[Federal Register Volume 72, Number 33 (Tuesday, February 20, 2007)]
[Rules and Regulations]
[Pages 7741-7749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2823]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 657 and 658
[FHWA Docket No. FHWA-2006-24134]
RIN 2125-AF17
Size and Weight Enforcement and Regulations
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the regulations governing the
enforcement of commercial vehicle size and weight to incorporate
provisions enacted in the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU); the Energy
Policy Act of 2005, and; the Transportation, Treasury, Housing and
Urban Development, the Judiciary, the District of Columbia, and
Independent Agencies Appropriations Act of 2006. This final rule adds
various definitions; corrects obsolete references, definitions, and
footnotes; eliminates redundant provisions; amends numerical route
changes to the National Highway designations; and incorporates
statutorily mandated weight and length limit provisions.
DATES: This final rule is effective March 22, 2007.
FOR FURTHER INFORMATION CONTACT: Mr. William Mahorney, Office of
Freight Management and Operations, (202) 366-6817, or Mr. Raymond
Cuprill, Office of the Chief Counsel (202) 366-0791, 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
Internet users may access this document, the notice of proposed
rulemaking (NPRM), and all comments received by the U.S. DOT Docket by
using the universal resource locator (URL) http://dms.dot.gov. It is
available 24 hours each day, 365 days each year. Electronic submission
and retrieval help and guidelines are available under the help section
of the Web site.
An electronic copy of this document may also be downloaded by
accessing the Office of the Federal Register's home page at: http://www.archives.gov or the Government Printing Office's Web page at http://www.gpoaccess.gov/nara.
Background
The Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144),
the Energy Policy Act of 2005 (Pub. L. 109-58, 119 Stat. 544), and the
Transportation, Treasury, Housing and Urban Development, the Judiciary,
the District of Columbia, and Independent Agencies Appropriations Act
of 2006 (Pub. L. 109-115, 119 Stat. 2396) enacted size and weight
provisions concerning auxiliary power units, custom harvesters, over-
the-road buses, and drive-away saddlemount vehicle combinations.
Additionally, the transfer of motor carrier safety functions to the
Federal Motor Carrier Safety Administration (FMCSA) established by the
Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159,
113 Stat. 1748) affected the internal organizational structure of the
FHWA. Although the responsibility for commercial motor vehicle size and
weight limitation remained in the FHWA, the references in the
regulations to the old FHWA's Office of Motor Carriers (OMC) and its
officials are obsolete. This action updates these references to reflect
the changes in the agency's organizational structure.
Discussion of Comments Received to the Notice of Proposed Rulemaking
(NPRM)
On May 1, 2006, the FHWA published an NPRM in the Federal Register
at 71 FR 25516 to provide an opportunity for public comment on the
proposed changes to 23 CFR Parts 657 and 658. In response to the NPRM,
the FHWA received 39 comments. Commenters included 8 State enforcement
agencies, 9 industry associations, 4 members of Congress, 14
individuals, a union (multiple members), a law firm representing a
trucking company, one intercity bus company, and an association of
State transportation officials. The FHWA considered each of these
comments in adopting this final rule. The changes made in response to
those comments are identified and addressed under the appropriate
sections below.
Section-by-Section Discussion of the Proposals
Part 657
Section 657.1 Purpose
Michigan DOT (MDOT) expressed concerns about using the terms
``Federal-aid Interstate, Federal-aid primary, Federal-aid Secondary,
or Federal-aid Urban Systems,'' which are
[[Page 7742]]
no longer used, to describe the size and weight enforcement program,
and suggested using the term ``National Highway System'' in their
place.
FHWA Response: MDOT is correct that the terms identified are no
longer generally used. However, to ensure the clarity and applicability
of section 657.1, we chose to retain the terms because they are still
used in 23 U.S.C. 141(a), and thus in 23 CFR 657.3, to define the
extent of each State's enforcement obligation. We believe that using
the term National Highway System, which did not exist on October 1,
1991, is not used in 23 U.S.C. 141, and is no longer identical to the
highways systems listed in proposed section 657.1, would generate
substantial confusion.
Part 658
Section 658.5 Definitions
Commercial Motor Vehicle
The FHWA proposed to clarify that recreational vehicle movements
that include transportation to or from the manufacturer for customer
delivery, sale, or display purposes are not covered by the definition
of commercial motor vehicle for the purposes of these regulations. Five
commenters, including Former Congressman Bud Shuster, the National RV
Dealers Association, the National Automobile Dealers Association
(NADA), the Ohio State Police, and the Illinois DOT, expressed support
for the proposal to exclude recreational vehicles even when operated
for a commercial purpose. Two commenters suggested that the section
should be clarified to include recreational vehicle dealers as well as
manufacturers.
The NADA and the Texas DOT raised concerns regarding what
constitutes a recreational vehicle. Texas DOT asked whether travel
trailers, and companies who transport them, were to be excluded as
well. Additionally, the NADA suggested that FHWA include a definition
of recreational vehicle, and the Ohio State Police requested a 3-year
grace period for States to comply with any new definition.
FHWA Response: The FHWA believes that the same rationale applies
equally to recreational vehicle dealers and manufacturers. We are
therefore including dealers as well as manufacturers in this provision.
Further, it is our intent to include motorized vehicles operating under
their own power used only for camping or other recreational activities
in this provision. However, we do not intend to exclude all third party
commercial entities that transport recreational vehicles from the width
regulations. For example, a company that transports recreational
vehicles via tow-bars or on a flat-bed on behalf of a dealer would not
be exempt because the recreational vehicle, in this instance, becomes
freight when not being operated by its own power. This would also apply
equally to travel trailers, which do not travel under their own power.
