[Federal Register Volume 84, Number 32 (Friday, February 15, 2019)]
[Notices]
[Pages 4602-4605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02378]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0090]


Parts and Accessories Necessary for Safe Operation; Application 
for an Exemption From the Automobile Carriers Conference of the 
American Trucking Associations

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

-----------------------------------------------------------------------

SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
announces its decision to grant the Automobile Carriers Conference 
(ACC) of the American Truck Associations (ATA) for a limited 5-year 
exemption to relieve motor carriers operating stinger steered 
automobile transporter equipment from the requirement to place warning 
flags on projecting loads of new motor vehicles. The Federal Motor 
Carrier Safety Regulations (FMCSR) 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, located to indicate the maximum width of loads which extend 
beyond the sides and/or rear of the vehicle. The Agency has determined 
that the lack of warning flags on stinger steered automobile 
transporter equipment when transporting motor vehicles would not have 
an adverse impact on safety and that adherence to the terms and 
conditions of the exemption would achieve a level of safety equivalent 
to or greater than the level of safety provided by the regulation.

DATES: This exemption is effective February 15, 2019 and ending 
February 15, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Luke Loy, Vehicle and Roadside 
Operations Division, Office of Carrier, Driver, and Vehicle Safety, MC-
PSV, (202) 366-0676, Federal Motor Carrier Safety Administration, 1200 
New Jersey Avenue SE, Washington, DC 20590-0001.
    Docket: For access to the docket to read background documents or 
comments submitted to notice requesting public comments on the 
exemption application, go to www.regulations.gov at any time or visit 
Room W12-140 on the ground level of the West Building, 1200 New Jersey 
Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., ET, Monday 
through Friday, except Federal holidays. The on-line Federal document 
management system is available 24 hours each day, 365 days each year. 
The docket number is listed at the beginning of this notice.

SUPPLEMENTARY INFORMATION: 

Background

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the Federal Motor Carrier Safety 
Regulations. FMCSA must publish a notice of each exemption request in 
the Federal Register (49 CFR 381.315(a)). The Agency must provide the 
public an opportunity to inspect the information relevant to the 
application, including any safety analyses that have been conducted. 
The Agency must also provide an opportunity for public comment on the 
request.
    The Agency reviews safety analyses and public comments submitted, 
and determines whether granting the exemption would likely achieve a 
level of safety equivalent to, or greater than, the level that would be 
achieved by the current regulation (49 CFR 381.305). The decision of 
the Agency must be published in the Federal Register (49 CFR 
381.315(b)) with the reasons for denying or granting the application 
and, if granted, the name of the person or

[[Page 4603]]

class of persons receiving the exemption, and the regulatory provision 
from which the exemption is granted. The notice must also specify the 
effective period and explain the terms and conditions of the exemption. 
The exemption may be renewed (49 CFR 381.300(b)).

ACC's Application for Exemption

    The ACC applied for an exemption from 49 CFR 393.87 requesting that 
motor carriers operating ``stinger steered'' automobile transporter 
equipment be relieved from the requirement to place warning flags on 
projecting loads of new motor vehicles. Stinger steered vehicles are 
those with the fifth wheel hitch located on a drop frame behind and 
belowthe rear-most axle of the power unit. A copy of the application is 
included in the docket referenced at the beginning of this notice.
    Section 393.87 of the FMCSRs requires 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.
    In its application, the ACC states ``With the enactment of the FAST 
[Fixing America's Surface Transportation] Act in December 2015, stinger 
steered automobile transporter equipment are permitted a rear vehicular 
overhang allowance of not less than six feet. [49 U.S.C. 
31111(b)(1)(G)] Prior to the enactment of the FAST Act, the minimum 
rear overhang allowance for all automobile transporters was a minimum 
of four feet. [23 CFR Sec. 658.13(e)(ii)]
    The ACC states:

    The transportation of new motor vehicles poses a dilemma in 
adhering to the flag requirements. Affixing flags or anything else 
to the surfaces of the vehicles is not allowed by vehicle 
manufacturers as it can lead to scratches and other damage to the 
vehicle. Auto transporters have attempted to adhere to the intent of 
the regulations by affixing flags at the end of the trailers (see 
attachments). This in itself can still lead to vehicle damage by 
virtue of the flag rubbing on the vehicle surface. However, this 
attempt to comply with the regulatory intent does not adhere to the 
letter of the regulations and has resulted in carriers receiving 
numerous citations for being in violation of the flag requirements.

