
[Federal Register: March 3, 2009 (Volume 74, Number 40)]
[Proposed Rules]               
[Page 9202-9205]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr09-15]                         

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

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2009-0038]
RIN 2127-AK44

 
Federal Motor Vehicle Safety Standard; Air Brake Systems

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Notice of Proposed Rulemaking (NPRM).

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

SUMMARY: This document proposes to extend by 18 months a requirement 
that trailers with antilock brake systems be equipped with an external 
antilock malfunction indicator lamp. It also considers making the 
requirement permanent. The indicator lamp requirement, which is 
included in the Federal motor vehicle safety standard that governs 
vehicles equipped with air brakes, was originally scheduled to sunset 
on March 1, 2009, but has been extended to September 1, 2009 in an 
interim final rule published in today's Federal Register. Under our 
proposal, the sunset date would be extended until March 1, 2011. This 
rulemaking is in response to a petition from the Commercial Vehicle 
Safety Alliance (CVSA), which has asked that this requirement be made 
permanent. Extending the sunset date for an additional 18 months would 
enable the agency to fully analyze CVSA's request that the requirement 
be made permanent, and avoid a potential confusing time gap in the 
vehicles subject to the requirement.

DATES: You should submit your comments early enough to ensure that the 
Docket receives them not later than April 2, 2009. Comments may be 
combined with ones on the accompanying interim final rule, which is 
being published today using the same docket number.

ADDRESSES: You may submit comments to the docket number identified in 
the heading of this document by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: 1200 New Jersey Avenue, SE., 
West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to http://www.regulations.gov, including any personal information 
provided. Please see the Privacy Act heading below.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78) or you may visit http://
DocketInfo.dot.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. or the street 
address listed above. Follow the online instructions for accessing the 
dockets.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call Mr. 
George Soodoo, Office of Crash Avoidance Standards (Phone: 202-366-
4931; FAX: 202-366-7002). For legal issues, you may call Mr. Ari Scott, 
Office of the Chief Counsel (Phone: 202-366-2992; FAX: 202-366-3820). 
You may send mail to these officials at: National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 
20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Summary of the CVSA Petitions
III. Agency Analysis and Proposal
IV. Shortened Comment Period
V. Public Participation
VI. Rulemaking Analyses and Notices

I. Background

    The final rule requiring antilock brake systems (ABS) on truck 
tractors, other air-braked heavy vehicles including trailers, and 
hydraulic-braked trucks was published in the Federal Register (60 FR 
13216) on March 10, 1995. As amended by that final rule, FMVSS No. 121, 
Air Brake Systems, required two separate in-cab ABS malfunction 
indicator lamps for each truck tractor, one for the tractor's ABS 
(effective March 1, 1997) and the other for the trailer's ABS 
(effective March 1, 2001). The final rule also required air-braked 
trailers to be equipped with an externally mounted ABS malfunction lamp 
(effective March 1, 1998) so that the driver of a non-ABS equipped 
tractor or a pre-2001 ABS-equipped tractor towing an ABS-equipped 
trailer would be alerted in the event of a malfunction in the trailer 
ABS.
    The requirement for the trailer-mounted ABS malfunction indicator 
lamp was originally scheduled to expire on March 1, 2009. The agency 
established this sunset date in light of the fact that, after this 
eight-year period, many of the pre-2001 tractors without the dedicated 
trailer ABS malfunction indicator lamp would no longer be in long-haul 
service. The agency based its decision on the belief that the typical 
tractor life was five to seven years, and therefore decided on an 
eight-year period for the external ABS malfunction indicator lamp 
requirement. We further stated our belief that there would be no need 
for a redundant ABS malfunction lamp mounted on the trailer after the 
vast majority of tractors were equipped with an in-cab ABS malfunction 
indicator lamp for the trailer.

II. Summary of the CVSA Petitions

    CVSA is an international not-for-profit organization comprised of 
local, state, provincial, territorial and federal motor carrier safety 
officials and industry representatives from the United States, Canada, 
and Mexico. The CVSA promotes commercial vehicle safety and sponsors 
vehicle inspections by partnering with the Federal Motor Carrier Safety 
Administration (FMCSA), Pipeline and Hazardous Materials Safety 
Administration, Canadian Council of Motor Transport Administrators, 
Transport Canada, and the Secretariat of Communications and 
Transportation (Mexico).
    On October 22, 2007, CVSA petitioned the National Highway Traffic 
safety Administration (NHTSA) to amend FMVSS No. 121, Air Brake 
Systems, to make the requirement for the external antilock malfunction 
indicator lamp permanent instead of allowing it to expire, as 
originally intended, on March 1, 2009 (and is subsequently being 
modified to September 1, 2009, by an accompanying interim final rule). 
CVSA included in its petition suggested regulatory text along with its 
rationale for why the extension should be permanent. Since receiving 
the petition, the agency has received

