Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of intent to deny petitions for rulemaking; request for comments.
The FMCSA announces its intent to deny petitions for rulemaking from the Manufactured Housing Institute (MHI) and Multinational Legal Services, PLLC (Multinational) concerning overloading of tires used for the transportation of manufactured homes. Currently, these tires may be loaded up to 18 percent over the load rating marked on the sidewall of the tires, or in the absence of such a marking, 18 percent above the load rating specified in publications of certain organizations specializing in tires. The termination date of the rule allowing 18-percent overloading of these tires was originally set for November 20, 2000, but was delayed until December 31, 2001, to provide the agency time to complete its review of the MHI's petition to allow 18 percent overloading on a permanent basis. The agency has now completed its review of the MHI's data and believes that there should be no further delay in the termination date. The agency has also completed its analysis of Multinational's petition to rescind the final rule which delayed the termination date until December 31, 2001, and determined on a preliminary basis that the petition should be denied. Denial of both petitions would result in transporters of manufactured homes being prohibited from operating such units on overloaded tires on or after January 1, 2002.
We must receive your comments by May 21, 2001. We will consider comments received after the comment closing date to the extent practicable.
You can mail, fax, hand deliver or electronically submit written comments to the U.S. Department of Transportation, Docket Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, FAX (202) 493-2251, on-line at http://dmses.dot.gov/submit. You must include the docket number that appears in the heading of this document in your comment. You can examine and copy all comments at the above address from 9 a.m. to 5 p.m., e.t. Monday through Friday, except Federal holidays. If you want us to notify you that we received you comments, please include a self-addressed, stamped envelope or postcard.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Mr. Larry W. Minor, Office of Bus and Truck Standards and Operations, MC-PSV, (202) 366-4009, Federal Motor Carrier Safety Administration, 400 Seventh Start Printed Page 20346Street, SW., Washington, D.C. 20590-0001.End Further Info End Preamble Start Supplemental Information
On February 18, 1998, the Federal Highway Administration (FHWA) and the Department of Housing and Urban Development (HUD) jointly published a final rule amending, respectively, the Federal Motor Carrier Safety Regulations (FMCSRs) and an interpretation of the Manufactured Home Construction and Safety Standards (see 63 FR 8330). The FHWA and HUD actions reduced the amount of tire overloading allowed (at the time up to 50 percent above the tire manufacturer's load rating) on tires used to transport manufactured homes. As a result of the rulemaking, the maximum amount of loading on a manufactured home tire was reduced so that it cannot exceed the tire manufacturer's load rating by more than 18 percent. Manufactured homes transported on tires overloaded by 9 percent or more may not be operated at speeds exceeding 80 kilometers per hour (km/hr)(50 mph). The final rule allowed 18-percent overloading for a two-year period. The two-year period began on November 16, 1998, the effective date of the final rule, and was scheduled to end on November 20, 2000.
In publishing the final rule and interpretative bulletin, the agencies indicated there was sufficient data to support the premise that overloading tires may be potentially unsafe. The agencies also indicated that unless both of them were persuaded by the end of the two-year period that 18-percent overloading did not pose a risk to the traveling public, or have an adverse impact on safety or the ability of motor carriers to transport manufactured homes, any overloading of tires beyond their design capacity would be prohibited.
MHI Petition for Rulemaking
On August 7, 2000, the MHI filed a petition for rulemaking with the FMCSA and HUD to initiate a joint rulemaking to amend the agencies' rules concerning manufactured home tires to enable the manufactured home industry to continue to exceed the tire manufacturer's load rating by up to 18 percent, indefinitely. The MHI requested that: (1) The FMCSA amend 49 CFR 393.75(g); and (2) HUD revise Interpretative Bulletin J-1-76 to 24 CFR part 3260. MHI recognized that it would be difficult, if not impossible, for the FMCSA and HUD to act on the petition and, if granted, complete the rulemaking before November 20, 2000. Therefore, the MHI also petitioned the FMCSA and HUD to provide interim regulatory relief from the November 20, 2000, deadline until the agencies acted on the petition for rulemaking. A copy of the MHI's petition for rulemaking and request for an exemption are included in the docket referenced at the top of this document.
The MHI indicated that during the first 18 months of the two-year period for 18-percent overloading, it sponsored studies of the safety risk associated with tire overloading. This work included a study of the movement of manufactured homes under actual operating conditions and a survey of principal manufacturers, transporters and suppliers. The study involved observing and recording the results of 503 shipments of manufactured homes during a 12-month period from June 1999 through June 2000. The MHI believes the results of the study demonstrate that tire performance improved when the industry operated under the 18-percent overloading rule.
