Federal Highway Administration (FHWA), DOT.
Supplemental notice of proposed rulemaking (SNPRM); reopening of docket comment period.
This document reopens the comment period on this docket and delays the issuance of a final rule to require the use of the FHWA specification for Dedicated Short Range Communication (DSRC) for Commercial Vehicle Operations (CVO); a provisional standard for Intelligent Transportation Systems (ITS) commercial vehicle projects using highway trust funds. Based on the comments received, the date of the final rule will be determined by the completion of the testing program to evaluate products designed to meet the provisional standard. Also, this document responds to all the substantive comments received to date on this docket.
This docket will remain open until the FHWA publishes another rulemaking document when testing is complete.
Mail or hand deliver comments to the docket number that appears in the heading of this document to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at http://dmses.dot.gov/submit. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or you may print the acknowledgment page Start Printed Page 77535that appears after submitting comments electronically.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Mr. William S. Jones, ITS Joint Program Office (JPO), (202) 366-2128, e-mail address <email@example.com>; or Mr. Wilbert Baccus, Office of the Chief Counsel, (HCC-32) (202) 366-0780, e-mail address <firstname.lastname@example.org>, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:30 a.m. to 4 p.m., e.t., Monday through Friday, except Federal holidays.End Further Info End Preamble Start Supplemental Information
Electronic Access and Filing
You may submit or retrieve comments online through the Document Management System (DMS) at: http://dmses.dot.gov/submit. Acceptable formats include: MS Word (versions 95 to 97), MS Word for Mac (versions 6 to 8), Rich Text File (RTF), American Standard Code Information Interchange (ASCII) (TXT), Portable Document Format (PDF), and WordPerfect (versions 7 to 8). The DMS 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 using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's web page at: http://www.access.gpo.gov/nara.
The notice of proposed rulemaking (NPRM) published at 64 FR 73674 on December 30, 1999, under Docket No. FHWA 99-5844, contains a detailed discussion of the events and background that has led to this rulemaking process. Only a brief summary of this background is presented in this Supplemental NPRM.
In section 5206 of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, at 457 (23 U.S.C. 502 Note), the Congress requires the Department to “ensure the national interoperability” of ITS services through standards. To carry out this mandate, the Congress stated that the Secretary could use the services of existing standards-setting organizations, as appropriate. The statutory provisions also provide that use of approved standards shall be established as a prerequisite for use of highway trust funds on relevant ITS projects. Further, the Congress authorized the Secretary to issue “provisional standards” when the normal consensus standard development process was unsuccessful in reaching agreement on a standard.
There is a clear need for interoperability in at least two applications of DSRC technology within the ITS program as follows:
1. Interstate trucks that participate in the Commercial Vehicle electronic screening programs require national interoperability. This allows participating vehicles to be electronically cleared, if they are safe and legal, without stopping at State ports of entry or weigh/inspection stations.
2. All vehicles, including passenger cars and trucks, in a common multitoll environment within a single State or multistate metropolitan area, require regional interoperability.
This rulemaking only addresses the national interoperability requirement for commercial vehicle applications of DSRC technology. For the CVO program to be successful, it is essential that these vehicles be able to travel from State to State, and within a State, using DSRC technology for processing at automated inspection stations and to be able to bypass State ports of entry if they meet the criteria for safety, and possess the appropriate credentials. The only way to achieve this fundamental objective is to have DSRC standards that all States utilize for their ITS CVO implementations. Thus, this application clearly falls within the TEA-21 definition of standards “critical to national interoperability.” The critical standards list defined by the ITS Joint Program Office (JPO), in response to the TEA-21, can be accessed on the JPO web site: http://www.its.dot.gov.
The FHWA entered into a rulemaking process for CVO because the established standards process was unable to produce a standard that would ensure national interoperability. The current set of DSRC standards that have been adopted by the American Society of Testing and Materials (ASTM), ASTM PS 111-98 and ASTM PS 111-xxx, allow multiple DSRC technologies to exist, thus promulgating the current interoperability dilemma. The DOT, therefore, defined a provisional standard that incorporated portions of the ASTM standards and the IEEE standard, IEEE P 1455, that was backward compatible with all existing CVO installations. The NPRM required that this new provisional standard be used for all new purchases of DSRC devices for commercial vehicle electronic screening when highway trust funds were used for these purchases after January 1, 2001.
