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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - [FMCSA Docket No. FMCSA-99-6285 (formerly OMCS-99-6285)] 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Grant of application for exemption. 

# SUMMARY:

The FMCSA is granting the application of the General Motors Corporation (GM) for an exemption from certain fuel tank design and certification labeling requirements in the Federal Motor Carrier Safety Regulations (FMCSRs). The exemption enables motor carriers to operate commercial motor vehicles (CMVs) manufactured by GM, and equipped with fuel tanks that do not meet the FMCSA's requirements that fuel tanks be capable of receiving fuel at a rate of at least 20 gallons per minute, and be labeled or marked by the manufacturer to certify compliance with the design criteria. The FMCSA believes the terms and conditions of the exemption achieve a level of safety that is equivalent to the level of safety that would be achieved by complying with the regulations. The exemption preempts inconsistent State and local requirements applicable to interstate commerce. 

# DATES:

The exemption is effective on May 26, 2000. The exemption expires on May 26, 2002. 

# FOR FURTHER INFORMATION CONTACT:

Mr. Larry W. Minor, Office of Bus and Truck Standards and Operations, (202) 366-4009, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-0001; or Mr. Charles E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. 

# SUPPLEMENTARY INFORMATION:

## Electronic Access 

                    Internet users may access all comments submitted to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, in response to the previous notice concerning this subject by using the universal resource locator                           ( print page 24532)                        (URL):                     *http://dms.dot.gov.*                     It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.                 

                    An electronic copy of this document may be downloaded using a modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at                     *http://www.nara.gov/​fedreg*                     and the Government Printing Office's database at:                     *http://www.access.gpo.gov/​nara.*

## Creation of New Agency 

On December 9, 1999, the President signed the Motor Carrier Safety Improvement Act of 1999 (Public Law 106-159, 113 Stat. 1748). The new statute established the FMCSA in the Department of Transportation. On January 4, 2000, the Office of the Secretary published a final rule rescinding the authority previously delegated to the Office of Motor Carrier Safety (OMCS) (65 FR 220). This authority is now delegated to the FMCSA. 

                    The motor carrier functions of the OMCS's Resource Centers and Division (                    *i.e*., State) Offices have been transferred to FMCSA Service Centers and FMCSA Division Offices, respectively. Rulemaking, enforcement and other activities of the Office of Motor Carrier Safety while part of the FHWA, and while operating independently of the FHWA, will be continued by the FMCSA. The redelegation will cause no changes in the motor carrier functions and operations previously handled by the FHWA or the OMCS. For the time being, all phone numbers and addresses are unchanged.                 

## Background 

On June 9, 1998, the President signed the Transportation Equity Act for the 21st Century (TEA-21) (Public Law 105-178, 112 Stat. 107). Section 4007 of the TEA-21 amended 49 U.S.C. 31315 and 31136(e) concerning the Secretary of Transportation's (the Secretary's) authority to grant exemptions from the FMCSRs. An exemption may be up to two years in duration, and may be renewed. 

                    Section 4007 of the TEA-21 requires the FMCSA to publish a notice in the                     **Federal Register**                     for each exemption requested, explaining that the request has been filed, and providing the public an opportunity to inspect the safety analysis and any other relevant information known to the agency, and comment on the request. Prior to granting a request for an exemption, the agency must publish a notice in the                     **Federal Register**                     identifying the person or class of persons who will receive the exemption, the provisions from which the person will be exempt, the effective period, and all terms and conditions of the exemption. The terms and conditions established by the FMCSA must ensure that the exemption will likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved by complying with the regulation.                 

On December 8, 1998, the FHWA published an interim final rule implementing section 4007 of the TEA-21 (63 FR 67600). The regulations (49 CFR part 381) established the procedures to be followed to request waivers and apply for exemptions from the FMCSRs, and the procedures that will be used to process them. 