We do not believe that a grace period is necessary to comply with this
rulemaking action because the change simply involves excluding certain
vehicles from coverage by the width regulations, and relieves the State
agencies of the burden of enforcing these regulations against these
vehicles.
Non-Divisible Load or Vehicle
The NPRM proposed to expand the definition of non-divisible load to
include vehicles loaded with salt, sand, chemicals or a combination of
these materials, to be used in spreading the materials on any winter
roads, and when operating as emergency response vehicles. Four
commenters expressed support for this proposal, citing the need for
additional flexibility during poor weather conditions. The American
Trucking Associations (ATA) opposed modifying the definition of non-
divisible loads to include ``military vehicle transporting marked
military equipment or materiel.'' Further, the ATA suggested that all
emergency response vehicles should be eligible for classification as
non-divisible loads. The American Association of State Highway
Transportation Officials (AASHTO) also recommended that the FHWA work
with AASHTO to develop a proposed exception to the current non-
divisible load requirement that would allow, but not require, a State
to issue a permit to an overweight vehicle certified to be carrying an
urgently needed disaster relief load during a declared emergency. The
MDOT, while supporting the proposal, asked whether a permit would be
required as a result of this determination.
FHWA Response: The FHWA believes that the limiting factors for the
specific vehicles mentioned in the NPRM are adequate to ensure that
they are used only during an emergency. Since the proposal would allow
these vehicles to be considered non-divisible loads, no permit would be
necessary.
The suggestions to create a more expansive definition to
accommodate additional non-divisible loads during declared emergencies
are beyond the scope of this rulemaking and therefore will not be
addressed at this time. The ATA's opposition to the inclusion of
``military vehicles transporting marked military equipment or
materiel'' in the definition of non-divisible loads is also outside the
scope of this rulemaking. Such military vehicles were the subject of a
previous rulemaking action, which is now finalized.
Drive-Away Saddlemount Combination
The FHWA proposed to amend 23 CFR 658.13(e)(1)(iii) to extend to 97
feet the length limit on drive-away saddlemount combinations that are
specifically designed to tow up to three trucks or truck tractors, each
connected by a saddle to the frame or fifth wheel of the forward
vehicle of the truck or truck tractor in front of it. This provision
generated 22 comments. The comments focused on the wording of section
4141 of SAFETEA-LU, specifically whether or not the language was
intended to include all saddlemount combinations in the new 97-foot
limit, or only those that include a fullmount. The question arose
because of the title of newly created 49 U.S.C. 31111(a)(4), ``Drive-
away saddlemount with fullmount vehicle transporter combination.''
Section 4141 of SAFETEA-LU defined this term as ``a vehicle combination
designed and specifically used to tow up to 3 trucks or truck tractors,
each connected by a saddle to the frame or fifth wheel of the forward
vehicle of the truck or truck tractor in front of it.'' The definition
does not refer to a fullmount in the vehicle combination.
Several commenters expressed the view that the statutory language
should be interpreted to include only saddlemounts with fullmount.
Congressman David G. Reichert, AASHTO, and the law firm of Schwerin
Campbell Barnard LLP believe that the congressional language shows
clear intent to limit the application of the law to saddlemount
combinations ``with fullmount.'' In support of this position, several
commenters expressed concerns about the safety of this configuration.
Congressman Reichert noted that the ``fullmount saddlemount vehicle,
had no wheels on the ground, which tends to make the entire vehicle
combination more stable.'' This view was also shared by Schwerin
Campbell Barnard LLP, on behalf of General Teamsters Local 174, a
Seattle-based affiliate of the International Brotherhood of Teamsters.
Additionally, AASHTO stated, ``the legislated change in the rule
governing saddlemount vehicles has raised serious concerns among some
State enforcement officials concerning possible safety and
infrastructure issues.'' The California Department of Transportation
asked about the scope of the legislation, specifically whether the new
length
[[Page 7743]]
regulations would apply on service access routes. Additionally, FHWA
received 20 general comments from individual Local 174 Teamster
members, all expressing various safety concerns with regard to FHWA's
interpretation and the proposed regulatory language.
Other commenters took the view that the language included, or was
intended to include, all saddlemount combinations, with or without
fullmount. In a July 18, 2006, letter to Maria Cino, Acting Secretary
of the Department of Transportation, Congressman Don Young, Chairman of
the House Transportation and Infrastructure Committee, stated that the
NPRM language ``accurately reflects the Congressional intent of section
4141.'' Congressman Young indicated that as Chairman of this committee,
he was directly involved in the development of this language during the
three years leading up to passage of SAFETEA-LU. He further states
that: ``It was our intention that the term `drive-away saddlemount
vehicle transporter combination' would include all saddlemount
combinations, with or without fullmount.'' Three other members of
Congress also submitted letters stating their involvement in the
development of the language, and their support for the language as
proposed in the NPRM.
The Automobile Carriers Conference (ACC) supported the proposed
regulatory language and noted that the safety concerns expressed by
other commenters were unfounded. The ACC refers to a study prepared by
the University of Michigan Transportation Research Institute (UMTRI)
[``Consideration of an Increase in the Overall Length of Triple
Saddlemount Driveaway Combinations'' (January 2006)]:
Extensive studies have been performed that prove the safety of
these combinations. Combinations up to 97 feet have a proven track
record for complying with brake stopping distances as prescribed in
FMCSR 393.52. According to the University of Michigan Transportation
Research Institute, rollover threshold is virtually unaffected when
increasing the length of a saddlemount combination from 75 feet.
UMTRI goes on to state that the extended length saddlemount
combination shows better rearward amplification than a corresponding
75 foot combination. UMTRI concludes that one could expect that the
extended length saddlemount combination would exhibit improved
handling, on the order of 23% reduction in rearward amplification,
relative to a corresponding 75 foot combination.