    The ACC states 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,'' and that FMCSS No. 108 has required motor 
vehicles to be equipped with side-facing reflex reflectors in addition 
to amber reflectors in the front of the vehicle and red reflectors in 
the rear of the vehicle since 1968. The ACC contends that the 
reflective devices that are required to be on the vehicles being 
transported, along with the required lighting and conspicuity 
treatments on the trailer ``more than adequately adhere to the intent 
of Sec. 383.87 in notifying the motoring public that a load extends 
more than four feet beyond the rear of the trailer.'' In addition, ACC 
states that FMVSS No. 108 imposes specific performance criteria for the 
required reflectors, whereas there are no such performance requirements 
for the flags required by the FMCSRs.
    The ACC states that the automobile transporter vehicle population 
is a fraction of the overall CMV population, consisting of 
approximately 16,000 units, and that the stinger steered vehicle 
population is a subset of that. Further, ACC notes that since the 
enactment of the FAST Act, the industry has not experienced an increase 
in collisions into the rear end of trucks with the additional 2 feet of 
allowable overhang. The ACC states that ``Statistics show that the 
accident frequency of collisions into the rear end of auto transporters 
is miniscule with a rate of less than 0.05%.''
    The exemption would apply to all motor carriers operating stinger 
steered automobile transporter equipment. The ACC believes that the 
reflex reflectors that are required to be installed on the new motor 
vehicles being transported, in conjunction with the various marking and 
conspicuity requirements required on the trailer transporting the new 
vehicles, provide a level of safety that is greater than that achieved 
by the warning flags required by the FMCSRs.

Comments

    FMCSA published a notice of the application in the Federal Register 
on February 27, 2018, and asked for public comment (83 FR 8569). The 
Agency received four comments: Rick Earl from United Road; Brian Suhre 
from Cassens Transport Company; Kirk Welch from Toyota Logistics 
Services, Inc.; and Shaun Kildare and Peter Kurdock from Advocates for 
Highway and Auto Safety (Advocates).
    Mr. Earl, Mr. Suhre, and Mr. Welch each provided comments 
supporting the ACC application. Mr. Earl stated that the reflex 
reflectors on the passenger vehicles being transported provide 
significantly higher visibility than the flags required by section 
393.87 of the FMCSRs, and that the ``flags can damage the valuable 
passenger vehicles we carry, causing significant waste and discord with 
our customers and their customers.'' In addition, Mr. Earl stated:

    The rule itself is sound and makes sense, but in the specific 
case of auto hauling it becomes burdensome and does not add to the 
safety of the motoring public. It further adds confusion from an 
enforcement perspective. Our car haulers often find themselves cited 
by local law enforcement, have been forced to turn on lights on the 
cars we carry before being allowed to leave the scale or other such 
measures employed by the states in an effort to comply with this 
unnecessary rule.

Mr. Suhre stated that ``the vehicles we transport, by their very 
nature, meet Federal conspicuity requirements in both daytime and 
nighttime,'' and also noted that ``vehicle manufacturers prohibit us 
from attaching any items to the vehicles during transport.'' Like Mr. 
Earl, Mr. Suhre noted that drivers ``have even been required to climb 
up on the trailer to turn on the headlights and/or taillights of a 
cargo unit before being allowed to leave an inspection site.'' Mr. 
Welch stated:

    The flag requirements on loads extending beyond four feet from 
the rear of a trailer makes perfect sense when that load consists of 
a telephone pole, a ladder, or some other object, in order to alert 
the motoring public to its existence. . . . As ACC stated in its 
petition request, the current flag placing requirement is 
impractical when dealing with motor vehicles. Attaching flags on the 
vehicle at the rear of the transporter and to the side of the 
vehicle being transported will ultimately result in unacceptable 
damage to the finish of the new vehicle.

Mr. Welch, like Mr. Earl, noted that attaching flags on the vehicle at 
the rear of the transporter and to the side of the vehicle being 
transported will result in vehicle damage. In addition, Mr. Welch 
stated:

    The fact that our vehicles must meet NHTSA lighting standards, 
including those for reflex reflectors, in addition to the lighting 
and conspicuity of the trailers is more than enough to alert the 
motoring public that a load extension exists. As the petition 
request states, NHTSA requirements are quantifiable standards 
whereby no such reflective standards exist for flags, as required by 
the FMCSA. This ultimately results in providing for a safer highway 
environment for the traveling public.


[[Page 4604]]


    Advocates opposed the ACC application because it believes (1) that 
the requirement for warning flags in the FMCSRs and the requirement for 
reflex reflectors in the FMVSSs are intended to address two distinct 
areas of public safety, (2) increasing the overhang length for stinger 
steered automobile transporters significantly heightens the need for 
proper warnings to the public of these new longer loads, and (3) there 
has not been enough time to determine the real world on-road effects of 
the new overhang standard. Specifically with respect to its concerns 
about the adequacy of reflex reflectors to provide warning of an 
overhanging load, Advocates stated:

    The reflectors required by FMVSS 108 are intended to ensure that 
passenger motor vehicles operated by the public can be identified by 
other road users. They are not designed not would the public be 
expected to understand that the reflectors (required since 1968 for 
this sole purpose) are also intended to indicate that a CMV is 
carrying an unusually wide or overhanging load off and well above 
the surface of the roadway. Compliance with a FMVSS by an automobile 
manufacturer is in no way a substitute for a motor carrier complying 
with an FMCSR. These two sets of separate regulations are intended 
to address two distinct areas of public safety. In addition, there 
is no data presented in the Application that shows that reflectors 
installed on a passenger motor vehicle provide the intended effect 
of warning flags placed on a CMV carrying overhanging freight.

