[Federal Register Volume 85, Number 180 (Wednesday, September 16, 2020)]
[Notices]
[Pages 57928-57930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20440]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0069]


Parts and Accessories Necessary for Safe Operation; Application 
for an Exemption From Charles Machine Works, Inc.

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

ACTION: Notice of final disposition.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
announces its decision to grant Charles Machine Works, Inc.'s (CMW) 
application for a limited 5-year exemption to allow the use of gravity 
or syphon-fed fuel systems for auxiliary equipment installed on or used 
in connection with commercial motor vehicles (CMV). While the Federal 
Motor Carrier Safety Regulations (FMCSR) currently prohibit the use of 
fuel systems that supply fuel directly to the carburetor or injector by 
gravity or syphon feed, the Agency has determined that granting the 
exemption to allow the use of gravity or syphon-fed fuel systems for 
auxiliary equipment that operates only when the CMV is stationary would 
likely maintain a level of safety that is equivalent to, or greater 
than the level of safety provided by the regulation.

DATES: This exemption is effective September 16, 2020 and ending 
September 16, 2025.

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. To be sure someone is there to 
help you, please call (202) 366-9317 or (202) 366-9826 before visiting 
Docket Operations. 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 FMCSRs. 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 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)).

CMW's Application for Exemption

    CMW applied for an exemption from 49 CFR 393.65(d) to allow the use 
of gravity or syphon-fed fuel systems for auxiliary equipment installed 
on or used in connection with CMVs that operate only when the CMV is 
not operating on the highway. A copy of the application is included in 
the docket referenced at the beginning of this notice.
    Section 393.65 of the FMCSRs prescribes certain requirements that 
are applicable to all CMV fuel systems. The requirements in this 
section apply to systems for containing and supplying fuel for the 
operation of (1) motor vehicles or (2) auxiliary equipment installed 
on, or used in connection with, motor vehicles. Section 393.65(d) 
prohibits a fuel system from supplying fuel by gravity or syphon feed 
directly to the carburetor or injector.
    CMW is a family of companies focused on the installation, 
maintenance, rehabilitation, and replacement of underground pipe and 
cable for the telecom, oil, electricity, gas, water, and wastewater 
industries. Its family of companies includes Ditch Witch[supreg], 
Subsite[supreg] Electronics, DW/TXS[supreg], HammerHead[supreg], 
Trencor[supreg] and MTI[supreg] Equipment. CMW designs, manufactures 
and sells a range of products to cover the full life-cycle of 
underground pipe and cable, including horizontal directional drills, 
walk and ride trenchers, utility loaders, vacuum excavators, asset 
locators, pipe rehabilitation solutions, and after-market tools.
    Some of the equipment designed and manufactured by CMW utilizes 
small, commercially available internal combustion engines to power 
auxiliary equipment that is permanently mounted on a CMV. CMW states 
that while auxiliary equipment that is permanently mounted to CMVs is 
considered part of the CMV and subject to the requirements of 49 CFR 
393.65(d), it

[[Page 57929]]

``has identified that currently there is uneven roadside enforcement 
with regard to the use of gravity fed fuel tanks on auxiliary equipment 
installed on or used in connection with commercial motor vehicles.''
    In support of its application, CMW stated:

    Most small commercially available internal combustion engines 
used on auxiliary equipment are equipped from the factory with 
gravity fed fuel tanks attached to the engine . . . The cost of 
modifying these small internal combustion engines to remove the fuel 
tank from the engine and to re-engineer the fuel delivery system to 
use a fuel pump to pump fuel from the now removed fuel tank to the 
internal combustion engine requires electrical wiring to be run from 
the commercial motor vehicle to operate the fuel pump. Manufacturers 
who have gone to this additional expense, question the reasoning of 
removing the fuel tank from above the engine and placing it beside 
the engine and equipping the system with a fuel pump to transfer 
fuel from the tank to the engine. Since the auxiliary equipment only 
operates when the CMV is not operating on the highway there does not 
seem to be any legitimate safety reason for this requirement. A 
review of previous Federal Register notices does not describe why 
this requirement was added for fuel systems for auxiliary equipment 
on commercial motor vehicles, when this equipment is not operating 
while the CMV is operating on the highway.