Further, ACC states that ``[s]ince the enactment of SAFETEA-LU,
actual operational experience in the running [of] saddlemount
combinations at [a] length up to 97 feet in the United States and parts
of Canada have had no adverse impact on safety.'' On behalf of JHT
Holding, Holland and Knight agreed, noting ``that after 107 million
miles of saddlemount operations since the enactment of SAFETEA-LU,
driveaway saddlemount combinations continue to experience a crash rate
that is significantly less than the national average for large truck
crashes in the United States.''
FHWA Response: The FHWA believes that the use of the words ``with
fullmount'' in the section heading and in the term defined in the
section is not dispositive of the matter. The FHWA believes that it is
important to examine the entire language of the provision, and in
particular the statutory definition of the term itself, which are both
necessary to make a reasonable interpretation of the congressional
intent behind this provision. The FHWA believes that restricting this
provision to saddlemounts with fullmount would ignore the express
statutory definition used by the legislators, which is indicative of an
intent to make the provisions of this section applicable to all
saddlemount combinations. The definition contains no reference as to
whether the saddlemount combination must contain a fullmount vehicle,
which in effect makes the definition, and therefore the provision,
applicable to saddlemounts that contain a fullmount as well as those
that do not. The fact that the defined term contains the words ``with
fullmount'' is not sufficient to override the definition itself, which
makes no such limitations. This conclusion is supported by the letter
from Congressman Young, Chairman of the House Transportation and
Infrastructure Committee, who indicates that he was involved in the
development of the language in question, as well as letters from
Congressmen Paul Ryan, Michael Burgess, and Kenny Marchant.
In view of the above, the FHWA maintains that its reading of the
statute is reasonable, and is retaining in this final rule the language
proposed in the NPRM, which prohibits the States from enforcing an
overall length limit of more or less than 97 feet on driveaway
saddlemount vehicle combinations with up to 3 towed units, with or
without fullmount.
Definition of Over-the-Road Buses
The FHWA proposed to incorporate into 23 CFR 658.5 a previously
established definition of ``over-the-road'' buses found in 42 U.S.C.
12181(5).
The American Bus Association and Greyhound Lines, Inc. stated that
the NPRM's definition of ``over-the-road buses'' was accurate and
needed nothing further. However, these entities suggested that the FHWA
should clarify that the definition of a ``covered State'' includes any
State that enforced an axle weight limit described in the NPRM at any
time described in the legislation. Both commenters suggested using the
term ``in'' as opposed to ``during'' in the proposed language in
section 658.17(k) in order to clarify the statute and regulation.
FHWA Response: We agree. Section 115 of the Transportation,
Treasury, Housing and Urban Development, the Judiciary, the District of
Columbia, and Independent Agencies Appropriations Act of 2006 (119
Stat. 2408) used the term ``in,'' as opposed to ``during,'' and is
therefore correct. We also agree with the assertion that the proposed
definition of ``covered States'' does include all States that enforced
such a limit at any time during the specified period.
Section 658.13 Length
As discussed above, the FHWA is amending the specialized equipment
provision in section 658.13(e)(1)(iii) to incorporate the statutory
length limit that is now applicable to drive-away saddlemount vehicle
transporter combinations. Additionally, the FHWA is amending the
definition to clarify that such combinations must comply with all
applicable Federal Motor Carrier Safety Regulations, not just the
provisions contained in 49 CFR Part 393.71.
Section 658.15 Width
The NPRM proposed to amend 23 CFR 658.5 to eliminate any Federal
role in regulating the width of recreational vehicles while operating
under their own power as commercial motor vehicles. As discussed above,
the FHWA is clarifying that recreational vehicle movements that include
transportation under their own power to or from the manufacturer for
customer delivery, sale, or display purposes are not covered by the
definition of commercial motor vehicle. As such, we proposed to change
paragraph (c), to exempt recreational vehicles operating under their
own power from width limitations. The FHWA received no comments to this
proposal, and will retain the language proposed in the NPRM.
[[Page 7744]]
Section 658.17 Weight
Over-the-Road Buses
The NPRM proposed to extend the temporary exemption granted by
Congress for over-the-road buses until October 1, 2009, and to change
the regulations to reflect the new, 24,000 lb. axle weight mandated by
Congress (Sec. 115, Pub. L. 109-115, 119 Stat. at 2408). Several States
provided comments and questions regarding the applicability of the
proposed regulations. The Texas Department of Public Safety and the
California DOT asked several questions regarding the proposed language,
the relationship of the exemption listed in section 1309 of SAFEATEA-
LU, and the language contained in the Transportation, Treasury, Housing
and Urban Development, the Judiciary, the District of Columbia, and
Independent Agencies Appropriations Act of 2006. Specifically, the
commenters asked whether either provision was mandatory for States, and
whether the 24,000 lb. provision applied to the steering axle of a
motorcoach.
Auxiliary Power Units
Comments relating to the idle reduction systems or auxiliary power
units (APU) focused on three general areas: whether the APU itself was
limited to 400 lbs., how the regulation should be enforced, and whether
the States must allow the 400 lb. tolerance contained in the statute.
Several commenters pointed out that the language proposed by FHWA
would limit the weight of the auxiliary power unit to 400 lbs., which
they believed to be inconsistent with the legislative language. They
believe instead that the 400 lbs. limit related to the additional
weight of the vehicle, not the APU itself.
Several State and industry groups expressed concern or asked how a
State would enforce the 400 lb. limit with regard to axle, tandem,
gross weight, and the bridge formula. How would a State determine load
distribution? What documentation or proof would or should be necessary
for compliance? What constitutes proof that a unit is ``fully
functional at all times?'' Additional concerns were raised with regard
to the possibility of fraudulent certifications and APU look-alike
devices that might allow additional freight in violation of the rule.
