterally to within 4 inches of the sides of the trailer, have a 
ground clearance of no more than 22 inches, and be placed as close as 
possible to, but not more than 12 inches from, the rear of the vehicle. 
To ensure that the guard will perform properly, the standard also 
requires it to be mounted on the trailer or semitrailer in accordance 
with the installation instructions provided by the guard manufacturer.
    On September 1, 1999, FHWA published a final rule amending the 
FMCSRs to require trailers and semitrailers manufactured on or after 
January 26, 1998, with a GVWR of 4,536 kg (10,000 pounds) or more, be 
equipped with rear impact guards that meet the requirements of FMVSS 
No. 223. The rear impact guards must be installed to ensure that the 
trailer or semitrailer meets the rear end protection requirements of 
FMVSS No. 224. This rule was intended to ensure that the rear impact 
protection requirements of the FMCSRs are consistent with the FMVSS (64 
FR 47703).
    As stated previously, NHTSA published two final rules on November 
19, 2004, relating to rear impact guards. NHTSA amended the labeling 
requirement in FMVSS No. 223 to permit the rear impact guard 
certification label to be mounted on either the forward- or rearward-
facing surface of the horizontal member of the guard (69 FR 67660), and 
amended the applicability section of FMVSS No. 224 to exclude RCC 
horizontal discharge semitrailers from the requirements of the standard 
(69 FR 67663). However, neither of NHTSA's November 2004 amendments to 
the FMVSS was incorporated into the corresponding rear impact 
requirements in section 393.86 of the FMCSRs.

B. History of Appendix A Requirements

    Section 210 of the 1984 Act required the Secretary of 
Transportation to establish standards for the annual or more frequent 
(i.e., periodic) inspection of all CMVs engaged in interstate or 
foreign commerce (49 U.S.C. 31142(b)). In response, FHWA adopted new 
section 396.17 on December 7, 1988, which requires all CMVs to be 
inspected at least once every 12 months (53 FR 49380, as amended on 
Dec. 8, 1989 (54 FR 50722)). In establishing specific criteria for the 
newly required annual inspection, FHWA looked to inspection criteria 
that had been developed based on the specifications in part 393, 
notably (1) the CVSA vehicle out-of-service criteria and (2) the 
vehicle portion of the FHWA National Uniform Driver-Vehicle Inspection 
Procedure (NUD-VIP). FHWA decided to use the vehicle portion of the 
NUD-VIP as the criteria for successful completion of the annual 
inspection, and in the December 1988 rule, established Appendix G to 
the FMCSRs as the minimum periodic inspection standards for Sec.  
396.17. FHWA noted that utilization of the FHWA NUD-VIP would (1) 
provide the necessary inspection-related pass/fail criteria for the 
periodic inspection at a more stringent level than the vehicle out-of-
service criteria, and (2) provide the proper level of Federal oversight 
in establishing and revising the criteria. On October 14, 2021, the 
final rule titled, ``Federal Motor Carrier Safety Regulations; General 
Technical, Organizational, Conforming, and Correcting Amendments'' (86 
FR 57060) redesignated Appendix G to Subchapter B of Chapter III as 
Appendix A to Part 396.

V. Discussion of Proposed Rulemaking and Comments

A. Background and Proposed Rulemaking

    Rear Impact Guards in Appendix A.\6\ In its petition, CVSA 
requested that the Agency amend Appendix G to include specific language 
regarding the inspection of rear impact guards during annual 
inspections. The petition stated:
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    \6\ At the time of the petitions for rulemaking, the GAO report, 
and publication of the NPRM, Appendix A to Part 396 was codified as 
Appendix G to Subchapter B of Chapter III. Therefore, those 
petitions and the comments on the NPRM refer to Appendix G. However, 
this final rule discusses them as referring to Appendix A.

    A vehicle's rear impact guard/rear end protection is inspected 
roadside as part of the North American Standard Inspection Program. 
However, the majority of commercial motor vehicles do not come into 
contact with an inspector on an annual basis. . . .
    According to data available through FMCSA's Analysis and 
Information Online web page, in fiscal year 2017 inspectors 
document[ed] more than 2,300 violations related to rear impact 
guards and rear end protection, more than half of which are for 
components that are missing, damaged or improperly constructed. 
Including rear impact guards and rear end protection in the periodic 
inspection requirements in Appendix G will call additional attention 
to this critical safety component and help ensure that each vehicle 
is checked at least once a year, improving compliance and helping to 
prevent fatalities and injuries when rear-end collisions occur. 
Furthermore, including rear impact guards and rear end protection in 
the periodic annual inspection standards will harmonize U.S. 
regulations with those in Canada and Mexico, which include rear 
impact guards and rear end protection as part of their annual 
inspection programs.