The MHI indicated that of the 3,708 tires used on the 503 manufactured home sections transported, there were 81 tire failures (a 2.2 percent tire failure rate). The MHI believes that only a fraction of these failures were attributable, in whole or in part, to the tires being overloaded. Of the 81 tires that failed, 62 (76.5 percent) were used tires, indicating that repeated usage of tires may be more of a factor in the tire failure rate than overloading. The MHI believes the 2.2 percent tire failure rate represents a significant improvement given the estimated eight percent tire failure rate the FHWA and HUD presented in the April 23, 1996, notice of proposed rulemaking (61 FR 18014). None of the 81 tire failures resulted in an accident causing damage to a manufactured home, other property, or personal injury. The 81 tire failures occurred on 61 of the 503 sections transported. The MHI stated:
The dramatic decrease in tire failures attributable, in whole or in part, to tire over-loading beyond tire load ratings and the total absence of any accidents resulting in damage to the manufactured home, other property, or personal injury, based upon a representative sampling of manufactured homes transported throughout the country, demonstrates the lack of any safety risk associated with the permanent removal of the November 20, 2000 “sunset” date for the 118% Rule.
FMCSA and HUD Preliminary Responses to the MHI Petition
On November 21, 2000, the FMCSA published a final rule delaying the termination date of the rule allowing overloading of manufactured home tires (65 FR 70218). The FMCSA indicated that it had met with officials from HUD to discuss the MHI's request. Both agencies believed that MHI's petition and its supporting documentation warranted a thorough review, but because relevant staff were otherwise committed, neither was able to complete such an analysis before November 20, 2000, the termination date established by the 1998 final rule. On November 21, 2000, HUD amended Interpretative Bulletin J-1-76 to remove a paragraph that referenced the November 20, 2000, termination date.
Multinational Petition to Rescind November 21, 2000, Regulatory Actions
On January 16, 2001, Multinational filed a petition with the FMCSA and HUD requesting that the FMCSA and HUD rescind their actions relating to overloading of manufactured home tires. A copy of Multinational's petition is included in the docket referenced at the beginning of this document. Multinational argued that the FMCSA and HUD actions delaying the termination date are contrary to both Federal law and the public interest. Multinational believes that the FMCSA violated 5 U.S.C. 553(b) by publishing the final rule without prior notice and request for public comment. Multinational believes the agencies could have requested public comment when the MHI submitted its preliminary data on July 7, 2000. Multinational argues that the “good cause” exception to the requirement for requesting public comment prior to issuing a final rule should not apply in this case.
In addition, Multinational believes the delay in the termination date was issued in violation of the National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113, 110 Stat. 775) which requires that Federal agencies use standards established by voluntary consensus standards organizations unless the adoption of the voluntary standards would be impractical or inconsistent with law.
Multinational argues that delaying the termination date is contrary to the public interest.
FMCSA Analysis of the Petitions
The FMCSA has reviewed the MHI's and Multinational's petitions and believes that both should be denied.
The MHI's petition requesting that 18 percent overloading be allowed on a permanent basis is not supported by the data submitted. The MHI provided detailed data (on-the-road performance data which included the amount of tire Start Printed Page 20347loading) on 53 shipments of manufactured homes. However, data from industry indicates that in 1999, the manufactured housing industry shipped 122,926 single-section and 225,745 multi-section homes for a total of 582,498 sections transported. Therefore, any inferences made from the data would be based on a sample size of approximately 0.0091 percent [100 × (53/582,498)] of all shipments transported in 1999. The agency believes this sample size is entirely too small to make any valid judgment about the on-the-road performance of tires overloaded by 18 percent.
Although information was collected on 503 shipments of manufactured home sections, individual wheel weights were measured on only 53 of these shipments. The information gathered from the remaining 450 trips is important for looking at the overall tire failure rate but not for examining the percentage of tire failures attributable in whole, or in part, to tire overloading.
Another factor complicating the analysis of tire failures is that both the number of tires overloaded, and the amount of overloading on those tires, varies from trip to trip. Not all manufactured home tires are overloaded by 18 percent on every trip. Because of the variability in the amount of overloading per tire and the number of tires that are typically overloaded on a given shipment, it is extremely difficult to draw inferences on the performance of overloaded tires. This is especially the case when an extremely small sample size is involved.
Despite the inadequacy of the MHI data for some kinds of analysis, one figure is hard to ignore: tire failures occurred on 12 percent of the trips involving sections of manufactured housing (61 of 503). Although the incidence of tire failure seems to have declined since overloading was limited to 18 percent in 1998, the fact that 12 percent of the trips examined by the MHI were still marred by tire failure—for whatever reason—is not reassuring. This is a far higher number than other segments of the motor carrier industry experience. The manufactured housing industry may not have been involved in any recent fatalities or property-damage accidents, but with a tire-failure rate that high one cannot be optimistic about the future. Even if a tire failure does not send the affected combination out of control, tire fragments can cause other vehicles to swerve, perhaps triggering a secondary accident. When units of manufactured housing are stopped for tire replacement, other vehicles will usually slow down to look, increasing the risk of rear-end accidents in the traffic stream. Finally, because drivers typically orient themselves by following other cars or trucks, drivers who are fatigued or distracted sometimes fail to distinguish between moving vehicles and parked vehicles, with disastrous consequences. While the FMCSA cannot identify the exact role of tire overloading in the failure rate experienced by the manufactured housing industry, we have concluded that this rate is too high and that the agency should take what actions it can to lower the rate. We have therefore decided to end the allowance of overloaded tires on manufactured housing.