The ATA stated that the NPRM was inconsistent with congressional
intent by allowing States the option of allowing either a gross weight
limit, an axle weight limit exemption, or both. The ATA felt that ``the
regulation should make it clear that all States must allow the
additional weight on gross, vehicle, axle and bridge formula limits.
The regulation should also clarify that the additional authorized
weight may be inclusive of or in addition to existing state weight
enforcement tolerances.''
The ATA, while agreeing with the weight certification requirement,
also expressed concern that the proposed rule included fuel weight in
the calculation of the APU's weight. The Owner-Operators Independent
Drivers Association (OOIDA) urged the FHWA to be flexible in this area,
suggesting that an acceptable certification would include a certificate
from the manufacturer, other business records, certification by the
weight of individual APU components (to allow for units that are self-
manufactured), or a certified scale ticket representing vehicle weight
before and after the unit is installed.
Commenters also expressed concern regarding the requirement that
the APU be ``fully functional at all times,'' stating that they were
unsure how such a requirement can be certified or documented, and
requested that FHWA clarify this issue. The OOIDA suggested that the
operator be able to satisfy this requirement verbally. The OOIDA and
the Truck Manufacturers Association also believe that the certification
requirement verifying the APU's weight will eliminate most, if not all,
enforcement concerns since the driver would gain no freight advantage
while transporting a non-functioning unit. This would especially be
true if the unit is temporarily broken. Further, OOIDA requested that
the rule make it clear that a driver would be required to make the
necessary certifications only in response to the finding that the
vehicle is overweight. Several respondents also requested that FHWA
provide a list of manufacturers of these products, and provide guidance
to the States regarding enforcement.
Finally, several commenters asked whether the States are required
to adopt the 400 lb. exemption.
FHWA Response: Over-the-Road Buses--Section 1309 of SAFETEA-LU is
not preemptive. Its purpose is to allow the States to waive the axle
weight limits on both transit and over-the-road buses at their
discretion until October 1, 2009. The language in Sec. 115 of the
Transportation, Treasury, Housing and Urban Development, the Judiciary,
the District of Columbia, and Independent Agencies Appropriations Act
of 2006 (119 Stat. 2396, at 2408) is preemptive in nature, but applies
only to those States defined as ``covered States.'' If a State meets
the definition of a covered State, it must adhere to the new provision
on all individual axle weights, including the steering axle. It is
important to note, however, that this legislation and the supporting
regulation do not impair a State's ability to weigh over-the-road
buses. Further, the regulatory language only prohibits the citing of
single axle weight violations, not violations of the gross, tandem, or
other weight limits while on the Interstate system.
Auxiliary Power Units
Section 756 of the Energy Policy Act of 2005 amended 23 U.S.C.
127(a) to allow an increase in the Federal weight limits by up to 400
lbs. to account for APUs installed in any heavy-duty vehicle (119 Stat.
594, at 829). The intent of this provision is to promote the use of
technologies that reduce fuel consumption and emissions that result
from engine idling.
We agree with several of the commenters and have adjusted the
regulatory language accordingly. FHWA has revised the language to
eliminate the weight requirement for the APU itself, while allowing up
to a total of 400 lbs. in axle, tandem, gross, or bridge weight formula
(which is an axle weight calculation), or the weight of the APU unit,
whichever is less. For example, a vehicle equipped with an APU that has
a certified weight of 750 lbs. would be allowed the maximum of 400 lbs.
additional weight. However, a vehicle with an APU that has a certified
weight of 300 pounds would be allowed a 300 lb. exemption. This is
consistent with the statutory language.
The FHWA understands the concerns of enforcement agencies and users
about the weight certification requirements. The FHWA believes that the
certification of the APU's weight must be in writing, but can include a
wide range of options, including a manufacturer's certification
(sticker, specification plate, etc), certified scale tickets listing
the vehicle's weight both before and after the unit's installation, a
component parts list with listed weights of each component if the unit
is manufactured by the owner or operator, etc., so long as it
accurately reflects the weight of the unit and is available to roadside
enforcement officers. As for the inclusion of fuel in the overall
weight calculation of the unit, we have concluded upon further
consideration that the empty weight of the APU is more appropriate,
given that many of these units will utilize the truck tractor's fuel
supply.
The statutory requirement for a ``demonstration or certification''
that the unit is ``fully functional at all times'' is more problematic.
We believe that a manual demonstration, or a certification letter which
clearly states the unit's
[[Page 7745]]
operational characteristics if the unit is temporarily broken down,
should provide sufficient proof. FHWA agrees with several commenters
that there will be little or no incentive for a driver to install and
transport a non-working APU. We also believe that there would be little
need to require a driver to provide proof of weight and operability
unless the vehicle is over the weight thresholds specified in the
regulations. Additionally, we agree that the increased weight must be
allowed in addition to any enforcement tolerances that are currently
authorized under Federal law.
It is important to note that section 756 of the Energy Policy Act
of 2005 which amended 23 U.S.C. 127 does not preempt State enforcement
of its weight limits on all highways; rather, it prevents the FHWA from
imposing funding sanctions if a State authorizes the 400 lb. weight
limit on their Interstate system. Therefore, it remains for each State
to decide whether it will allow the increased weight limits for APUs.
However, a State must adhere to the provisions of section 658.17 if it
chooses to allow the additional weight.
Section 658.23 LCV Freeze; Cargo-carrying Unit Freeze
The NPRM proposed to replace obsolete references to the Office of
Motor Carriers with references to the FHWA. In drafting the replacement
regulatory text in the NPRM, the FHWA inadvertently changed the word
``must'' to ``may'' in the last sentence of subsection (c). We did not
propose, nor did we intend, to change the substantive requirements
contained in this subsection. The FHWA did not receive any comments in
response to the proposals contained in this section. Therefore we have
corrected the regulatory text to reflect the current regulatory
requirements and to update the obsolete references to the Office of
Motor Carriers.