While acknowledging that the FAST Act extended the rear overhang length 
for stinger steered automobile transporters, Advocates notes that 
``Section 5520 of the FAST Act did not include, and Congress did not 
intend, to permit an exemption from the warning flag requirement of the 
FMCSRs.'' Further, Advocates expressed concern that carriers 
transporting automobiles have not developed any practical alternatives 
to comply with the regulation, such as flags that do not damage the 
surface of an automobile, instead of seeking an exemption from a 
critical safety regulation.

FMCSA Decision

    The FMCSA has evaluated the ACC exemption application, and the 
comments received. The Agency believes that granting the temporary 
exemption to relieve motor carriers operating stinger steered 
automobile transporters from the requirement to place warning flags on 
projecting loads of new motor vehicles will provide a level of safety 
that is equivalent to, or greater than, the level of safety achieved 
without the exemption. Section 393.87(b) of the FMCSRs requires loads 
that extend more than 4 feet beyond the rear of a vehicle be marked 
with warning flags ``to indicate the maximum width of loads which 
extend beyond the sides and/or rear of the vehicle.'' [Emphasis added.] 
The FMCSRs require a single flag if the projecting load is 2 feet wide 
or less, and two flags if the projecting load is wider than 2 feet. The 
flags are critical when the extending load may not be easily 
identifiable to the motoring public (i.e., logs, building materials), 
and/or when the load may not extend across the entire width of the 
vehicle being used to transport the item(s).
    However, the Agency believes 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 stinger steered auto 
transporter, and are easily identifiable as automobiles to the motoring 
public. 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,\1\ 
located as far apart as practicable, that meet the photometric 
requirements specified in FMVSS No. 108. To the contrary, section 387 
of the FMCSRs requires extending loads to 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 believes 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.
---------------------------------------------------------------------------

    \1\ Reflex reflector is defined in section 393.5 of the FMCSRs 
as ``A device which is used on a vehicle to give an indication to an 
approaching driver by reflected light from the lamps on the 
approaching vehicle.''
---------------------------------------------------------------------------

    FMCSA acknowledges Advocates' comment that the longer, 6-foot 
overhang has only been permitted for a relatively short period of time, 
and as such, it is difficult to determine what--if any--impact the new 
standard has had on safety. Nonetheless, the FAST Act expressly permits 
stinger steered automobile transporters to carry loads that overhang 
the rear by 6 feet. Regarding Advocates' concern that there has not 
been enough time to determine the ``additional threat to public safety 
that would result from removing warning flags from these longer 
loads,'' the Agency is required to make a determination that it is 
likely that an equivalent or greater level of safety will be maintained 
prior to granting any temporary exemption. As discussed above, FMCSA 
believes that the transport of automobiles via stinger steered auto 
transporters is a unique situation as compared to the transportation of 
other items because automobiles extend across virtually the entire 
width of the stinger steered auto transporter, and are easily 
identifiable as automobiles to the motoring public. Further, the 
automobile transporter vehicle population is a very small fraction of 
the overall commercial vehicle population, consisting of approximately 
16,000 units, with the stinger steered vehicle population a subset of 
those 16,000 vehicles. The very limited exposure of these stinger 
steered auto transporters, coupled with the fact that the automobiles 
they are hauling are easily identifiable by oncoming motorists leads 
FMCSA to believe that granting the temporary exemption is likely to 
provide a level of safety that is equivalent to, or greater than, the 
level of safety achieved without the exemption.

Terms and Conditions for the Exemption

    The Agency hereby grants the exemption for a 5-year period, 
beginning February 15, 2019 and ending February 15, 2024. During the 
temporary exemption period, motor carriers operating stinger steered 
automobile transporter equipment will not have to place warning flags 
on projecting loads of motor vehicles that extend up to 6 feet from the 
rear of the automobile transporter.
    The exemption will be valid for 5 years unless rescinded earlier by 
FMCSA. The exemption will be rescinded if: (1) Motor carriers and/or 
commercial motor vehicles 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(e) and 31315(b).
    Interested parties possessing information that would demonstrate 
that motor carriers operating stinger steered automobile transporter 
equipment with projecting loads of motor vehicles up to 6 feet from the 
rear of the automobile transporter are not achieving the requisite 
statutory level of

[[Page 4605]]

safety should immediately notify FMCSA. The Agency will evaluate any 
such information and, if safety is being compromised or if the 
continuation of the exemption is not consistent with 49 U.S.C. 31136(e) 
and 31315(b), will take immediate steps to revoke the exemption.

Preemption

    In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR 
381.600, during the period this exemption is in effect, no State shall 
enforce any law or regulation applicable to interstate commerce that 
conflicts with or is inconsistent with this exemption with respect to a 
firm or person operating under the exemption. States may, but are not 
required to, adopt the same exemption with respect to operations in 
intrastate commerce.

    Issued on: December 13, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-02378 Filed 2-14-19; 8:45 am]
 BILLING CODE 4910-EX-P