    The Karths' petition requested that FMCSA ``[a]dd underride guards 
to Appendix [A] and 396.17 (Periodic Inspection).''
    In addition, several Senators asked GAO to review data on truck 
underride crashes and information on underride guards. Between January 
2018 and March 2019, GAO conducted a performance audit that included a 
literature review and interviews with stakeholders familiar with 
underride crashes and guards.
    GAO Report GAO-19-264, published in March 2019, examines (1) the 
data that DOT reports on underride crashes, and (2) the development and 
use of underride guard technologies in the United States. GAO analyzed 
DOT's underride crash data for 2008 through 2017; reviewed NHTSA's 
proposed regulations and research on new guard technologies (80 FR 
78418, Dec. 16, 2015); and interviewed stakeholders including DOT 
officials, industry and safety groups, and State officials.
    With respect to FMCSA, GAO concluded that the lack of an annual 
inspection requirement for rear impact guards potentially affects the 
safety of the traveling public and FMCSA's ability to achieve its 
safety mission. GAO stated that ``without explicitly including the 
inspection of the rear guard in Appendix G, there is no assurance that 
rear guards in operation will be inspected at least annually to ensure 
they perform as designed to prevent or mitigate an underride crash.'' 
In its ``Recommendations for Executive Action,'' GAO stated:


[[Page 62108]]


    The Administrator of the Federal Motor Carrier Safety 
Administration should revise Appendix [A] of the agency's 
regulations to require that rear guards are inspected during 
commercial vehicle annual inspections. (Recommendation 3)

    While the GAO review was being conducted, a group of Senators urged 
the Agency to ``add `underride guards' to the list of annual inspection 
items required [for] trucks and trailers under current periodic 
inspection regulations.'' The Senators stated:

    Requiring an annual inspection of rear underride guards, in 
addition to the current list of items already checked during annual 
inspections, would ensure trucks and trailers are complying with 
regulations already on the books. Therefore, we ask that FMCSA 
consider initiating a rulemaking to amend federal Minimum Periodic 
Inspection Standards to include a subsection on ``underride 
guards.'' Should you decide to move forward with this rulemaking, we 
respectfully request that an inserted subsection be identical to the 
already mandated minimum standards of rear impact guards and rear 
end protection.

    FMCSA published a notice of proposed rulemaking (NPRM) on December 
29, 2020 (85 FR 85571). In the NPRM, FMCSA proposed to amend then 
Appendix G to Subchapter B of Chapter III, now Appendix A to Part 396, 
``Minimum Periodic Inspection Standards,'' by adding rear impact guards 
to the list of items required to be inspected pursuant to Sec.  396.17 
as part of the required annual inspection for each CMV. FMCSA proposed 
to amend Sec.  393.86(a)(6) to clarify that the certification label may 
be on the forward- or rear-facing surface of the horizontal member of 
the guard, provided it does not interfere with the retroreflective 
sheeting required by the FMVSS. FMCSA also proposed to amend (1) Sec.  
393.5 to add a definition of road construction controlled horizontal 
discharge trailer consistent with the NHTSA definition in FMVSS No. 
224, and (2) Sec. Sec.  393.86(a)(1) and 393.86(b)(1) to make it clear 
that RCC horizontal discharge trailers are not required to have a rear 
impact guard installed, consistent with the amendments made by NHTSA in 
2004.
    Although neither of NHTSA's November 2004 amendments had been 
incorporated into the rear impact requirements in section 393.86, FMCSA 
stated in the NPRM that it was not aware of any enforcement or 
compliance issues with respect to these items in the ensuing 15 years. 
As such, FMCSA stated that it did not expect the proposed amendments to 
have any impact on motor carriers.