Appendix A to 23 CFR Part 658--National Network--Federally-Designated
Routes
The FHWA proposed to change route designations within the State of
New Mexico on certain portions of the National Network. The State of
New Mexico submitted a comment clarifying the changes to route number
designations for routes on its portion of the National Network. These
changes are numerical only and will not add or remove routes from the
original network. Additional changes include: changing NM 491 to U.S.
491; changing U.S. 516 to NM 516, and; deleting U.S. 666 in its
entirety. The FHWA is therefore amending Appendix A to reflect these
route number changes.
Appendix B to 23 CFR Part 658--Grandfathered Semitrailer Lengths
One commenter pointed out that Appendix B refers to 23 CFR
658.13(h), which no longer exists, and suggests making the appropriate
modifications to correct the error.
FHWA Response: As stated in the NPRM, the FHWA is aware that
section 658.13 was reorganized in a previous rulemaking action, at 67
FR 15110, March 29, 2002, and that the provisions that formerly
appeared in paragraph (h) are now found in paragraph (g). Therefore,
the FHWA is adopting the language proposed in the NPRM to correct this
error.
Miscellaneous Comments
General Comments on FHWA's Size and Weight Program
Several individuals submitted general comments on the FHWA's size
and weight program. Among the comments were suggestions to eliminate
double and triple vehicle combinations on the highways, restricting the
length of landscape trucks and trailers, mandating pavement standards
to provide for 10 ton-per-axle weight limits in all weather conditions,
allowing 90,000 lbs. gross weight on six axle tractor-semitrailers, and
generally revising section 658.15 and section 658.17 to accommodate
larger, heavier, hybrid vehicles that are currently not allowed on the
Interstates or National Network.
FHWA Response: These comments address issues that were not raised
in the NPRM, and are therefore outside the scope of this rulemaking.
Additionally, the vehicle weight limits for Interstate highways are
statutory (23 U.S.C. 127), as are the vehicle width and length limits
on the National Network (49 U.S.C. 31111-31115). None of them can be
changed by FHWA.
FHWA Authority
One commenter questions the FHWA's legal authority to amend the
regulations as proposed in the NPRM. The commenter indicates several of
the proposals, including those that propose to replace references in
the regulations to the old Office of Motor Carriers with references to
the FHWA, are illegal because section 101(a) of the Motor Carrier
Safety Improvement Act of 1999 (Pub. L. 106-159, 113 Stat. 1748)
(MCSIA) requires the Federal Motor Carrier Safety Administrator to
carry out any duties and powers related to motor carriers or motor
carrier safety. He indicates that after the creation of FMCSA, various
driver and vehicle safety inspection functions were transferred from
FHWA's Office of Motor Carriers to FMCSA in a final rule published on
October 19, 1999 (64 FR 56270), but that the final rule failed to
transfer, and maintained within the FHWA in violation of the statute,
the enforcement of commercial motor vehicle size and weight laws and
regulations affecting the safe design of trucks.
The FHWA disagrees with the commenter's interpretation of the
provisions of the MCSIA and its alleged effect on FHWA's authority over
the commercial vehicle size and weight program. The provision in
question is now codified at 49 U.S.C. 113(f)(1). This provision, which
describes the powers and duties of the Federal Motor Carrier
Administrator, reads as follows:
``(f) Powers and Duties.--The Administrator shall carry out--(1)
duties and powers related to motor carriers or motor carrier safety
vested in the Secretary by chapters 5, 51, 55, 57, 59, 133 through
149, 311, 313, 315, and 317 and by section 18 of the Noise Control
Act of 1972 (42 U.S.C. 4917; 86 Stat. 1249-1250); except as
otherwise delegated by the Secretary to any agency of the Department
of Transportation other than the Federal Highway Administration, as
of October 8, 1999 * * *'' (emphasis added)
For purposes of this discussion, it is clear that the FMCSA's
Administrator is delegated by statute the duties and powers related to
motor carriers and motor carrier safety vested in the Secretary by,
among other provisions, chapter 311 of title 49, United States Code.
However, we note that this statutory delegation is limited to duties
and powers ``related to motor carriers and motor carrier safety'' in
that chapter. This clearly refers to the motor carrier and motor
carrier safety functions that were delegated to the FMCSA in the 1999
final rule cited by the commenter (64 FR 56270), which are very
different from the commercial motor vehicle size and weight
limitations, duties, and functions, which are in part located in 49
U.S.C. Chapter 311, and which remained delegated to the FHWA. Duties
and powers under other subchapters of chapter 311 which are related to
motor carrier and motor carrier safety functions such as the Motor
Carrier Safety Assistance Program and State grants, and the Federal
Motor Carrier Safety Regulations that affect motor carriers and
drivers, were delegated to the FMCSA by the 1999 final rule. Duties and
powers relating to the commercial motor vehicle size and weight
limitations, which are
[[Page 7746]]
established by law, not only in Chapter 311 of title 49 United States
Code, but also in Chapter 1 of title 23 U.S.C. (sections 127 and 141),
remained delegated to the FHWA Administrator (see 71 FR 30828).
The commercial motor vehicle size and weight program is different
from the motor carrier and motor carrier safety duties carried out by
the FMCSA, and serve to establish limitations which the States are
required to implement and enforce in order to protect and preserve the
infrastructure and overall highway safety in highways that have
received Federal assistance for construction and maintenance. It is not
a regulation of motor carriers or their drivers, although these
limitations affect the dimensions of the vehicles operated by these
entities. The commercial motor vehicle size and weight program,
including its regulation of the State's authority over vehicle
limitations, is directly related to the Federal-aid highway program and
Federal-aid highway funding. It does not involve the type of motor
carrier or motor carrier safety oversight that Congress intended to be
delegated to the FMCSA in the MCSIA provisions. As a result, it has
appropriately remained delegated to the FHWA, as part of this agency's
duties to administer the Federal-aid highway program and highway
safety.
