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Parts and Accessories Necessary for Safe Operation; Exemption Renewal for Automobile Carriers Conference and Auto Haulers Association of America Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Sue Lawless Date: 21 February 2024 Subjects: American Government  , Safety, Trucking
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[Federal Register Volume 89, Number 35 (Wednesday, February 21, 2024)]
[Notices]
[Pages 13135-13138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03446]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2018-0090]
Parts and Accessories Necessary for Safe Operation; Exemption
Renewal for Automobile Carriers Conference and Auto Haulers Association
of America
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of provisional renewal of exemption; request for
comments.
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SUMMARY: FMCSA announces its decision to provisionally renew an
exemption requested jointly by the Automobile Carriers Conference (ACC)
of the American Trucking Associations and the Auto Haulers Association
of America (AHAA) to relieve motor carriers operating stinger-steered
automobile transporter equipment from the requirement to place warning
flags on projecting loads of new and used motor vehicles. The Federal
Motor Carrier Safety Regulations (FMCSRs) require any commercial motor
vehicle (CMV) transporting a load which extends more than 4 feet beyond
the rear of the vehicle be marked with a single red or orange
fluorescent warning flag at the extreme rear if the projecting load is
2 feet wide or less and two warning flags if the projecting load is
wider than 2 feet.\1\ The exemption is renewed for 5 years, unless
revoked earlier.
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\1\ In their renewal request, the applicants additionally asked
for relief from 49 CFR 393.11, which requires ``lamps or reflective
devices'' to be affixed to the rear of a load that extends more than
4 feet beyond a trailer. Because this is a new request for
exemption, FMCSA is not considering the request with the renewal of
the current exemption. FMCSA will process that request separately.
DATES: This renewed exemption is effective February 15, 2024, through
August 9, 2024, unless revoked earlier. Comments must be received on or
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before March 22, 2024.
ADDRESSES: You may submit comments identified by docket number FMCSA-
2018-0090 using any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2018-0090/document. Follow the online
instructions for submitting comments.
Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Washington, DC 20590-0001.
Hand Delivery or Courier: Dockets Operations, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, West Building,
Ground Floor, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
FOR FURTHER INFORMATION CONTACT: David Sutula, Vehicle and Roadside
Operations Division, Office of Carrier, Driver, and Vehicle Safety,
FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; (202) 366-
9209; MCPSV@dot.gov. If you have questions on viewing or submitting
material to the docket, call Dockets Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
notice (FMCSA-2018-0090), indicate the specific section of this
document to which the comment applies, and provide a reason for
suggestions or recommendations. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so the Agency
[[Page 13136]]
can contact you if it has questions regarding your submission.
To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2018-0090/document, click on this notice, click
``Comment,'' and type your comment into the text box on the following
screen. Choose whether you are submitting your comment as an individual
or on behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing.
If you submit comments by mail and would like to know that they
reached the facility, please enclose a stamped, self-addressed postcard
or envelope.
FMCSA will consider all comments and material received during the
comment period. Comments received after the comment closing date will
be filed in the public docket and will be considered to the extent
practicable.
Confidential Business Information (CBI)
CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure.
If your comments responsive to the notice contain commercial or
financial information that is customarily treated as private, that you
actually treat as private, and that is relevant or responsive to the
notice, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission that
constitutes CBI as ``PROPIN'' to indicate it contains proprietary
information. FMCSA will treat such marked submissions as confidential
under the Freedom of Information Act, and they will not be placed in
the public docket of the notice. Submissions containing CBI should be
sent to Brian Dahlin, Chief, Regulatory Evaluation Division, Office of
Policy, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 or
via email at brian.g.dahlin@dot.gov. At this time, you need not send a
duplicate hardcopy of your electronic CBI submissions to FMCSA
headquarters. Any comments FMCSA receives not specifically designated
as CBI will be placed in the public docket for this notice.
B. Viewing Comments and Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2018-0090/document and
choose the document to review. To view comments, click this notice,
then click ``Browse Comments.'' If you do not have access to the
internet, you may view the docket online by visiting Dockets Operations
on the ground floor of the DOT West Building, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET, Monday
through Friday, except Federal holidays. To be sure someone is there to
help you, please call (202) 366-9317 or (202) 366-9826 before visiting
Dockets Operations.
C. Privacy
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments
from the public to better inform its exemption process. DOT posts these
comments, including any personal information the commenter provides, to
www.regulations.gov as described in the system of records notice DOT/
ALL 14 (Federal Docket Management System (FDMS)), which can be reviewed
at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices. The comments are posted without edit and are
searchable by the name of the submitter.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b)(2) and 49
CFR 381.300(b) to renew an exemption from the FMCSRs for subsequent 5-
year periods if it finds that such exemption would likely maintain a
level of safety that is equivalent to, or greater than, the level that
would be achieved by the current regulation (49 CFR 381.305(a)). ACC
and AHAA have requested a 5-year extension of the current exemption.