Because of the concerns voiced by the CVO community about proceeding with a rule before equipment designed to the provisional standard has been tested to ensure its technical viability, the FHWA has decided to postpone issuing the final rule until that test program is complete. The subject NPRM stated that the FHWA intended to test the provisional specification. At the time the NPRM was drafted, those tests were to have been completed prior to the effective date of the final rule. Further, the NPRM stated that the intent of the provisional specification was to enable backward compatibility. Backward compatibility means that no existing roadside or vehicle equipment for electronic screening would be required to be modified or replaced. To ensure this compatibility, the manufacturers were involved in developing the provisional specification, and the FHWA is going to test produce built with the provisional specification for both functional capability and backward compatibility.
Although there were other comments to the NPRM, these were clearly the most crucial in their potential impact on the CVO community. Having addressed these concerns, the FHWA believes it is necessary to continue the rulemaking process to achieve the objective of national interoperability in the CVO program at a time when the tested technologies can support the use of the provisional standard.
In the subsequent discussion, the substantive comments will be addressed.
Comments to the NPRM
There were 24 comments received by the FHWA concerning the proposed rule. Comments were received from a joint submission of HELP Inc. and NORPASS Inc.; the HELP/NORPASS comments were supported by State Trucking Associations from California, Arkansas, Arizona, Montana, and Nevada; and by Combined Transport Inc., Montana Department of Transportation, NATSCO Inc., Delphi Automotive systems, Market Transport, Ltd., Watkins Shepard Trucking Inc., Wyoming Highway Patrol, Lockheed Martin IMS, and the Tennessee Department of Safety. This group of 15 respondents will be referred to as HELP in subsequent discussions. Additional comments were received from Amtech Systems, Mark IV IVHS, Inc., Peace Start Printed Page 77536Bridge Authority, TransCore, the American Trucking Association (ATA), E-Z Pass IntgerAgency Group, Illinois Department of Transportation, Washington State Department of Transportation, and the Wisconsin Department of Transportation.
Response to Comments on the NPRM
Comment: The ATA, TransCore, and HELP questioned the need for DOT to do a rulemaking because of the widespread use of the existing device throughout the CVO community.
FHWA Response: It is the opinion of the FHWA that the current, essentially de facto, “standard” is a result of the ITS funding that has spurred the deployment of CVO technology and the insistence of the FHWA on the use of that device. However, CVO may be deployed using other non-Federal funding sources where the FHWA will not have the opportunity to enforce the de facto standard. The Department is aware of States that would prefer to use another device that is more compatible with other DSRC applications in their region, such as electronic tolls. Therefore, the only way to ensure the DOT is doing everything possible to achieve national interoperability is to insist that if Federal funds are employed in the deployment, that a standard will be used. It is recognized that States may still circumvent the regulation by not using highway trust funds for CVO projects. However, it is incumbent upon the Department to do everything practical to ensure national interoperability.
Comment: HELP asserted that the proposed rule would have the Federal government pick winners and losers in the industry.
FHWA Response: The Department does not agree that the proposed rule would pick “winners and losers” in the DSRC industry. There are currently two suppliers of equipment for the CVO application. These two suppliers were chosen by both HELP and Norpass, not the Federal government. Both of these suppliers have indicated a willingness to build products to the proposed FHWA specification. The operators of CVO facilities would have the same competitive environment that currently exists.
Comment: HELP and Washington State DOT were concerned that the proposed specification would require significant modifications to their existing equipment and potentially cause interruptions in existing service.
FHWA Response: The existing manufacturers have indicated that the new transponders designed to the FHWA specification would be backward compatible with all existing roadside equipment. Therefore, this regulation would neither require modifications nor cause disruptions in service. The FHWA specification provides, but does not require, additional functionality in the roadside equipment for CVO application. It also does not require truckers to change their existing transponders. Therefore, there should be no interrruption in the daily operations of existing CVO installations. The FHWA testing program will validate this capability.
Comment: HELP commented that the proposed rule would be in violation of California law.
FHWA Response: The proposed regulation does not apply to the electronic toll collection application of DSRC, and therefore is not in conflict with California law.
Comment: HELP, and ATA, and Washington DOT believed this rule would be in conflict with electronic toll activities and would not provide interoperability for toll systems.
FHWA Response: The proposed rule does not apply to the electronic toll application of DSRC. It is recognized that this rule will not solve the interoperability problem within the toll industry as was clearly stated in the NPRM.
Comment: HELP and Washington DOT felt that there was not adequate time provided for public discussion of the proposed rule.