B. Comments and Responses

    FMCSA solicited comments to the NPRM for a 60-day period, ending on 
March 1, 2021. The Agency received a total of 23 comments from the 
following parties: The Academy of Truck Accident Attorneys, Advocates 
for Highway and Auto Safety, the American Trucking Associations (ATA), 
the CVSA, the Institute for Safer Trucking, the Law Firm for Truck 
Safety, the Owner-Operator Independent Drivers Association (OOIDA), the 
National Association of Trailer Manufacturers (NATM), the National 
Automobile Dealers Association (NADA), the Truck Trailer Manufacturers 
Association (TTMA), the Truckload Carriers Association, and 12 
individuals (Lois Durso, Stephen Eimers, Cathy Forman, Mark Hawkins, 
Eric Hein, Jerry and Marianne Karth, Sulev Oun, Michael Poplaski, 
Roderick Throgmorton, and three anonymous commenters).
    1. Rear Impact Guards in Appendix A. All commenters supported the 
proposal to amend Appendix G to require rear impact guards to be 
inspected as part of the annual inspection required under section 
396.17, and this rule adopts the amendments largely as proposed in the 
NPRM.
    TTMA suggested alternative language from that proposed in the NPRM 
to clarify certain elements in Appendix A.
    TTMA stated that the phrase ``not securely attached'' in the 
proposed 15.a.2 of Appendix A ``is vague and insufficient to catch many 
unsafe, damaged or improperly repaired guards.'' TTMA suggested that 
the inspection should not allow ``broken or missing fasteners, cracked 
welds, corrosion that evidences any loss of original or parent 
material, bends that indicate prior impact damage not yet repaired, or 
asymmetrical repairs indicating the use [of] non-OEM approved 
components.''
    FMCSA response: FMCSA agrees that the proposed language was 
somewhat broad, and--consistent with other sections of Appendix A--has 
amended the language of 15.a.2 to include examples of specific 
conditions that could constitute ``not securely attached.'' FMCSA 
emphasizes that the amended language is not an all-inclusive list, and 
that motor carriers will have discretion to determine that a guard is 
not securely attached (and thus, needs to be repaired/replaced) as a 
result of other conditions observed during the annual inspection.
    TTMA stated that the phrase ``and not beyond'' in the proposed 
15.a.3 of Appendix A ``is vague and could refer to either `the side 
extremity of the trailer' or to the point 4 inches inboard.'' To avoid 
confusion, TTMA suggested using the phrase ``. . . and not beyond the 
side extremity of the trailer.''
    FMCSA response: FMCSA agrees, and has amended the language of 
15.a.3 to make it clear that the guard must extend to within 4 inches 
of the side extremity of the vehicle, but may not extend beyond the 
side extremity of the vehicle.
    TTMA stated that the proposed language in 15.a.4-6 and 15.b.4-5 of 
Appendix A starts with ``Guard,'' and since the guard is the whole 
system including the uprights, horizontal member, and attachments, TTMA 
suggested that ``Guard'' should more appropriately be ``Guard 
horizontal member'' in these sections.
    FMCSA response: FMCSA agrees, and has amended the language as 
suggested. (FMCSA notes that this applies to 15.a.3-6, as opposed to 
15.a.4-6, and to 15.b.3-5, as opposed to 15.b.4-5, respectively).
    2. Rear Impact Guard Labeling. Most commenters supported the NPRM 
proposal to amend the labeling requirements in Sec.  393.86(a)(6) to be 
consistent with the changes made by NHTSA in 2004.
    While ATA supported the proposed amendment to make the FMCSR 
labeling requirement consistent with the corresponding FMVSS labeling 
requirement, it noted support for a CVSA petition for rulemaking 
submitted to FMCSA requesting that the rear impact guard labeling 
requirement be removed from section 393.86(a)(6) of the FMCSRs. CVSA 
and NADA opposed the proposed amendment, and both recommended that 
FMCSA instead eliminate the labeling requirement.
    FMCSA response: As noted in the NPRM, the proposal to amend the 
labeling requirement in section 393.86(a)(6) was simply an action to 
make the labeling requirement in the FMCSRs consistent with a change 
made to the corresponding FMVSS by NHTSA in 2004. While CVSA has 
submitted petitions for rulemaking to both FMCSA and NHTSA requesting 
elimination of the labeling requirement for rear impact guards, FMCSA 
action on that petition is outside the scope of this rulemaking and 
will be addressed separately.
    3. Applicability--RCC Horizontal Discharge Trailers. Most 
commenters supported the NPRM proposal to add a definition of road 
construction controlled horizontal discharge trailer, and to make it 
clear that RCC horizontal discharge trailers are not required to have a 
rear impact guard installed,