[[Page 9203]]

letters of support for the CVSA petition from the Truck Trailer 
Manufacturers Association, the Owner Operator Independent Drivers 
Association, and the Heavy Duty Brake Manufacturers Council.
    On October 15, 2008 CVSA again petitioned NHTSA to amend FMVSS No. 
121, requesting that the agency issue a ``stay'' of the sunset date of 
March 1, 2009 for the external ABS warning lamp. CVSA stated that a 
``stay'' would prevent a time gap in the regulation, while NHTSA 
continues to evaluate its 2007 petition. CVSA stated that the vehicle 
inspection process has already been complicated by the phased-in ABS 
and ABS malfunction indicator lamp requirements and a gap would further 
complicate the inspection process and cause additional confusion for 
drivers and maintenance personnel.

III. Agency Analysis and Proposal

    The CVSA petitions raise two main issues that the agency will 
address. The first issue relates to ensuring that a driver or inspector 
can determine the operational status of a trailer ABS, if the trailer 
is not equipped with an external ABS lamp or the tractor is a pre-2001 
tractor without the trailer in-cab ABS warning lamp. The second issue 
relates to the use of the external trailer ABS warning lamp for 
diagnostic purposes. We note that CVSA did not provide data indicating 
the number of pre-2001 truck tractors it believed to still be in long 
haul service.
    The agency wants to ensure that drivers and inspectors can 
determine if a ABS trailer system is functioning, and we also want to 
avoid imposing unnecessary burdens on trailer manufacturers. Moreover, 
NHTSA is also concerned about the complications and confusion that 
could arise for drivers and inspectors, if the ABS warning lamp 
requirement sunsets and then NHTSA decides to extend it, either 
permanently or for some fixed period of time.
    While we are continuing to evaluate whether a permanent or long-
term extension would be appropriate, we have tentatively concluded that 
a two-year extension is in the interests of motor vehicle safety. This 
extension would prevent a potential gap in the regulation and allow the 
agency additional time to evaluate all the arguments raised in the CVSA 
petitions.
    Given the imminence of the March 1, 2009 sunset, it is not possible 
for us to complete notice and comment rulemaking prior to that time. We 
are therefore publishing two related documents in today's Federal 
Register. We are publishing an interim final rule that extends the 
sunset date for six months, to September 1, 2009, as well as this 
proposed rule which would extend the sunset date for an additional 18 
months, to March 1, 2011. The interim final rule will prevent the lamp 
requirement from sunsetting prior to our making a decision on the NPRM.
    Accordingly, NHTSA is granting the petitions in part and is 
proposing to extend the sunset date by an additional 18 months, from 
September 1, 2009 to March 1, 2011. NHTSA expects to be able to fully 
analyze the issues raised by the petitions within this time frame and 
further address the issues raised by the CVSA petitions prior to March 
1, 2011. Furthermore, depending on the comments received in response to 
this document, if the agency is able to fully resolve the outstanding 
issues, the agency may in a final rule based on this NPRM decide to 
remove the sunset provision entirely and make the requirement for the 
indicator lamp permanent.

IV. Shortened Comment Period

    Given the short time before the sunset of the lamp requirement, 
even with the six-month extension provided in the interim final rule, 
we are providing a 30-day comment period. Because the full duration of 
the extension is only six months, we believe this shortened comment 
period is appropriate. We also note that the subject of the proposal is 
the extension of a longstanding existing requirement. Therefore, there 
has been considerable experience with the requirement at issue.

V. Public Participation

How do I prepare and submit comments?

    Your comments must be written and in English. To ensure that your 
comments are correctly filed in the Docket, please include the docket 
number of this document in your comments.
    Your comments must not be more than 15 pages long. (49 CFR 553.21). 
We established this limit to encourage you to write your primary 
comments in a concise fashion. However, you may attach necessary 
additional documents to your comments. There is no limit on the length 
of the attachments.
    Please submit two copies of your comments, including the 
attachments, to Docket Management at the address given above under 
ADDRESSES.
    Comments may also be submitted to the docket electronically by 
logging onto the Docket Management System Web site at http://
www.regulations.gov. Follow the online instructions for submitting 
comments.
    Please note that pursuant to the Data Quality Act, in order for 
substantive data to be relied upon and used by the agency, it must meet 
the information quality standards set forth in the OMB and DOT Data 
Quality Act guidelines. Accordingly, we encourage you to consult the 
guidelines in preparing your comments. OMB's guidelines may be accessed 
at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's 
guidelines may be accessed at http://dms.dot.gov.