FHWA Response: This SNPRM reopens the docket and will allow for comments to be submitted over an extended time frame. However, the Department engaged in public discussions for almost two years on the subject of DSRC interoperability and the potential avenues to achieving that goal. The idea of the “sandwich” specification, the popular name for the FHWA specification, for DSRC was discussed at a number of forums involving both the toll and CVO communities beginning in mid-1998, almost a year before entering the formal rulemaking process. The Department does not agree that there has been inadequate time for the community to respond. However, the decision to postpone the final rule until testing is complete should satisfy this concern.
Comment: HELP, the E-Z Pass Interagency Group, TransCore, Mark IV, Washington DOT, and Wisconsin DOT were concerned that equipment built to the FHWA specification had not been tested.
FHWA Response: The Department recognizes that the FHWA specification has not yet been built and tested. The NPRM specifically stated the intent of the FHWA to conduct a test program to validate the efficacy of the specification and the backward compatibility feature prior to its mandatory use, and deferred application to procurement of new equipment after January 2001. It is now clear to the FHWA that the proposed test schedule is unlikely to be met, and that testing must be done before the device is deployed. Thus, FHWA is publishing this SNPRM to delay issuance of the final rule until after the test program is complete.
Comment: The ATA and HELP did not believe that there were other applications for DSRC and, therefore, the incorporation of the IEEE application layer standard into the FHWA provisional standard was unnecessary.
FHWA Response: The recent announcement of one of the manufacturers to build a new transponder that incorporates the FHWA specification, would signify to the Department that the supplier industry believes that there are multiple applications for the device beyond CVO. Further, the manufacturers that collaborated on the development of the specification agreed to the inclusion of the IEEE application layer standard in the belief that other applications were probable.
Comment: The ATA, HELP, the E-Z Pass Interagency Group, and Washington DOT were concerned that the proposed rule would adversely impact the development and deployment of DSRC devices at 5.9GHz.
FHWA Response: The FHWA does not believe that this regulation will have any impact on the development of equipment at the new 5.9GHz frequency. Manufacturers have publicly indicated that the two are unrelated and are moving forward to develop the standard for 5.9GHz and plan to build a product at that frequency to serve markets other than CVO. Further, the Department does not anticipate requiring the use of 5.9GHz for the CVO application in the foreseeable future, unless the CVO community would advocate such a transition.
Comment: The Amtech argues for a regional approach to interoperability since most of the nation's trucks are regional carriers. This would mean that each region could pick its own locally utilized transponder configuration, presumably a toll application, for use in its CVO application. This means that the majority of trucks in the nation, the regional carriers, would require only one transponder, and the interstate trucking fleets would require at least two transponders. The supposition is that the converse is true if FHWA Start Printed Page 77537promulgates this rule, i.e., that all regional carriers would require two transponders.
FHWA Response: If promulgated, this rule would not require that all intrastate trucks have two transponders. The proposed rule does not prohibit States from installing roadside equipment at CVO sites that accommodates the regional toll standard for use by the intrastate carriers. However, this would be in addition to their existing equipment used for electronic screening which will be compatible with the new proposed FHWA specification. This option would be cheaper than equipping all intrastate vehicles with two transponders. However, the cost of that additional roadside equipment for toll collection would be borne by the public sector rather than the trucking industry. Presumably, the States would derive a public benefit from this approach, which would allow a large percentage of the commercial vehicles to be served within a local region. This approach would mean that the interstate trucks would be relegated to one transponder to serve all the CVO functions, and additional transponders as needed for operations with the toll agencies. The point is that there are alternatives to having multiple transponders while still retaining the objective of national interoperability for interstate trucking.
Comment: The ATA and TransCore were concerned that the FHWA regulation will stifle innovation in the industry and “dooms state governments to perennial obsolescence.”
FHWA Response: The Department recognizes that the pace of technological innovation in the electronics industry is much faster than the traditional aspects of highway design that the FHWA normally regulates. Therefore, it is incumbent upon the Department to monitor the advances in technology that might affect the CVO industry, and be prepared to alter its position on the provisional standard as demanded by the changes in technology and community use.
Comment: The ATA and Amtech were concerned that the FHWA proposed rule would require multiple transponders in every truck.
FHWA Response: The current state of the toll industry, and for the foreseeable future, will require multiple transponders in vehicles to enable interstate travel using electronic toll collection. Further, the existing CVO transponders are not compatible with any of the toll applications. Therefore, the proposed rule is not intended, nor does it alter the current situation. This rule only addresses national interoperability for CVO functions.