## GM's Application for an Exemption 

GM applied for an exemption from 49 CFR 393.67(c)(7)(ii), which requires that certain fuel tank systems on CMVs be designed to permit a fill rate of at least 20 gallons (75.7 liters) per minute, and 49 CFR 393.67(f)(2) and (f)(3) which require that liquid fuel tanks be marked with the manufacturer's name, and a certification that the tank conforms to all applicable rules in § 393.67, respectively. GM's application for an exemption was included in its response to the notice of intent to grant similar exemptions to the Ford Motor Company on behalf of motor carriers operating certain vehicles manufactured by Ford (64 FR 43417; August 10, 1999). A copy of GM's application is included in the docket referenced at the beginning of this notice. GM indicated that it “fully supports the FHWA's preliminary determination to grant an exemption from the requirements of [§§ ] 393.67(c)(7)(ii), 393.67(f)(2) and 393.67(f)(3)(ii) to [the] Ford Motor Company” and requested the exemption on behalf of motor carriers operating certain vehicles manufactured by GM. 

GM produces G-vans (Chevrolet Express and GMC Savanna) and full-size C/K trucks (Chevrolet Silverado and GMC Sierra) which may be equipped for numerous uses, including use as a CMV as defined in 49 CFR 390.5. GM argues that exemptions are needed for the same reasons described in the Ford Motor Company's applications. The OMCS granted the Ford Motor Company's applications for exemptions on December 20, 1999 (64 FR 71184). 

## Notice of Application and Proposal To Grant Exemption; Request for Comments 

On December 20, 1999 (64 FR 71186), the Office of Motor Carrier Safety published a notice announcing its proposal to grant GM's application for an exemption from certain fuel tank design and certification requirements in the FMCSRs. The notice discussed GM's application, the basis for proposing to grant the exemption, and requested public comment from all interested parties. 

## Discussion of Comments 

The FMCSA received comments from El Dorado National and GM. Both commenters agreed with the preliminary decision to grant an exemption for motor carriers operating certain vehicles manufactured by GM. 

El Dorado National believes the rate at which a fuel tank may be filled has no bearing on the safe operation of the vehicle, or safety during the refueling process. El Dorado National stated that “[t]he tanks in question will accept fuel at a rate that the typical commercial unleaded fuel pumps deliver. * * *” 

On the subject of labeling of fuel tanks, El Dorado National indicated that “[s]ince these vehicle tanks are tested, certified, and mass produced it does not seem relevant to label each tank.” El Dorado National believes the absence of a certification label would not compromise safety. 

## FMCSA Decision 

The FMCSA has considered the comments received in response to the December 20, 1999, notice of application and has decided to grant the exemption. 

### Fill-Pipe Capacity Requirement 

                    The FMCSA has reviewed its fill pipe design requirements and has concluded that the fill-pipe capacity criterion, when applied to gasoline-powered vehicles, is inconsistent with the Environmental Protection Agency's (EPA) regulations [1]                                          concerning gasoline fuel pumps. While the FMCSA requirement may be appropriate for diesel fuel-powered commercial motor vehicles, it mandates that fill pipes on gasoline-powered vehicles be capable of receiving fuel at twice the maximum                           ( print page 24533)                        rate gasoline fuel pumps are designed to dispense fuel.                 

                    Since the EPA's regulation includes an exemption for dispensing pumps used exclusively for refueling heavy-duty vehicles, it is possible that some of the gasoline-powered vehicles that would be exempted could be refueled at a location (                    *e.g.,*                     at a fleet terminal) where the dispensing equipment exceeds 10 gallons per minute. However, the FMCSA does not believe this would present a safety problem. The FMCSA agrees with GM's argument in its application that the use of automatic shut-off valves on fuel dispensing pumps make it unlikely that a significant amount of fuel will be spilled if a vehicle is refueled using a pump that exceeds the vehicle's capacity for receiving fuel. The agency believes the combination of the EPA regulation concerning dispensing pumps, and the use of automatic shut-off nozzles on these pumps ensures a level of safety that is equivalent to the level of safety that would be obtained by complying with § 393.67(c)(7)(ii).                 

The FMCSA believes any operational problems experienced by motor carriers using certain fuel pumps to refill GM vehicles have already been resolved. The vehicles in questions have been in use for a number of years and are still being produced. Therefore, motor carriers using these vehicles have experience refueling them. The FMCSA is not aware of any safety problems associated with the fill-pipe capacity for the fuel tanks on GM G and C/K vehicles. 