Comments

    FMCSA published a notice of the application in the Federal Register 
on March 28, 2019, and asked for public comment (84 FR 11862). The 
Agency received comments from the Truck Trailer Manufacturers 
Association (TTMA) and two individuals.
    TTMA commented in support of the application, and noted that the 
relief requested by CMW is similar to the amendment requested by TTMA 
in its December 2018 petition for rulemaking to the Agency on the same 
issue. Specifically, TTMA has petitioned FMCSA to amend the FMCSRs to 
exempt ``fuel tanks for auxiliary equipment designed to be operated 
when the vehicle is not in motion and having a capacity of 5 gallons or 
less of liquid fuel'' from the prohibition against fuel systems using 
gravity or syphon feed in 49 CFR 393.65(d). One individual submitted 
comments in support of CMW's application, and suggested that FMCSA 
``examine the language in Part 393.65 and narrow the equipment subject 
to Part 393.65(d) to systems other than those systems designed to 
utilize gravity feed or require a petcock be installed to shut off fuel 
in transit or prohibit the equipment from operating while the `motor 
vehicle' is operating on the highways.'' Another individual expressed 
concern that the auxiliary equipment will be operated while the vehicle 
is in motion, and that it would be very difficult for FMCSA to enforce 
a prohibition against such use. To address these concerns, the 
commenter suggested that the Agency consider instituting controls to 
ensure that auxiliary equipment is (1) inoperative while the CMV is in 
motion or (2) located such that the driver or operator cannot turn it 
on while the vehicle is in motion. The commenter recommended that 
additional data be collected before a decision is made to grant the 
exemption.

FMCSA Analysis

    The motor carrier safety regulations pertaining to CMV fuel systems 
have prohibited the use of fuel systems that supply fuel directly to 
the carburetor or injector by gravity or syphon feed since at least the 
early 1950s when such regulations were administered by the Interstate 
Commerce Commission (ICC). In its comments to the CMW application, TTMA 
stated ``We believe that the prohibition against siphon or gravity feed 
was inserted to prevent a situation where fuel would continuously feed 
an engine on a drive vehicle that had caught fire.'' At that time, the 
regulations for fuel systems and liquid fuel tanks were limited to 
those used specifically for the propulsion of the motor vehicle, and 
did not contemplate systems for containing and supplying fuel for the 
operation of auxiliary equipment installed on or used in connection 
with the motor vehicle.\1\
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    \1\ See the ICC's amendments to 49 CFR part 193, Parts and 
Accessories Necessary for Safe Operations, Subpart E--Fuel Systems, 
dated May 15, 1952 (17 FR 4438).
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    On February 19, 1970, the Federal Highway Administration (FHWA), 
the predecessor to FMCSA, published a notice of proposed rulemaking 
(NPRM) proposing amendments to the regulations pertaining to CMV fuel 
systems to (1) apply additional provisions to diesel fuel tanks, (2) 
set somewhat more stringent requirements for liquid fuel tanks other 
than side-mounted liquid fuel tanks, (3) update the references to 
industry standards, and (4) rearrange the subpart for increased clarity 
(35 FR 3177). While retaining the prohibition against use of fuel 
systems that supply fuel directly to the carburetor or injector by 
gravity or syphon feed, the NPRM proposed to define ``fuel tank'' as 
``a tank installed on a motor vehicle to contain and supply fuel for 
its operation or for the operation of auxiliary equipment.'' [Emphasis 
added.] There was no discussion in the NRPM regarding the proposal to 
extend the scope of the regulation beyond systems/tanks used for the 
propulsion of the CMV, and to include fuel tanks used for the operation 
of auxiliary equipment.
    In a final rule published on August 14, 1971 (36 FR 15444), FHWA 
did not retain the proposed definition of ``Fuel tank'' that included 
the reference to ``auxiliary equipment,'' but instead, adopted a new 
section in 49 CFR 393.65 regarding the applicability of the rules in 
Subpart E to all fuel systems. Specifically, the August 1971 rule 
adopted 49 CFR 393.65(a), ``Application of the rules in this section,'' 
as follows (which remains unchanged today): ``The rules in this section 
apply to systems for containing and supplying fuel for the operation of 
motor vehicles or for the operation of auxiliary equipment installed 
on, or used in connection with, motor vehicles.'' While there were 26 
commenters to the February 1970 NPRM, there was no discussion in the 
August 1971 final rule regarding the rationale for extending the scope 
of the fuel system requirements to include systems/tanks used for the 
operation of auxiliary equipment installed on or used in connection 
with the CMV.
    FMCSA is unable to confirm from the ICC rulemaking documents 
whether the prohibition of gravity or syphon-fed fuel systems was 
established (and has been maintained in the regulations since the 
1950s) to eliminate/minimize the risk associated with the continuous 
supply of fuel to the engine of a vehicle that has caught fire, as 
stated by TTMA in its comments. However, the TTMA explanation is 
certainly reasonable and FMCSA believes that the regulatory prohibition 
against the use of such systems has been successful in mitigating the 
consequences of CMV vehicle fires. At the same time, FMCSA agrees with 
TTMA and a commenter that the risk of fires involving fuel from 
auxiliary equipment that is mounted to a CMV is remote because the 
auxiliary equipment is rarely, if ever, operated when the CMV is in 
motion. Instead, most auxiliary equipment that is permanently mounted 
to a CMV utilizing small, commercially available internal combustion 
engines (such as small pumps) is typically used to perform work-related 
functions at various jobsites when the CMV is no longer operating on 
the highway. Additionally, the capacity of fuel tanks on auxiliary 
equipment that is mounted on CMVs is typically very small, generally 
not exceeding 5 gallons, which minimizes the consequences of

