2024-24326. Parts and Accessories Necessary for Safe Operation; Exemption Renewal for Automobile Carriers Conference and Auto Haulers Association of America

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Department of Transportation

Federal Motor Carrier Safety Administration

1. [Docket No. FMCSA-2018-0090]

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).

ACTION:

Notice of final disposition; renewal of exemption.

SUMMARY:

FMCSA announces its final decision to 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. The exemption is renewed for 5 years, unless revoked earlier.

DATES:

This renewed exemption is effective August 9, 2024, through February 15, 2029, unless revoked earlier. Comments must be received on or before November 21, 2024.

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; [phone]; [e-mail]. If you have questions on viewing material in the docket, call Dockets Operations at [phone].

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. 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 [phone] or [phone] before visiting Dockets Operations.

B. 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 § 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.^[1] The flags must be located to indicate the maximum width of loads which extend beyond the sides and/or rear of the vehicle.

( print page 84440)

Original Exemption

In its original exemption application, ACC requested an exemption from § 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 § 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 § 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 § 393.87.

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 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 § 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, § 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 § 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. Provisional Renewal of Exemption

On February 21, 2024, after review of ACC's renewal application, FMCSA published its decision to provisionally grant a (6) month renewal of the exemption effective February 15, 2024, through August 9, 2024, and requested public comment (89 FR 14126). The Agency makes that renewal final for the remainder of the five-year period.

Today's notice supersedes the February 21, 2024, and finalizes the provisionally granted five-year exemption, through February 15, 2029.

V. Public Comments

Two comments were submitted to the docket, both supporting the renewal of the exemption. Nationwide Auto Transport, Inc. expressed gratitude for delaying further regulation, seeing it as a relief for the already overburdened industry. US Auto Logistics, LLC appreciated the six-month extension of the warning flag waiver, noting its positive impact on commerce and the people involved.

VI. Agency Decision

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 § 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 renewing the exemption granted on February 15, 2019, for the remainder of the five-year period, 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.

VII. Exemption Decision

A. Grant of Exemption

FMCSA renews the exemption for four (4) years and six (6) months subject to the terms and conditions of this decision. The exemption from the requirements of 49 CFR 393.87 is ( print page 84441) otherwise effective August 9, 2024, through February 15, 2029, 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 § 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. The Agency encourages drivers to keep an electronic or hard copy of the renewal exemption with them or in the CMV.

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 [e-mail], even if such crash is not a reportable crash as defined in § 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 [e-mail]. The Agency will evaluate any such information and, if 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 § 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.

Vincent G. White,

Deputy Administrator.

Footnotes

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.

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).