[[Page 62109]]

consistent with the amendments made by NHTSA in 2004.
    The Law Firm for Truck Safety opposed the proposal to exclude RCC 
horizontal discharge trailers from the requirement to have a rear 
impact guard, stating that ``NHTSA is wrong to have amended the 
applicability section of FMVSS No. 224, `Rear impact protection,' to 
exclude RCC horizontal discharge semitrailers from the requirements of 
the standard.'' The commenter noted that there are rear impact guards 
on various trucks in Europe ``that this rule making is attempting to 
exclude.''
    FMCSA response: As noted in the NPRM, the proposal to exclude RCC 
horizontal discharge trailers from the requirement to have a rear 
impact guard installed was simply an action to make the applicability 
requirements in the FMCSRs consistent with those made via an amendment 
to the FMVSS made by NHTSA in 2004. Any action to remove RCC horizontal 
discharge trailers from the list of excluded vehicles in FMVSS No. 224 
would have to be done by NHTSA through a notice and comment rulemaking 
proceeding and is outside the scope of this rulemaking.
    4. Other comments. In addition to comments on the proposed 
amendments to Appendix A, labeling, and RCC horizontal discharge 
trailers, FMCSA also received comments regarding a wide range of other 
issues relating to underride protection, including (a) enhanced 
strength requirements for rear impact guards, (b) the lack of 
regulations for side underride protection, (c) rear impact protection 
for single unit trucks, (d) the recommendations from the GAO Report, 
and (e) automatic emergency braking. All these issues are outside of 
the scope of this rulemaking.

VI. International Impacts

    The FMCSRs, and any exceptions to the FMCSRs, apply only within the 
United States (and, in some cases, U.S. territories). Motor carriers 
and drivers are subject to the laws and regulations of the countries in 
which they operate, unless an international agreement states otherwise. 
Drivers and carriers should be aware of the regulatory differences 
among nations.

VII. Section-by-Section Analysis

A. Part 393--Parts and Accessories Necessary for Safe Operation

Sec.  393.5 Definitions
    FMCSA amends this section by adding a definition of Road 
construction controlled horizontal discharge trailer.
Sec.  393.86(a)(1) General Requirements for Trailers and Semitrailers 
Manufactured on or After January 26, 1998
    FMCSA amends this section by adding RCC horizontal discharge 
trailers to the list of vehicles that are not required to have a rear 
impact guard.
Sec.  393.86(a)(6) Certification and Labeling Requirements for Rear 
Impact Protection Guards
    FMCSA amends this section to clarify that the label may be on the 
forward- or rear-facing surface of the horizontal member of the guard, 
provided it does not interfere with the retroreflective sheeting 
required by the FMVSS.
Sec.  393.86(b)(1) Requirements for Motor Vehicles Manufactured After 
December 31, 1952 (Except Trailers or Semitrailers Manufactured on or 
After January 26, 1998)
    FMCSA amends this section by adding RCC horizontal discharge 
trailers to the list of vehicles that are not required to have a rear 
impact guard.

B. Appendix A to Part 396 Minimum Periodic Inspection Standards

    FMCSA amends Appendix A by adding rear impact guards to the list of 
items required to be inspected pursuant to Sec.  396.17.