Finally, we note that Congress is fully aware that the commercial
vehicle size and weight program remained in FHWA. As part of recent
major highway program reauthorization acts and related oversight,
congressional committees have requested and received information on
FHWA's implementation of changes to the size and weight program. The
Department would surely have received direction from Congress during
all the years since the enactment of the MCSIA if Congress had intended
this program to be delegated to an agency other than the FHWA.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 and would
not be significant within the meaning of the U.S. Department of
Transportation's regulatory policies and procedures. This rule will not
adversely affect, in a material way, any sector of the economy. This
action changes out-dated references to offices within the FHWA and
updates the current regulations to reflect changes made by the Congress
in SAFETEA-LU and other recent legislation. Additionally, this action
would add various definitions; correct obsolete references,
definitions, and footnotes; eliminate redundant provisions; amend
numerical route changes to the National Highway designations; and
incorporate a statutorily mandated weight limit provision. There will
not be any additional costs incurred by any affected group as a result
of this rule. In addition, these changes will not interfere with any
action taken or planned by another agency and will not materially alter
the budgetary impact of any entitlements, grants, user fees or loan
programs. Consequently, a regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), we have evaluated the effects of this action on
small entities and have determined that the action would not have a
significant economic impact on a substantial number of small entities.
The FHWA certifies that this 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, and the FHWA has
preliminarily determined that this proposed action would not warrant
the preparation of a federalism assessment. Any federalism implications
arising from this rule are attributable to SAFETEA-LU sections 4112 and
4141. The FHWA has determined that this proposed action would not
affect the States' ability to discharge traditional State government
functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program 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),
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 rule
does not contain collection of information requirements for the
purposes of the PRA.
Unfunded Mandates Reform Act of 1995
This rule would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This rule will not result in the expenditure by State, local and tribal
governments, in the aggregate, or by the private sector, of $128.1
million or more in any one year. (2 U.S.C. 1532). Further, in
compliance with the Unfunded Mandates Reform Act of 1995, the FHWA will
evaluate any regulatory action that might be proposed in subsequent
stages of the proceeding to assess the effects on State, local, and
tribal governments and the private sector.
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)
The FHWA has analyzed this proposed action under Executive Order
13045, Protection of Children from Environmental Health Risks and
Safety Risks. The FHWA certifies that this action would not cause any
environmental risk to health or safety that may disproportionately
affect children.
Executive Order 12630 (Taking of Private Property)
The FHWA has analyzed this rule under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights. The FHWA does not anticipate that this action would
affect a taking of private property or otherwise have taking
implications under Executive Order 12630.
National Environmental Policy Act
The FHWA has analyzed this action for the purposes of the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347) 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 the
[[Page 7747]]
action would not have substantial direct effects on one or more Indian
tribes; would not impose substantial compliance costs on 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 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 a significant
regulatory action under Executive Order 12866 and is not likely to have
a significant adverse effect on the supply, distribution or use of
energy. Therefore, a Statement of Energy Effects is not required.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory section 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 Parts 657 and 658
Grants Program--transportation, Highways and roads, Motor carriers.
Issued on: February 13, 2007.
J. Richard Capka,
Federal Highway Administrator.
0
In consideration of the foregoing, the FHWA amends Chapter I of title
23, Code of Federal Regulations, by revising Parts 657 and 658,
respectively, as set forth below:
PART 657--CERTIFICATION OF SIZE AND WEIGHT ENFORCEMENT
0
1. Revise the authority citation for part 657 to read as follows:
Authority: 23 U.S.C. 127, 141 and 315; 49 U.S.C. 31111, 31113
and 31114; sec. 1023, Pub. L. 102-240, 105 Stat. 1914; and 49 CFR
1.48(b)(19), (b)(23), (c)(1) and (c)(19).
0
2. Revise Sec. 657.1 to read as follows:
Sec. 657.1 Purpose.
To prescribe requirements for administering a program of vehicle
size and weight enforcement on the Interstate System, and those routes
which, prior to October 1, 1991, were designated as part of the
Federal-aid primary, Federal-aid secondary, or Federal-aid urban
systems, including the required annual certification by the State.
0
3. Revise Sec. 657.3 to read as follows:
Sec. 657.3 Definitions.
Unless otherwise specified in this part, the definitions in 23
U.S.C. 101(a) are applicable to this part. As used in this part:
Enforcing or Enforcement means all actions by the State to obtain
compliance with size and weight requirements by all vehicles operating
on the Interstate System and those roads which, prior to October 1,
1991, were designated as part of the Federal-aid Primary, Federal-aid
Secondary, or Federal-aid Urban Systems.
Urbanized area means an area with a population of 50,000 or more.
0
4. Revise the first sentence of paragraph (a) and revise paragraph (b)
of Sec. 657.11 to read as follows:
Sec. 657.11 Evaluation of operations.
(a) The State shall submit its enforcement plan or annual update to
the FHWA Division Office by July 1 of each year. * * *
(b) The FHWA shall review the State's operation under the accepted
plan on a continuing basis and shall prepare an evaluation report
annually. The State will be advised of the results of the evaluation
and of any needed changes in the plan itself or in its implementation.
Copies of the evaluation reports and subsequent modifications resulting
from the evaluation shall be forwarded to the FHWA's Office of
Operations.
0
5. Revise paragraphs (b), (e), and (f)(3)(iii) of Sec. 657.15 to read
as follows:
Sec. 657.15 Certification content.