The recent announcement by a manufacturer to build a transponder that is compatible with all three current DSRC protocols in use in the United States, could be argued to be the result of the Department's insistence on interoperability and its readiness to issue regulations to promote that goal. It is clear that this was not the only motivating factor, but it was an influencing factor. The practical result is that the ATA's goal of “one truck one tag” is closer to reality.
Comment: The ATA was concerned that the Department was ignoring congressional direction in Senate Report No. 106-55 directing the testing of passive technology.
FHWA Response: The FHWA has responded to the Senate Report No. 106-55. The FHWA has a program to test passive technology for its compatibility with current CVO DSRC equipment, and will do likewise when the proposed FHWA specification is tested.
Based on an evaluation of the comments, the Department has decided to proceed with a proposal that would require use of the FHWA specification for CVO applications, but delay issuance of a final rule until there are results from the planned testing of the new FHWA specification. Assuming that the tests prove the efficacy of the provisional specification, then the FHWA intends to proceed with the issuance of a final rule that would require the use of the FHWA specification for all CVO electronic screening projects.
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 or significant within the meaning of Department of Transportation regulatory policies and procedures. It is anticipated that the economic impact of this rulemaking will be minimal, therefore, a full regulatory evaluation is not required. The implementation of this standard will not alter the functionality of the DSRC roadside or in-vehicle equipment. The recurring cost of these devices should be virtually the same as paid for existing equipment. We do not anticipate any significant economic impact of the regulation proposed in this rulemaking document. Nevertheless, the FHWA solicits comments, information, and data on this issue.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA has evaluated the effects of this proposal on small entities. Based on that evaluation, the FHWA hereby certifies that this proposal will not have a significant economic impact on a substantial number of small entities. Any impact to small entities would likely be a positive one, due to the resulting ability of these entities to compete in the open market for ITS system integration work and other engineering services and to develop and market DSRC standards conforming devices useful in CVO deployment. Large corporations, through sales of their proprietary products and proprietary interfaces have previously dominated this market. Previously, large corporations that owned the proprietary interface designs were the only organizations able to manufacture, install, integrate, and service equipment with the proprietary interfaces. Although the large corporations may experience a small loss of engineering services business, this will be more than compensated for by the increased marketability of their DSRC standards profile-conforming products in the growing national ITS industry.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose a Federal mandate resulting in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1531 et. seq.).
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and it has been determined this action does not have a substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States. Nothing in this document directly preempts any State law or regulation.
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, Start Printed Page 77538eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyized this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This proposed rule will not effect a taking of private property or othewise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 and amendments thereto regarding intergovernmental consultation on Federal programs and activities apply to this program. Those regulations stipulate that Federal agencies shall provide opportunities for consultation by element officials of State and local governments that would provide non-Federal funds for, or that would be directly affected by, proposed Federal assistance or direct Federal development. The regulations further state that the Federal agencies must communicate with the appropriate State and local officials as early in the program planning cycle as is reasonable feasible to explain specific plans and actions.
Since members of the ASTM, the IEEE. and the DSRC industry participated in establishing the need for the DSRC standards, in defining the requirements for the DSRC standards, and in development and approval of the DSRC standards, it is clear that requirements of the intergovernmental review regulations have been satisified. In addition, the FHWA and ITS America have made information about the standards program and the standards widely and publicly available. Furthermore, publication of this SNPRM further emphasizes the agency's efforts to coordinate with State and local governments by providing another opportunity to review and comment on our proposal.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) [44 U.S.C. 3501-3520], Federal agencies must determine whether requirements contained in proposed rulemaking are subject to the information collection provisions of the PRA. The FHWA has determined that this proposed regulation does not constitute an information collection within the scope or meaning of the PRA. Implementation of this proposal would impose no paperwork burden on the States or private entities. The proposal merely sets forth the DSRC interoperability standards for devices that collect the vehicle data that is already being transmitted either electronically, visually, or otherwise. As for the States assuring that vendors of the devices comply with these standards, the FHWA is not imposing any formal certification process on them. The States may accomplish assurances of vendor compliance as part of their usual and customary processes that they would adopt to implement the requirements of any Federal regulation.
United States International Trade Policy
The agency has analyzed the impact of this rulemaking on United States trade in accordance with Executive Order 12661 and finds no significant detrimental impacts on United States international trade policy.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has determined that this action would not have any effect on the quality of the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.Start List of Subjects
List of Subjects in 23 CFR Part 945End List of Subjects Start Signature
Issued on: December 4, 2000.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 00-31642 Filed 12-11-00; 8:45 am]
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