VIII. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    FMCSA has considered the impact of this final rule under E.O. 12866 
(58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 
(76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory 
Review, and DOT's regulatory policies and procedures. The Office of 
Information and Regulatory Affairs within the Office of Management and 
Budget (OMB) determined that this final rulemaking is not a significant 
regulatory action under section 3(f) of E.O. 12866, as supplemented by 
E.O. 13563, and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of that Order. Accordingly, OMB has not 
reviewed it under that E.O.
    In response to rulemaking petitions and a recommendation from the 
GAO, FMCSA amends Appendix G to Subchapter B of Chapter III in 49 CFR. 
This amendment adds rear impact guards to the list of items that must 
be examined as part of the required annual inspection for each CMV.
    Section 393.86(a) currently requires most trailers and semitrailers 
manufactured on or after January 26, 1998, to be equipped with rear 
impact guards. This final rule does not require installation or 
maintenance of rear impact guards beyond the current requirements in 
section 393.86.
    This final rule does not result in incremental costs or benefits 
beyond the baseline established in the FMCSRs. As required by 49 CFR 
396.17, motor carriers currently complete annual inspections of all 
items identified in Appendix G. FMCSA assumes that motor carriers 
currently review rear impact guards in their annual inspection programs 
to remain in compliance with the current requirements in 49 CFR 
396.3(a)(1), which states that parts and accessories, including rear 
impact guards, must be in safe and proper operating conditions at all 
times. Additionally, CMVs are subject to inspections conducted in 
accordance with the CVSA's North American Standard Inspection Program 
that may occur throughout the year, which include the examination of 
rear impact guards. According to data contained in the Motor Carrier 
Management Information System (MCMIS), most motor carriers comply with 
49 CFR 396.3(a)(1). Specifically, there were approximately 2.1 million 
vehicle roadside inspections conducted in the United States in 2019, 
and there were approximately 3.1 million vehicle violations cited 
during those inspections. Only 3,189--or about 0.103 percent--were rear 
impact guard violations.\7\
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    \7\ Data Source: MCMIS data snapshot as of 5/28/2021, including 
current year-to-date information for CY 2021. The data presented are 
accurate as of the date listed, but are subject to update as new or 
additional information may be reported to MCMIS following the 
snapshot date.
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    FMCSA also makes two minor changes to maintain consistency between 
the FMCSRs and NHTSA's FMVSS Nos. 223 and 224. As described above, 
these changes provide consistent labeling requirements and exclude RCC 
horizontal discharge semitrailers from the requirements of this 
standard. These administrative changes do not result in incremental 
impacts.

B. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801-808), the 
Office of Information and Regulatory Affairs designated this rule as 
not a ``major rule.'' \8\
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    \8\ A ``major rule'' means any rule that OMB finds has resulted 
in or is likely to result in (a) an annual effect on the economy of 
$100 million or more; (b) a major increase in costs or prices for 
consumers, individual industries, geographic regions, Federal, 
State, or local government agencies; or (c) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export 
markets (49 CFR 389.3).

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[[Page 62110]]

C. Regulatory Flexibility Act (Small Entities)

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.) 
requires Federal agencies to consider the effects of their regulatory 
actions on small businesses and other small entities and to minimize 
any significant economic impact. The term small entities comprises 
small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields 
and governmental jurisdictions with populations of less than 50,000 (5 
U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the 
impact of all regulations on small entities and mandates that agencies 
strive to lessen any adverse effects on these businesses.
    Small entity is defined in 5 U.S.C. 601(3) as having the same 
meaning small business concern under Section 3 of the Small Business 
Act. This includes any small business concern that is independently 
owned and operated and is not dominant in its field of operation. 
Section 601(4), likewise, includes within the definition of ``small 
entities'' not-for-profit enterprises that are independently owned and 
operated and are not dominant in their fields of operation. In 
addition, Section 601(5) defines small entities as governments of 
cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000. The Small Business 
Administration develops the size standards used to classify entities as 
small, and establishes separate standards for each industry, as defined 
by the North American Industry Classification System. The motor 
carriers affected by this final rule fall into many different industry 
codes with differing size standards. Because this final rule impacts 
all motor carriers, including those considered to be small entities, 
this rule will impact a substantial number of small entities.
    However, FMCSA has determined that this final rule does not have a 
significant impact on the affected entities. This final rule requires 
motor carriers to include rear impact guards on the list of items that 
must be examined as part of the required annual CMV inspection. FMCSA 
believes that motor carriers have been inspecting the rear impact 
guards on their CMVs to remain in compliance with requirements that 
have been in the FMCSRs since 1952. As such, this final rule does not 
have incremental impacts on the affected entities. The two minor 
changes to maintain consistency between the FMCSRs and NHTSA's FMVSS 
Nos. 223 and 224 do not result in incremental impacts. The impacts of 
this final rule are de minimis, and therefore, the final rule does not 
have a significant economic impact on a substantial number of small 
entities.
    Consequently, I certify that the final rule does not have a 
significant economic impact on a substantial number of small entities.

D. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996,\9\ FMCSA wants to assist small 
entities in understanding this final rule so that they can better 
evaluate its effects on themselves and participate in the rulemaking 
initiative. If the final rule would affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please consult the 
person listed under FOR FURTHER INFORMATION CONTACT.
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    \9\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman (Office of the National 
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness 
Boards. The Ombudsman evaluates these actions annually and rates each 
agency's responsiveness to small business. If you wish to comment on 
actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). 
DOT has a policy regarding the rights of small entities to regulatory 
enforcement fairness and an explicit policy against retaliation for 
exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
(UMRA) requires Federal agencies to assess the effects of their 
discretionary regulatory actions. In particular, the Act addresses 
actions that may result in the expenditure by a State, local, or Tribal 
government, in the aggregate, or by the private sector of $170 million 
(which is the value equivalent of $100,000,000 in 1995, adjusted for 
inflation to 2020 levels) or more in any one year. Though this final 
rule would not result in such an expenditure, and the analytical 
requirements of UMRA do not apply as a result, the Agency discusses the 
effects of this rule elsewhere in this preamble.

F. Paperwork Reduction Act

    This final rule contains no new information collection under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. Executive Order 13132 (Federalism)

    A rule has implications for federalism under Section 1(a) of 
Executive Order 13132 if it has ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' FMCSA determined that this final rule 
does not have substantial direct costs on or for States, nor does it 
limit the policymaking discretion of States. Nothing in this document 
preempts any State law or regulation. Therefore, this final rule does 
not have sufficient federalism implications to warrant the preparation 
of a Federalism Impact Statement.

H. Privacy

    The Consolidated Appropriations Act, 2005,\10\ requires the Agency 
to assess the privacy impact of a regulation that will affect the 
privacy of individuals. This rule would not require the collection of 
personally identifiable information (PII).
---------------------------------------------------------------------------

    \10\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 
17, 2002).
---------------------------------------------------------------------------

    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency that receives records contained in a system 
of records from a Federal agency for use in a matching program.
    The E-Government Act of 2002,\11\ requires Federal agencies to 
conduct a PIA for new or substantially changed technology that 
collects, maintains, or disseminates information in an identifiable 
form. No new or substantially changed technology will collect, 
maintain, or disseminate information as a result of this rule. 
Accordingly, FMCSA has not conducted a PIA.
---------------------------------------------------------------------------

    \11\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5 
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------

    In addition, the Agency submitted a Privacy Threshold Assessment to 
evaluate the risks and effects the proposed rulemaking might have on

[[Page 62111]]

collecting, storing, and sharing personally identifiable information. 
The DOT Privacy Office has determined that this rulemaking does not 
create privacy risk.

I. Executive Order 13175 (Indian Tribal Governments)

    This final rule does not have Tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it does not have a substantial direct effect on 
one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.

J. National Environmental Policy Act of 1969

    FMCSA analyzed this final rule pursuant to the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined this action is categorically excluded from further analysis 
and documentation in an environmental assessment or environmental 
impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), 
Appendix 2, paragraph (aa). The Categorical Exclusion (CE) in paragraph 
(aa) covers regulations requiring motor carriers, their officers, 
drivers, agents, representatives, and employees directly in control of 
CMVs to inspect, repair, and provide maintenance for every CMV used on 
a public road. The requirements adopted in this rule are covered by 
this CE and the final rule does not have any effect on the quality of 
the environment.

List of Subjects in 49 CFR Part 393

    Highway safety, Motor carriers, Motor vehicle safety, Reporting and 
recordkeeping requirements.

    In consideration of the foregoing, FMCSA amends 49 CFR part 393 and 
Appendix G to Subchapter B of Chapter III as follows:

PART 393--PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION

0
1. The authority citation for part 393 continues to read as follows:

    Authority:  49 U.S.C. 31136, 31151, and 31502; sec. 1041(b) of 
Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); sec. 5301 and 5524 of 
Pub. L. 114-94, 129 Stat. 1312, 1543, 1560; and 49 CFR 1.87.


0
2. Amend Sec.  393.5 by adding a definition for Road construction 
controlled horizontal discharge trailer in alphabetical order to read 
as follows:


Sec.  393.5  Definitions.

* * * * *
    Road construction controlled horizontal discharge trailer means a 
trailer or semitrailer that is equipped with a mechanical drive and a 
conveyor to deliver asphalt and other road building materials, in a 
controlled horizontal manner, into a lay down machine or paving 
equipment for road construction and paving operations.
* * * * *

0
3. In Sec.  393.86 revise paragraphs (a)(1), (a)(6) introductory text, 
and (b)(1) introductory text to read as follows:


Sec.  393.86  Rear impact guards and rear end protection.