* * * * *
(b) A statement by the Governor of the State, or an official
designated by the Governor, that all State size and weight limits are
being enforced on the Interstate System and those routes which, prior
to October 1, 1991, were designated as part of the Federal-aid Primary,
Urban, and Secondary Systems, and that the State is enforcing and
complying with the provisions of 23 U.S.C. 127(d) and 49 U.S.C. 31112.
Urbanized areas not subject to State jurisdiction shall be identified.
The statement shall include an analysis of enforcement efforts in such
areas.
* * * * *
(e) A copy of any State law or regulation pertaining to vehicle
sizes and weights adopted since the State's last certification and an
analysis of the changes made.
* * * * *
(f) * * *
(3) * * *
(iii) Permits. The number of permits issued for overweight loads
shall be reported. The reported numbers shall specify permits for
divisible and nondivisible loads and whether issued on a trip or annual
basis.
0
6. Revise Sec. 657.17 to read as follows:
Sec. 657.17 Certification submittal.
(a) The Governor, or an official designated by the Governor, shall
submit the certification to the FHWA division office prior to January 1
of each year.
(b) The FHWA division office shall forward the original
certification to the FHWA's Office of Operations and one copy to the
Office of Chief Counsel. Copies of appropriate evaluations and/or
comments shall accompany any transmittal.
0
7. Revise Sec. 657.19 to read as follows:
Sec. 657.19 Effect of failure to certify or to enforce State laws
adequately.
If a State fails to certify as required by this regulation or if
the Secretary determines that a State is not adequately enforcing all
State laws respecting maximum vehicle sizes and weights on the
Interstate System and those routes which, prior to October 1, 1991,
were designated as part of the Federal-aid primary, Federal-aid
secondary or Federal-aid urban systems, notwithstanding the State's
certification, the Federal-aid funds for the National Highway System
apportioned to the State for the next fiscal year shall be reduced by
an amount equal to 10 percent of the amount which would otherwise be
apportioned to the State under 23 U.S.C. 104, and/or by the amount
required pursuant to 23 U.S.C. 127.
PART 658--TRUCK SIZE AND WEIGHT, ROUTE DESIGNATIONS--LENGTH, WIDTH
AND WEIGHT LIMITATIONS
0
8. The authority citation for part 658 is revised to read as follows:
Authority: 23 U.S.C. 127 and 315; 49 U.S.C. 31111, 31112, and
31114; sec. 347, Pub. L. 108-7, 117 Stat. 419; sec, 756, Pub. L.
109-58, 119 Stat. 829; sec. 1309, Pub. L. 109-59, 119 Stat. 1219;
sec. 115, Pub. L. 109-115, 119 Stat. 2408; 49 CFR 1.48(b)(19) and
(c)(19).
0
9. Amend Sec. 658.5 by revising the definitions of ``commercial motor
vehicle'' and paragraph (2) of the definition of ``nondivisible load or
vehicle''; and adding definitions of ``drive-away saddlemount vehicle
transporter combinations'' and ``over-the-road bus'' to read as
follows:
[[Page 7748]]
Sec. 658.5 Definitions.
* * * * *
Commercial motor vehicle. For purposes of this regulation, a motor
vehicle designed or regularly used to carry freight, merchandise, or
more than ten passengers, whether loaded or empty, including buses, but
not including vehicles used for vanpools, or recreational vehicles
operating under their own power.
Drive-away saddlemount vehicle transporter combination. The term
drive-away saddlemount vehicle transporter combination means a vehicle
combination designed and specifically used to tow up to 3 trucks or
truck tractors, each connected by a saddle to the frame or fifth wheel
of the forward vehicle of the truck tractor in front of it. Such
combinations may include up to one fullmount.
* * * * *
Nondivisible load or vehicle.
(1) * * *
(2) A State may treat as nondivisible loads or vehicles: emergency
response vehicles, including those loaded with salt, sand, chemicals or
a combination thereof, with or without a plow or blade attached in
front, and being used for the purpose of spreading the material on
highways that are or may become slick or icy; casks designed for the
transport of spent nuclear materials; and military vehicles
transporting marked military equipment or materiel.
Over-the-road bus. The term over-the-road bus means a bus
characterized by an elevated passenger deck located over a baggage
compartment, and typically operating on the Interstate System or roads
previously designated as making up the Federal-aid Primary System.
* * * * *
0
10. Amend Sec. 658.13 by revising paragraph (e)(1)(iii) and adding
paragraph (h) to read as follows:
Sec. 658.13 Length.
* * * * *
(e) * * *
(1) * * *
(iii) Drive-away saddlemount vehicle transporter combinations are
considered to be specialized equipment. No State shall impose an
overall length limit of less or more than 97 feet on such combinations.
This provision applies to drive-away saddlemount combinations with up
to three saddlemounted vehicles. Such combinations may include one
fullmount. Saddlemount combinations must also comply with the
applicable motor carrier safety regulations at 49 CFR parts 390-399.
* * * * *
(h) Truck-tractors, pulling 2 trailers or semitrailers, used to
transport custom harvester equipment during harvest months within the
State of Nebraska may not exceed 81 feet 6 inches.
0
11. Revise paragraph (c) of Sec. 658.15 to read as follows:
Sec. 658.15 Width.
* * * * *
(c) Notwithstanding the provisions of this section or any other
provision of law, a State may grant special use permits to motor
vehicles, including manufactured housing, that exceed 102 inches in
width.
0
12. Revise paragraph (k) and add paragraph (n) of section Sec. 658.17
to read as follows:
Sec. 658.17 Weight.
