[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:
    <bullet> Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2018-0090/document. Follow the online 
instructions for submitting comments.
    <bullet> Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Washington, DC 20590-0001.
    <bullet> 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.
    <bullet> 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; <a href="/cdn-cgi/l/email-protection#54191704070214303b207a333b22"><span class="__cf_email__" data-cfemail="307d7360636670545f441e575f46">[email protected]</span></a>. 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 <a href="/cdn-cgi/l/email-protection#c8aabaa1a9a6e6afe6aca9a0a4a1a688aca7bce6afa7be"><span class="__cf_email__" data-cfemail="80e2f2e9e1eeaee7aee4e1e8ece9eec0e4eff4aee7eff6">[email protected]</span></a>. 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 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="8cc1cfdcdfdaccc8c3d8a2cbc3da">[email protected]</a>, 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 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="e1aca2b1b2b7a1a5aeb5cfa6aeb7">[email protected]</a>. The Agency will evaluate any such information and, if

[[Page 13138]]

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]
BILLING CODE 4910-EX-P


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