‘Notice and Comment Unnecessary’- Lighting/Marking Standard Now Federal Law
On July 6, 2012, when President Obama signed into law the Highway Funding Bill, small manufacturers of farm equipment may not have thought about it containing federal lighting and marking regulations for their equipment. Lobbyists, however, were well aware of text buried in a 676-page conference committee report, a provision that ultimately landed on page 371 of the law.
That’s where we found Subtitle F–
Improved Daytime and Nighttime-Visibility of Agricultural Equipment
With a congressionally mandated deadline of July 6, 2014, the Secretary of Transportation was to, after consultation with representatives of the American Society of Agricultural and Biological Engineers (ASABE) and other federal agencies, promulgate a rule to improve the daytime and nighttime visibility of agricultural equipment that may be operated on a public road.
On June 22, 2016—just days short of missing the mandated deadline by two years—the U.S. Department of Transportation (DOT) published its rule governing lighting and marking for agricultural equipment.
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ASABE, which develops and publishes the very standards cited by the statute and in the federal register, did not see an advance draft, nor did interested trade associations.
The law gives the Secretary of Transportation authority to set “minimum standards” and forbids any rule that would require the retrofitting of agricultural equipment that was manufactured before the date on which the lighting and marking standards become enforceable. While the just published rule may supersede some state standards, it does not, in any way, keep states from enacting laws which exceed the “minimum standards” cited in the federally imposed rule.
Our Association and our Standards Awareness Council addressed the current ASABE lighting and marking standard during our 2013 Fall Convention and surveyed members regarding compliance costs following that meeting. There is no indication that the DOT took compliance costs for small manufacturers into account before issuing the federal rule.
| At least once every five years, after promulgating the rule, NHTSA is required to review it and update it consistent with the most recent revision of ASABE Standard 279. |
While the National Highway Transportation Safety Administration (NHTSA) is authorized to regulate motor vehicles and motor vehicle equipment, in the past, the agency did not have specific authority to regulate the manufacture of most agricultural equipment and was reportedly still questioning its legal authority regarding federal regulation of lighting and marking of ag equipment as recently as last month.
The Administration gave no indication as to how the legal concerns were resolved or what prompted the decision to release the rule without advance notice.
The safety agency has stated that vehicles equipped with tracks, agricultural equipment, and other vehicles incapable of highway travel are not motor vehicles. The agency has also determined that certain vehicles designed and sold solely for off-road use are not motor vehicles, even if they may be capable of highway travel.
About ASABE: Since its inception in 1907, ASABE’s involvement in the industry has evolved to include the creation and development of its own voluntary standards that have become widely accepted. Many states use ASABE standards as the basis for their own regulations.
ASABE has a comprehensive standards development process that gives its Standards Committee members, as well as the general membership population, ample involvement and input in the journey from proposal to final adopted standard.
ASABE Executive Director Darrin Drollinger notes that ASABE standards serve the public interest with an open and voluntary development process described in Section V of the rule.
“The Society maintains a neutral and advisory role with regard to governmental regulatory actions,” says Drollinger. “Nevertheless, we appreciate that the U.S. DOT recognizes the long-standing efforts of the ASABE Lighting and Marking committee to improve the safety of agricultural equipment on public roads.”
ASABE’s standard creation is a 12-step process from start to finish that is supervised by ASABE’s Standards Development and Oversight Committees. After making it through the proposal phase, a draft standard is created that is voted on by all members of the Standards Development Committee. In order for it to be approved, at least 50 percent of the total Standards Development Committee must vote, and it must receive 75 percent of those votes in favor.