How can I be sure that my comments were received?

    If you wish Docket Management to notify you upon its receipt of 
your comments, enclose a self-addressed, stamped postcard in the 
envelope containing your comments. Upon receiving your comments, Docket 
Management will return the postcard by mail.

How do I submit confidential business information?

    If you wish to submit any information under a claim of 
confidentiality, you should submit three copies of your complete 
submission, including the information you claim to be confidential 
business information, to the Chief Counsel, NHTSA, at the address given 
above under FOR FURTHER INFORMATION CONTACT. In addition, you should 
submit two copies, from which you have deleted the claimed confidential 
business information, to Docket Management at the address given above 
under ADDRESSES. When you send a comment containing information claimed 
to be confidential business information, you should include a cover 
letter setting forth the information specified in our confidential 
business information regulation. (49 CFR Part 512.)

Will the agency consider late comments?

    We will consider all comments that Docket Management receives 
before the close of business on the comment closing date indicated 
above under DATES. To the extent possible, we will also consider 
comments that Docket Management receives after that date. If Docket 
Management receives a comment too late for us to consider in developing 
a final rule (assuming that one is issued), we will consider that 
comment as an informal suggestion for future rulemaking action.

How can I read the comments submitted by other people?

    You may read the comments received by Docket Management at the 
address

[[Page 9204]]

given above under ADDRESSES. The hours of the Docket are indicated 
above in the same location. You may also see the comments on the 
Internet. To read the comments on the Internet, go to http://
www.regulations.gov. Follow the online instructions for accessing the 
dockets.
    Please note that even after the comment closing date, we will 
continue to file relevant information in the Docket as it becomes 
available. Further, some people may submit late comments. Accordingly, 
we recommend that you periodically check the Docket for new material.

VI. Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This action was not reviewed by the Office of Management and Budget 
under E.O. 12866. The agency has considered the impact of this action 
under the Department of Transportation's regulatory policies and 
procedures (44 FR 11034; February 26, 1979), and has determined that it 
is not ``significant'' under them.
    This document proposes to delay the sunset date of the antilock 
malfunction indicator lamp requirement from September 1, 2009 to March 
1, 2011. Since trailers manufactured after March 1, 1998 have already 
been complying with the requirement and the agency is merely proposing 
to extend the requirement for an additional two years, the impact on 
costs is not significant. Not supplying a lamp could result in a 
trailer that could be made for a few dollars less. We estimate the 
costs to be so minimal that preparation of a full regulatory evaluation 
is not required.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
NHTSA has evaluated the effects of this action on small entities. I 
hereby certify that this proposed rule would not have a significant 
impact on a substantial number of small entities. This proposal would 
merely extend a sunset provision in FMVSS No. 121. No other changes are 
being proposed in this document. Small organizations and small 
government units would not be significantly affected since this 
proposed action would not affect the price of new motor vehicles. 
Trailer manufacturers would not be required to install new systems but 
rather continue to install the systems they are already installing for 
two additional years.

Executive Order 13132 (Federalism)

    NHTSA has examined today's proposed rule pursuant to Executive 
Order 13132 (64 FR 43255, August 10, 1999) and concluded that no 
additional consultation with States, local governments or their 
representatives is mandated beyond the rulemaking process. The agency 
has concluded that the proposed rule does not have federalism 
implications because it does not have ``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.''
    Further, no consultation is needed to discuss the preemptive effect 
of today's proposed rule. NHTSA's safety standards can have preemptive 
effect in at least two ways. First, the National Traffic and Motor 
Vehicle Safety Act contains an express preemption provision: ``When a 
motor vehicle safety standard is in effect under this chapter, a State 
or a political subdivision of a State may prescribe or continue in 
effect a standard applicable to the same aspect of performance of a 
motor vehicle or motor vehicle equipment only if the standard is 
identical to the standard prescribed under this chapter.'' 49 U.S.C. 
30103(b)(1). It is this statutory command that unavoidably preempts 
State legislative and administrative law, not today's rulemaking, so 
consultation would be unnecessary.
    Second, the Supreme Court has recognized the possibility of implied 
preemption: State requirements imposed on motor vehicle manufacturers, 
including sanctions imposed by State tort law, can stand as an obstacle 
to the accomplishment and execution of a NHTSA safety standard. When 
such a conflict is discerned, the Supremacy Clause of the Constitution 
makes the State requirements unenforceable. See Geier v. American Honda 
Motor Co., 529 U.S. 861 (2000). NHTSA has considered today's proposed 
rule and does not currently foresee any potential State requirements 
that might conflict with it. Without any conflict, there could not be 
any implied preemption.

Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation, 
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996) requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect; (2) clearly specifies the effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct, while promoting simplification and burden reduction; 
(4) clearly specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. This document is consistent with that requirement.
    Pursuant to this Order, NHTSA notes as follows. The preemptive 
effect of this proposed rule is discussed above. NHTSA notes further 
that there is no requirement that individuals submit a petition for 
reconsideration or pursue other administrative proceeding before they 
may file suit in court.

Protection of Children From Environmental Health and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health and Safety Risks'' (62 FR 19855, April 23, 1997), applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental, 
health, or safety risk that the agency has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the agency.
    This proposed rule is not expected to affect children and it is not 
an economically significant regulatory action under Executive Order 
12866. Consequently, no further analysis is required under Executive 
Order 13045.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), a person is not 
required to respond to a collection of information by a Federal agency 
unless the collection displays a valid OMB control number. There is not 
any information collection requirement associated with this NPRM.

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272) directs the 
agency to evaluate and use voluntary consensus standards in its 
regulatory activities unless doing so would be inconsistent with 
applicable law or is otherwise impractical. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business

[[Page 9205]]

practices) that are developed or adopted by voluntary consensus 
standards bodies, such as the Society of Automotive Engineers. The 
NTTAA directs us to provide Congress (through OMB) with explanations 
when we decide not to use available and applicable voluntary consensus 
standards. There are no voluntary consensus standards developed by 
voluntary consensus standards bodies pertaining to this NPRM.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires agencies to 
prepare a written assessment of the costs, benefits and other effects 
of proposed or final rules that include a Federal mandate likely to 
result in the expenditure by State, local or tribal governments, in the 
aggregate, or by the private sector, of more than $100 million annually 
(adjusted for inflation with base year of 1995). This NPRM would not 
result in expenditures by State, local or tribal governments, in the 
aggregate, or by the private sector in excess of $100 million annually.

National Environmental Policy Act

    NHTSA has analyzed this rulemaking action for the purposes of the 
National Environmental Policy Act. The agency has determined that 
implementation of this action will not have any significant impact on 
the quality of the human environment.

Executive Order 13211

    Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any 
rulemaking that: (1) Is determined to be economically significant as 
defined under E.O. 12866, and is likely to have a significantly adverse 
effect on the supply of, distribution of, or use of energy; or (2) that 
is designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. This rulemaking is 
not subject to E.O. 13211.

Plain Language

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require each agency to write all rules in plain language. 
Application of the principles of plain language includes consideration 
of the following questions:
     Have we organized the material to suit the public's needs?
     Are the requirements in the rule clearly stated?
     Does the rule contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?

If you have any responses to these questions, please include them in 
your comments on this proposal.

Regulatory Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://www.regulations.gov.

List of Subjects in 49 CFR Part 571

    Imports, Motor vehicle safety, Motor vehicles, and Tires.

    In consideration of the foregoing, NHTSA proposes to amend 49 CFR 
part 571 as set forth below.

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

    1. The authority citation for part 571 continues to read as 
follows:

    Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166; 
delegation of authority at 49 CFR 1.50.

    2. Section 571.121 is amended by revising S5.2.3.3(a) to read as 
follows:


Sec.  571.121;  Standard No. 121; Air brake systems.

* * * * *
    S5.2.3.3 Antilock malfunction indicator.
    (a) In addition to the requirements of S5.2.3.2, each trailer and 
trailer converter dolly manufactured on or after March 1, 1998, and 
before March 1, 2011, shall be equipped with an external antilock 
malfunction indicator lamp that meets the requirements of S5.2.3.3 (b) 
through (d).
* * * * *

    Issued: February 26, 2009.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
 [FR Doc. E9-4491 Filed 2-27-09; 11:15 am]

BILLING CODE 4910-59-P