III. Background
Current Regulatory Requirements
FMCSA requires in Sec. 393.87 any CMV transporting a load which
extends beyond the sides by more than 4 inches, or more than 4 feet
beyond the rear, to have the extremities of the load marked with red or
orange fluorescent warning flags. Each warning flag must be at least 18
inches square. There must be a single flag at the extreme rear if the
projecting load is 2 feet wide or less, and two warning flags are
required if the projecting load is wider than 2 feet. The flags must be
located to indicate the maximum width of loads which extend beyond the
sides and/or rear of the vehicle.
Original Exemption
In its original exemption application, ACC requested an exemption
from Sec. 393.87 for motor carriers operating stinger-steered
automobile transporter equipment. A stinger-steered transporter has a
fifth wheel hitch located on a drop frame behind and below the rear-
most axle of the power unit. It was noted that stinger-steered
automobile transporters have been allowed to have a rear vehicular
overhang of at least 6 feet since December 2015 (49 U.S.C.
31111(b)(1)(G)). Previously, a minimum 4-foot rear overhang was allowed
for all automobile transporters.
ACC contended that adhering to flag requirements while transporting
new motor vehicles posed a challenge to the vehicle industry. Vehicle
manufacturers prohibit affixing flags or any items to their vehicles
due to the potential for scratches and damage. Auto transporters tried
to comply with the intent of Sec. 393.87 by attaching flags to the
rear of their trailers. However, this effort did not adhere to the
letter of the regulation and resulted in carriers receiving numerous
citations for being in violation of the flag requirements.
ACC emphasized that motor vehicles are the only commodity to be
transported that must adhere to the requirements of Federal Motor
Vehicle Safety Standard (FMVSS) No. 108, ``Lamps, reflective devices,
and associated equipment,'' which has mandated since 1968 the use of
side-facing reflex reflectors,\2\ amber reflectors at the front, and
red reflectors at the rear of vehicles. ACC believed that these
reflective devices, combined with the required lighting and conspicuity
treatments on the trailers, adequately fulfill the intention of Sec.
393.87 by notifying other motorists when a load extends more than 4
feet beyond the rear of the trailer. Additionally, ACC noted that FMVSS
No. 108 imposes specific performance criteria for these required
reflectors, while no such performance requirements exist for the flags
mandated by Sec. 393.87.
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\2\ FMVSS No. 108 defines reflex reflectors as devices used on
vehicles to give an indication to approaching drivers using
reflected light from the lamps of the approaching vehicle (49 CFR
571.108).
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ACC pointed out that the population of automobile transporter
vehicles is relatively small, comprising around 16,000 units, with
stinger-steered vehicles being a subset of that population. ACC cited
statistics showing that, following the enactment of the FAST Act which
allowed 6 feet of overhang on the rear of the transporter, the
frequency of rear-end collisions with auto transporters has been
minuscule, with a rate of less than 0.05 percent.
On February 15, 2019, following notice and consideration of the
comments received, FMCSA determined that an exemption for motor
carriers
[[Page 13137]]
operating stinger-steered automobile transporters from the requirement
to place warning flags on projecting loads of motor vehicles would
likely maintain a level of safety that is equivalent to or greater than
the level of safety that would be obtained by complying with Sec.
393.87 and granted ACC's exemption request for a 5-year period (84 FR
4602). In its decision, FMCSA stated that the transport of automobiles
that are permitted, by statute, to extend up to 6 feet beyond the
rearmost portion of a stinger-steered auto transporter is a unique
situation as compared to the transportation of other items because
automobiles extend across virtually the entire width of the transporter
and are easily identifiable as automobiles to the motoring public.
FMCSA stated further that this is especially true if the rearmost
automobile being transported faces the front of the auto transporter,
as the rear of the automobile is required to be equipped with two
reflex reflectors located as far apart as practicable, which meet the
photometric requirements specified in FMVSS No. 108. To the contrary,
Sec. 393.87 requires extending loads be marked with red or orange
fluorescent warning flags, but does not impose any specific photometric
requirements for these flags, i.e., required level of visibility from a
certain distance, etc. While FMVSS No. 108 does not require the front
of automobiles to be equipped with reflex reflectors, FMCSA noted that
even if the rearmost automobile being transported is facing the rear of
the auto transporter, oncoming motorists will easily identify the
extending load as an automobile that extends across the full width of
the auto transporter.
Application for Renewal of Exemption
In the renewal application, ACC and AHAA stated that since the
granting of the exemption in 2019, they are unaware of any events that
suggest the exemption has resulted in a lower level of safety than
would be achieved by complying with Sec. 393.87 or that the exemption
has jeopardized public safety in any way. They also requested that
FMCSA clarify that the exemption applies to transportation of both new
and used vehicles. ACC and AHAA stated it is their view that the
exemption granted for transportation of ``motor vehicles'' already
includes new and used vehicles; however, not everyone in CMV
enforcement agrees with their interpretation. A copy of the request to
renew the exemption is available in the docket.