The FMCSA also reviewed available information on the origin of the fill-pipe rule. The 20-gallon per minute rate in § 393.67(c)(7)(ii) is based on the Society of Automotive Engineers' (SAE) recommended practice “Side Mounted Gasoline Tanks” as revised in 1949. The SAE later published fuel tank manufacturing practices in SAE J703, “Fuel Systems,” an information report which consisted of the former Interstate Commerce Commission's requirements for fuel systems and tanks (codified at 49 CFR 193.65 in the 1953 edition of the Code of Federal Regulations). The information report retained the 20-gallon-per-minute rate. The SAE currently covers this subject under recommended practice SAE J703 “Fuel Systems—Truck and Truck Tractors.” The 1995 version of the recommended practice continues to use the 20-gallon-per-minute criterion for fill pipes. 

The FMCSA does not have technical documentation explaining the rationale for the SAE's original use of the 20-gallon-per-minute rate in 1949 and believes the adoption of the criterion in Federal regulations may have resulted in its continued use in the current SAE recommended practice which references §§ 393.65 and 393.67. As stated by the SAE, “[t]he intent of this document is not only to clarify the procedures and reflect the best currently known practices, but also to prescribe requirements * * * that meet or exceed all corresponding performance requirements of FMCSR 393.65 and 393.67 that were in effect at the time of issue.” 

The FMCSA believes the current requirement may need to be reconsidered in light of the EPA requirements. While the agency reviews this issue, motor carriers should not be penalized for operating vehicles with non-compliant fill pipes that they had no practical means of identifying. Therefore, the agency is exempting interstate motor carriers operating certain GM vehicles from § 393.67(c)(7)(ii). 

### Fuel Tank Marking and Certification 

With regard to an exemption from the fuel tank marking and certification requirements (§§ 393.67(f)(2) and (f)(3)(ii)), the FMCSA does not believe there would be a readily apparent adverse impact on safety associated with the absence of the required markings. Although the FMCSA considers marking and certification important for helping enforcement officials and motor carriers quickly distinguish between fuel tanks that are certified as meeting the agency's requirements and those that are not, the agency does not believe the operators of the GM vehicles should be penalized because the fuel tanks are not marked and certified in accordance with § 393.67. 

As a vehicle manufacturer, GM is fully aware of all applicable Federal Motor Vehicle Safety Standards issued and enforced by the National Highway Traffic Safety Administration, the agency in the U.S. Department of Transportation responsible for regulating motor vehicle and equipment manufacturers. However, GM may not have had the same level of awareness about all of the fuel tank requirements of the FMCSA , the agency responsible for regulating motor carriers. 

GM has indicated that its tanks do not meet the fill pipe requirements, and do not have the necessary certification. An exemption to the certification is needed because GM cannot misrepresent its product by certifying compliance with all applicable provisions in § 393.67 while its fill pipe designs allow approximately 10 gallons of gasoline fuel per minute to flow into the fuel tank. The agency believes granting exemptions for the affected motor carriers is the most effective way to resolve the problem while ensuring highway safety. 

## Terms and Conditions for the Exemption 

The FMCSA is providing an exemption to §§ 393.67(c)(7)(ii), 393.67(f)(2), and 393.67(f)(3)(ii) for motor carriers operating certain GM vehicles. The exemption is effective upon publication pursuant to 5 U.S.C. 553(d)(1) and is valid until May 26, 2002, unless revoked earlier by the FMCSA. GM, or any of the affected motor carriers, may apply to the FMCSA for a renewal. The exemption preempts inconsistent State or local requirements applicable to interstate commerce. 

The motor carriers operating these vehicles are not required to maintain documentation concerning the exemption because the vehicles have markings that would enable enforcement officials to identify them. The vehicles covered by the exemption can be identified by their vehicle identification numbers (VINs). The VINs contain “J” or “K” in the fourth position and a “1” in the seventh position. 

Authority:49 U.S.C. 31136 and 31315; and 49 CFR 1.73. 

Issued on: April 14, 2000. 

Julie Anna Cirillo, 

Acting Deputy Administrator. 

# Footnotes

1.                             The EPA requires (40 CFR 80.22) that every retailer and wholesale purchaser-consumer must limit each nozzle from which gasoline or methanol is introduced into motor vehicles to a maximum fuel flow rate not to exceed 10 gallons per minute (37.9 liters per minute). Any dispensing pump that is dedicated exclusively to heavy-duty vehicles is exempt from the requirement.                    
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[FR Doc. 00-10400 Filed 4-25-00; 8:45 am] 

BILLING CODE 4910-22-P