[[Page 57930]]

fires due to fuel supplied via gravity or syphon-fed systems on such 
equipment.
    As CMW notes in its application, if the exemption is not granted, 
CMVs with auxiliary equipment that use gravity or syphon-fed fuel 
systems need to be modified to (1) remove the gravity and syphon-fed 
fuel systems, (2) mount fuel tanks near the auxiliary equipment's 
internal combustion engine, and (3) install fuel pumps to deliver fuel 
to the auxiliary equipment in order to comply with 49 CFR 393.65(d). 
FMCSA agrees with CMW that the risk of fires from the use of gravity or 
syphon-fed fuel systems used on auxiliary equipment is minimal, 
especially given that the auxiliary equipment typically operates only 
when the CMV is not operating on the highway.
    FMCSA acknowledges the concern of the commenter who noted that the 
auxiliary equipment may be operated while the vehicle is in motion, and 
that it would be very difficult for FMCSA to enforce a prohibition 
against such use. However, FMCSA is unaware of any situations in which 
motor carrier operations require the auxiliary equipment to operate 
while the vehicle is in motion. Instead, and as stated earlier, FMCSA 
believes that most auxiliary equipment that is permanently mounted to a 
CMV utilizing small, commercially available internal combustion engines 
(such as small pumps) is typically used to perform work-related 
functions at various jobsites and when the CMV is stationary and no 
longer operating on the highway.

FMCSA Decision

    FMCSA has evaluated the CMW exemption application, and the comments 
received. Based on the discussion above, FMCSA believes that allowing 
the use of gravity or syphon-fed fuel systems for auxiliary equipment 
installed on or used in connection with CMVs that operate only when the 
CMV is not operating on the highway 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 September 16, 2020 and ending September 16, 2025. During the 
temporary exemption period, motor carriers will be allowed to use 
gravity or syphon fed fuel systems for auxiliary equipment installed on 
or used in connection with CMVs that operate only when the CMV is not 
operating on the highway.
    The exemption will be valid for 5 years unless rescinded earlier by 
FMCSA. The exemption will be rescinded if: (1) Motor carriers operating 
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(e) and 31315(b).
    Interested parties possessing information that would demonstrate 
that motor carriers operating CMVs allowing the use of gravity or 
syphon fed fuel systems for auxiliary equipment installed on or used in 
connection with CMVs that operate only when the CMV is not operating on 
the highway is not achieving the requisite statutory level of 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 
CMVs operating under the exemption. States may, but are not required 
to, adopt the same exemption with respect to operations in intrastate 
commerce.

James W. Deck,
Deputy Administrator.
[FR Doc. 2020-20440 Filed 9-15-20; 8:45 am]
BILLING CODE 4910-EX-P