IV. Equivalent Level of Safety Analysis
FMCSA is not aware of any evidence indicating that providing relief
to motor carriers operating stinger-steered automobile transporter
equipment from the requirement to place warning flags on projecting
loads of new and used motor vehicles in accordance with the conditions
of the original exemption has resulted in any degradation in safety.
ACC and AHAA are also unaware of any events that suggest the exemption
has resulted in a lower level of safety than would be maintained by
complying with Sec. 393.87. The Agency, however, is continuing to
analyze crash data to better assess the safety of this exemption.
Therefore, for the reasons discussed above and in the prior notice
granting the original exemption request, FMCSA concludes that
provisionally renewing the exemption granted on February 15, 2019, for
a period of six (6) months to allow FMCSA to receive comment on the
application and assess any additional relevant crash data, on the terms
and conditions set forth in this exemption renewal decision, would
likely maintain a level of safety that is equivalent to, or greater
than, the level of safety achieved without the exemption.
V. Exemption Decision
A. Grant of Exemption
FMCSA provisionally renews the exemption for a period of six (6)
months subject to the terms and conditions of this decision and the
absence of adverse public comments that would cause the Agency to
terminate the exemption at an earlier date. The exemption from the
requirements of 49 CFR 393.87 is otherwise effective February 15, 2024,
through August 9, 2024, 11:59 p.m. local time, unless revoked.
B. Applicability of Exemption
During the temporary exemption period, motor carriers operating
stinger-steered automobile transporter equipment are exempt from the
requirements of Sec. 393.87 to place warning flags on loads of new or
used motor vehicles that project up to 6 feet from the rear of the
stinger-steered automobile transporter.
C. Terms and Conditions
1. This exemption is limited to stinger-steered automobile
transporter equipment and the transport of new or used motor vehicles.
It does not apply to any other type of transporter equipment or other
types of projecting or oversized loads.
2. Motor carriers operating under this exemption involved in any
crash to the rear end of the stinger-steered automobile transporter
equipment during the transport of new or used motor vehicles must
notify FMCSA within 7 business days of the crash by email at
MCPSV@DOT.GOV, even if such crash is not a reportable crash as defined
in Sec. 390.5T.
3. New and used motor vehicles transported on Stinger-steered
automobile transporters that overhang from the transporter must be
equipped with all other lights and reflective devices required by the
applicable FMVSS or FMCSRs.
4. Motor carriers and CMVs operating under this exemption must
comply with all other applicable FMCSRs (49 CFR parts 350-399), unless
specifically exempted from a requirement.
D. Preemption
In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR
381.600, during the period this exemption is in effect, no State shall
enforce any law or regulation that conflicts with or is inconsistent
with this exemption with respect to a person operating under the
exemption. States may, but are not required to, adopt the same
exemption with respect to operations in intrastate commerce.
E. Termination
The exemption will be valid for as provided in section V.A. above,
unless revoked earlier by FMCSA. FMCSA does not believe that motor
carriers and CMVs covered by the exemption will experience any
deterioration of their safety record. However, should this occur, FMCSA
will take all steps necessary to protect the public interest, including
revocation of the exemption without prior notice. The exemption may be
immediately rescinded if: (1) motor carriers and/or CMVs fail to comply
with the terms and conditions of the exemption; (2) the exemption has
resulted in a lower level of safety than was maintained before it was
granted; or (3) continuation of the exemption would not be consistent
with the goals and objectives of 49 U.S.C. 31136 or chapter 313.
Interested parties possessing information that would demonstrate
that this exemption or motor carriers operating stinger-steered
automobile transporter equipment without warning flags and with loads
of new or used motor vehicles projecting up to 6 feet beyond the rear
of the automobile transporter are not achieving the requisite statutory
level of safety should immediately notify FMCSA by email at
MCPSV@DOT.GOV. The Agency will evaluate any such information and, if
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safety is being compromised or if the continuation of the exemption is
not consistent with the goals and objectives of 49 U.S.C. 31136 or
chapter 313, may take immediate steps to revoke the exemption or impose
additional requirements as part of the exemption.
VI. Request for Comments
In accordance with 49 U.S.C. 31315(b), FMCSA requests public
comment from all interested persons on ACC and AHAA's application for
renewal of the exemption from Sec. 393.87.
All comments received before the close of business on the comment
closing date indicated at the beginning of this notice will be
considered and will be available for examination in the docket at the
location listed under the Addresses section of this notice. Comments
received after the comment closing date will be filed in the public
docket and will be considered to the extent practicable. In addition to
late comments, FMCSA will also continue to file, in the public docket,
relevant information that becomes available after the comment closing
date. Interested persons should continue to examine the public docket
for new material.
Sue Lawless,
Acting Deputy Administrator.
[FR Doc. 2024-03446 Filed 2-20-24; 8:45 am]
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