Parts and Accessories Necessary for Safe Operation; Application for an Exemption From Charles Machine Works, Inc. |
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James W. Deck
Federal Motor Carrier Safety Administration
16 September 2020
[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