* * * * *
(k) Any over-the-road bus, or any vehicle which is regularly and
exclusively used as an intrastate public agency transit passenger bus,
is excluded from the axle weight limits in paragraphs (c) through (e)
of this section until October 1, 2009. Any State that has enforced, in
the period beginning October 6, 1992, and ending November 30, 2005, a
single axle weight limitation of 20,000 pounds or greater but less than
24,000 pounds may not enforce a single axle weight limit on these
vehicles of less than 24,000 lbs.
* * * * *
(n) Any vehicle subject to this subpart that utilizes an auxiliary
power or idle reduction technology unit in order to promote reduction
of fuel use and emissions because of engine idling, may be allowed up
to an additional 400 lbs. total in gross, axle, tandem, or bridge
formula weight limits.
(1) To be eligible for this exception, the operator of the vehicle
must be able to prove:
(i) By written certification, the weight of the APU; and
(ii) By demonstration or certification, that the idle reduction
technology is fully functional at all times.
(2) Certification of the weight of the APU must be available to law
enforcement officers if the vehicle is found in violation of applicable
weight laws. The additional weight allowed cannot exceed 400 lbs. or
the weight certified, whichever is less.
0
13. Revise paragraphs (c) and (e) of Sec. 658.23 to read as follows:
Sec. 658.23 LCV freeze; cargo-carrying unit freeze.
* * * * *
(c) For specific safety purposes and road construction, a State may
make minor adjustments of a temporary and emergency nature to route
designation and vehicle operating restrictions applicable to
combinations subject to 23 U.S.C. 127(d) and 49 U.S.C. 31112 and in
effect on June 1, 1991 (July 6, 1991, for Alaska). Minor adjustments
which last 30 days or less may be made without notifying the FHWA.
Minor adjustments which exceed 30 days require approval of the FHWA.
When such adjustments are needed, a State must submit to the FHWA, by
the end of the 30th day, a written description of the emergency, the
date on which it began, and the date on which it is expected to
conclude. If the adjustment involves alternate route designations, the
State shall describe the new route on which vehicles otherwise subject
to the freeze imposed by 23 U.S.C. 127(d) and 49 U.S.C. 31112 are
allowed to operate. To the extent possible, the geometric and pavement
design characteristics of the alternate route should be equivalent to
those of the highway section which is temporarily unavailable. If the
adjustment involves vehicle operating restrictions, the State shall
list the restrictions that have been removed or modified. If the
adjustment is approved, the FHWA will publish the notice of adjustment,
with an expiration date, in the Federal Register. Requests for
extension of time beyond the originally established conclusion date
shall be subject to the same approval and publications process as the
original request. If upon consultation with the FHWA a decision is
reached that minor adjustments made by a State are not legitimately
attributable to road or bridge construction or safety, the FHWA will
inform the State, and the original conditions of the freeze must be
reimposed immediately. Failure to do so may subject the State to a
penalty pursuant to 23 U.S.C. 141.
* * * * *
(e) States further restricting or prohibiting the operation of
vehicles subject to 23 U.S.C. 127(d) and 49 U.S.C. 31112 after June 1,
1991, shall notify the FHWA within 30 days after the restriction is
effective. The FHWA will publish the restriction in the Federal
Register as an amendment to appendix C to this part. Failure to provide
such notification may subject the State to a penalty pursuant to 23
U.S.C. 141.
* * * * *
Appendix A to Section 658--National Network--Federally Designated
Routes
0
14. Amend appendix A to part 658 as follows:
0
A. By removing the words ``[The federally-designated routes on the
National Network consist of the Interstate System, except as noted, and
[[Page 7749]]
the following additional Federal-aid Primary highways.]'' and adding,
in their place, the words ``[The federally-designated routes on the
National Network consist of the Interstate System, except as noted, and
the following additional highways.]'' in each place that they appear;
0
B. By removing the explanatory phrase ``No additional routes have been
federally designated; STAA-dimensioned commercial vehicles may legally
operate on all Federal-aid Primary highways under State law.'' for the
States of Arkansas, Colorado, Indiana, Kansas, Louisiana, Mississippi,
Montana, Nebraska, Nevada, Ohio, South Dakota, Texas, Utah, Washington
and Wyoming, and add, in its place, the words, ``No additional routes
have been federally designated; under State law STAA-dimensioned
commercial vehicles may legally operate on all highways which, prior to
June 1, 1991, were designated as Federal-aid primary highways.'';
0
C. By revising the entries for ``New Mexico'' to read as follows:
New Mexico
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
US 56................................. I-25 Springer................... OK State Line.
US 60................................. AZ State Line................... I-25 Socorro.
US 62................................. US 285 Carlsbad................. Tx State Line.
US 64................................. AZ State Line................... NM 516 Farmington.
US 70................................. AZ State Line................... I-10 Lordsburg.
US 70................................. I-10 Las Cruces................. U.S. 54 Tularosa.
US 70................................. US 285 Roswell.................. U.S. 84 Clovis.
NM 80................................. AZ State Line................... I-10 Road Forks.
US 84................................. Tx State Line Clovis............ CO State Line.
US 87................................. US 56 Clayton................... Tx State Line.
US 160................................ Az State Line (Four Corners).... CO State Line.
US 285................................ Tx State Line s. of Carlsbad.... CO State Line.
US 491................................ 1-40 Gallup..................... CO State Line.
NM 516................................ U.S. 64 Farmington.............. U.S. 550 Aztec.
US 550................................ NM 516 Aztec.................... CO State Line.
----------------------------------------------------------------------------------------------------------------
Appendix B To Part 658--Grandfathered Semitrailer Lengths
0
15. Amend appendix B to Part 658 in footnotes 1, 2, and 3 by removing
the reference ``23 CFR 658.13(h)'' and by adding in its place ``23 CFR
658.13(g)'' each place it appears.
[FR Doc. E7-2823 Filed 2-16-07; 8:45 am]
BILLING CODE 4910-22-P