The FMCSA requests comments on the adequacy of the sample size used by the MHI in its data collection, and on the analysis and interpretation of that data. The agency also requests comments on its own analysis and conclusions.
The FMCSA does not consider its actions to be in violation of the Administrative Procedure Act or the National Technology Transfer and Advancement Act of 1995. Furthermore, our actions were not contrary to the public interest.
The FMCSA was not required to place the information it received from the MHI in the docket until it issued its November 21, 2000, final rule. Doing so earlier would not have served as a request for public comment, or provided information about the agency's evaluation of the petition, or accelerated the agency's analysis of the MHI data. The period from August 7 to November 20, 2000, was not long enough to allow the agency, occupied with a wide variety of prior commitments, to prepare a notice that discussed the issues in meaningful detail, review the public comments submitted, and issue a final decision. Therefore, the agency stands by its previous determination that notice and comment were impracticable.
The FMCSA believes notice and comment were unnecessary because the November 21, 2000, delay in the termination date did not change the substance of 49 CFR 393.75(g). The agency relied on its expertise in transportation safety to delay the termination date until December 31, 2001. The agency is not aware of any accidents (as defined in 49 CFR 390.5) involving manufactured homes prior to the 1998 final rule, or subsequent to the publication of that rule. The agency believes the data presented by the MHI is an acceptable indicator that the overall tire failure rate decreased after tire overloading was reduced from 50 percent to 18 percent. The MHI's estimate of a decrease in the overall tire failure rate justified the conclusion that the level of safety had improved (in terms of reducing the potential for an accident attributable to tire failure) since the publication of the February 18, 1998, final rule. The only uncertainty was whether the level of safety was comparable to, or better than, what would be expected if all overloading of manufactured tires were prohibited. The postponement of the termination date did not increase the safety risks to the traveling public. The actions of the agency were not contrary to public interest.
With regard to the Multinational's other point, neither the National Technology Transfer and Advancement Act of 1995, nor the Office of Management and Budget's Circular No. A-119, which provides executive direction to Federal agencies in implementing the statutory requirements, is applicable to the debate about overloading manufactured home tires. The FMCSA's did not establish a government-unique standard for the design of manufactured home tires, or a government-unique standard concerning the use of such tires. Furthermore, the agency's actions did not ignore a private-sector “consensus standard” as defined in OMB's Circular No. A-119.
The FMCSA has carefully reviewed the Tire and Rim Association, Inc.'s “Year Book” to determine whether the publication could be construed as a consensus standard establishing guidelines that differ from the agency's final rule. The “Year Book” states:
The purposes of the Tire and Rim Association, Inc., include the establishment and promulgation of interchangeability standards for tires, rims and allied parts for the guidance of manufacturers of such products, designers and manufacturers of motor vehicles, aircraft and other wheeled vehicles and equipment, and governmental and other regulatory bodies.
The Tire and Rim Association, Inc., has no responsibility or involvement with respect to the utility or performance of any tire, rim or allied part which may be manufactured in conformity to such standards.
The Tire and Rim Association publication provides information on interchangeability standards for tires and rims—the ability to replace components, parts, or equipment of one manufacturer with those of another, without losing function or suitability. Furthermore, the organization disclaimed all responsibility or involvement with respect to the use or performance of any tire. Therefore, the Tire and Rim Association's “Year Book” Start Printed Page 20348is not a consensus standard applicable to overloaded manufactured home tires. The FMCSA's actions have not undermined or compromised the interchangeability standards of the Tire and Rim Association. The tire overloading rule relates solely to the manner in which motor carriers use manufactured home tires, an issue that association never attempted to address. The FMCSA has not violated the NTTA.
With regard to Multinational's concerns about the public interest, the FMCSA worked with HUD to require the manufactured housing industry to alter its practice of overloading tires by up to 50 percent above the tire manufacturer's load rating. The agencies have reduced the amount of overloading to 18 percent presently, and through the denial of the MHI's petition, transporters of manufactured homes would be prohibited from overloading tires. Transporters of manufactured homes would be required to adhere to the same standards as anyone else subject to the Federal Motor Carrier Safety Regulations. The delay in the termination date does not, in and of itself, change the substance of 49 CFR 393.75(g).
Through this notice the agency is making clear its preliminary intention not to grant the MHI's petition to allow 18 percent overloading on a permanent basis. The agency intends to bring to an end the industry practice of transporting manufactured homes on overloaded tires, albeit approximately 13 months later than originally planned. The agency does not believe the delay in the termination date is contrary to the public interest because the level of safety provided by the November 21, 2000, final rule is no different than the level of safety provided prior to the delay.
Request for Comments
The FMCSA requests comments from all interested parties concerning overloading of tires used in the transportation of manufactured homes. The agency encourages commenters to discuss any of the specific issues mentioned above and any other issues the commenters believe may be relevant. Depending on the comments received, the agency will issue a notice denying the MHI's and Multinational's petitions.Start Signature
Issued on: April 16, 2001.
Julie Anna Cirillo,
Acting Deputy Administrator.
[FR Doc. 01-9867 Filed 4-19-01; 8:45 am]
BILLING CODE 4910-EX-P