    (a)(1) General requirements for trailers and semitrailers 
manufactured on or after January 26, 1998. Each trailer and semitrailer 
with a gross vehicle weight rating of 4,536 kg (10,000 pounds) or more, 
and manufactured on or after January 26, 1998, must be equipped with a 
rear impact guard that meets the requirements of Federal Motor Vehicle 
Safety Standard No. 223 (49 CFR 571.223) in effect at the time the 
vehicle was manufactured. When the rear impact guard is installed on 
the trailer or semitrailer, the vehicle must, at a minimum, meet the 
requirements of FMVSS No. 224 (49 CFR 571.224) in effect at the time 
the vehicle was manufactured. The requirements of paragraph (a) of this 
section do not apply to pole trailers (as defined in Sec.  390.5 of 
this chapter); pulpwood trailers, low chassis vehicles, special purpose 
vehicles, wheels back vehicles, and road construction controlled 
horizontal discharge trailers (as defined in Sec.  393.5); and trailers 
towed in driveaway-towaway operations (as defined in Sec.  390.5).
* * * * *
    (6) Certification and labeling requirements for rear impact 
protection guards. Each rear impact guard used to satisfy the 
requirements of paragraph (a)(1) of this section must be permanently 
marked or labeled as required by FMVSS No. 223 (49 CFR 571.223, S5.3). 
The label shall be placed on the forward or rearward facing surface of 
the horizontal member of the guard, provided that the label does not 
interfere with the retroreflective sheeting required by S5.7.1.4.1(c) 
of FMVSS No. 108 (49 CFR 571.108), and is readily accessible for visual 
inspection. The certification label must contain the following 
information:
* * * * *
    (b)(1) Requirements for motor vehicles manufactured after December 
31, 1952 (except trailers or semitrailers manufactured on or after 
January 26, 1998). Each motor vehicle manufactured after December 31, 
1952, (except truck tractors, pole trailers, pulpwood trailers, road 
construction controlled horizontal discharge trailers, or vehicles in 
driveaway-towaway operations) in which the vertical distance between 
the rear bottom edge of the body (or the chassis assembly if the 
chassis is the rearmost part of the vehicle) and the ground is greater 
than 76.2 cm (30 inches) when the motor vehicle is empty, shall be 
equipped with a rear impact guard(s). The rear impact guard(s) must be 
installed and maintained in such a manner that:
* * * * *

PART 396--INSPECTION, REPAIR, AND MAINTENANCE

0
4. The authority citation for part 396 continues to read as follows:

    Authority:  49 U.S.C. 504, 31133, 31136, 31151, 31502; sec. 
32934, Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524, Pub. L. 114-
94, 129 Stat. 1312, 1560; and 49 CFR 1.87.


0
5. Amend Appendix A to Part 396 by adding Section 15 to read as 
follows:

Appendix A to Part 396--Minimum Periodic Inspection Standards

* * * * *
    15. Rear Impact Guard
    a. Trailers and semitrailers with a GVWR of 4,536 kg (10,001 
lbs.) or more, manufactured on or after January 26, 1998 (see 
exceptions in Sec.  393.86(a)(1)).
    1. Missing guard.
    2. Guard is not securely attached to trailer, including broken 
or missing fasteners, any welds or parent metal cracked, or other 
damage that compromises secure attachment of the guard.
    3. Guard horizontal member does not extend to within 100 mm (4 
inches) of each, or extends beyond either, side extremity of the 
vehicle.
    4. Guard horizontal member is more than 560 mm (22 inches) above 
the ground.
    5. Guard horizontal member is more than 305 mm (12 inches) 
forward of the rear extremity of the vehicle.
    6. Guard horizontal member does not have a cross sectional 
vertical height of at least 100 mm (4 inches) across its entire 
width.

[[Page 62112]]

    b. Commercial motor vehicles manufactured after December 31, 
1952 (except trailers and semitrailers manufactured on or after 
January 26, 1998) (see exceptions in Sec.  393.86(b)(1) and Sec.  
393.86(b)(3)).
    1. Missing guard.
    2. Guard is not securely attached to trailer by bolts, welding, 
or other comparable means.
    3. Guard horizontal member is more than 762 mm (30 inches) above 
the ground.
    4. Guard horizontal member does not extend to within 457 mm (18 
inches) of each side extremity of the vehicle.
    5. Guard horizontal member is more than 610 mm (24 inches) 
forward of the rear extremity of the vehicle.

    Issued under authority delegated in 49 CFR 1.87.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-23796 Filed 11-8-21; 8:45 am]
BILLING CODE 4910-EX-P


