The American Trucking Associations Inc (ATA), pursuant to 49 CFR Section 389.37, seeks reconsideration of the Federal Highway Administration final rule relating to repair of trailer rear underride guards (published Sept 1, 1999, in the Federal Register at 64 FR 47703).
ATA requests that subpart 393.86(a)(6) of the final rule, 49 CFR Section 393.86(a)(6), Certification and Labeling Requirements for Rear Impact Protection Guards be rescinded. This requires that all guards placed on new trailers since Jan 26, 1998, must be either "permanently marked or labeled." ATA says this places an unreasonable burden on motor carriers because:
* Some labels are rendered illegible, and others separate from the guard.
* Replacement parts for guards do not come with labels, and manufacturers will not provide replacement labels.
ATA says the rule is unnecessary, and it may be impossible for a motor carrier to comply. This problem with the rate was first raised with FHWA in supplemental comments filed Dec 30, 1998, by ATA and the Truck Trailer Manufacturers Association (TTMA). Those comments explained that trailer manufacturers would not provide a label for a replaced or repaired horizontal member part. Thus a motor carrier seeking to comply will not have a certification label.
FMVSS 224 (49 CFR 571.224) requires labels to be mounted directly behind the tires on the horizontal member of the rear underride guard. On some equipment, this subjects them to either a direct blast of tire-generated road debris or constant rubbing by the mudflap.
In other instances, labels are coming off. This is not just happening on trailers that have been in service for some time; it also occurs on newly delivered vehicles. When peeling occurs, it makes a motor carrier responsible for failures beyond their control. The manufacturer designs the labels, and carriers have no way of knowing whether or for how long they will last.
Most damage to the rear underride guard is confined to the horizontal member. To correct this damage, it is the only component of the guard that needs replacement. However, the manufacturers will not provide the required label. Manufacturers contend that they cannot certify strength of the complete guard if they are only supplying a piece of it. The labeling requirement, because of the carrier's inability to obtain a label for the horizontal member, means the motor carrier must go to the expense and labor of replacing the entire guard.
Elimination of the labeling requirement for the rear underride guard is supported by FHWA's statement of philosophy in the preamble to the final rule. Also involved are the certification plates placed on the front of the trailer per 49 CFR 567. FHWA has stated that "penalizing motor carriers for minor damage that would not adversely affect the performance of the rear impact guard serves no practical purpose and discourages states from taking such action." Therefore, inspections of equipment in service are to be visual with allowance given for damage that obviously will not impact guard performance (64 FR 47705).
Given that the trailer and all of its components, including the underride guard, are certified on the label required by 49 CFR 567, a separate label on the guard is unnecessary. A guard meets the standards for roadside inspection if it:
* Is in apparent good shape.
* Has the right dimensions [as spelled out in the new rule (393.86 (a)(1) through (a)(5)].
* Has obviously not been altered.
* Is on a trailer carrying its own certification label.
Enforcers can use the new Section 393.86 to check for proper dimensions and visually check for strength-altering damage. Inspectors need not rely on a label, especially one that is unlikely to be there or becomes unintelligible shortly after being placed on the part. An inspection that goes beyond this would require crash-testing, whether or not a label is attached.
ATA says it is unreasonable to require motor carriers to obtain labels or parts with certification labels from trailer dealers or manufacturers. The trailer certification label serves to indicate that the guard, as installed, met all requirements in FMVSS 223 and 224. Section 393.86 spells out the dimensions for the guard (new or replacement). Therefore, an additional certification label on the underride guard itself is unnecessary. Even if the original guard is replaced completely, the dimensions spelled out in the rule will serve to ensure that the replacement has proper characteristics.
