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Parts and Accessories Necessary for Safe Operation; Application for an Exemption From Kershaw Fruit & Cold Storage Co., Inc. and Kershaw Sunnyside Ranches, Inc.

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Federal Motor Carrier Safety Administration (FMCSA), DOT.


Notice of application for exemption; request for comments.


FMCSA requests public comment on an application for an exemption received from Kershaw Fruit & Cold Storage Co., Inc. and Kershaw Sunnyside Ranches, Inc. regarding the transportation of wooden fruit bins from fields to cold storage and packing facilities. These companies seek the exemption because they believe compliance with the general cargo securement requirements prevents them from using more efficient and effective cargo securement methods. Kershaw Fruit & Cold Storage Co., Inc. and Kershaw Sunnyside Ranches, Inc. believe the alternative cargo securement method that they have historically used would maintain a level of safety that is equivalent to the level of safety achieved without the exemption.


Comments must be received on or before October 16, 2006.


You may submit comments [identified by DOT DMS Docket No. FMCSA-2006-25594] by any of the following methods:

  • Web site: Follow the instructions for submitting comments on the DOT electronic docket site.
  • Fax: 1-202-493-2251.
  • Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
  • Hand Delivery: Room PL-401 on the Plaza Level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
  • Federal eRulemaking Portal: Go to Follow the online instructions for submitting comments.

Instructions: All submissions must include the Agency name and docket number for this notice. Note that all comments received will be posted without change (including any personal information provided) to See the Privacy Act heading for further information.

Docket: For access to the docket and to read background documents or comments received, go to at any time or Room PL-401 on the Plaza Level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. DMS is available 24 hours each day, 365 days each year. If you want to be notified that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments online.

Privacy Act: Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor Federal Register published on April 11, 2000 (65 FR 19477). This statement is also available at

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Mr. Luke W. Loy, Federal Motor Carrier Safety Administration, Office of Bus and Truck Standards and Operations, Start Printed Page 54336Vehicle and Roadside Operations Division (MC-PSV), phone (202) 366-0676, 400 Seventh Street, SW., Washington, DC 20590-0001.

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Section 4007 of the Transportation Equity Act for the 21st Century (TEA-21) (Pub.L. 105-178, June 9, 1998, 112 Stat. 401) amended 49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from motor carrier safety regulations. On August 20, 2004, FMCSA published a final rule (69 FR 51589) implementing section 4007. Under this rule, FMCSA must publish a notice of each exemption request in the Federal Register [49 CFR 381.315(a)]. The Agency must provide the public with 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 the safety analyses and the public comments 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)]. If the Agency denies the request, it must state the reason for doing so. If the decision is to grant the exemption, the notice must specify the person or class of persons receiving the exemption and the regulatory provision or provisions from which an exemption is granted. The notice must also specify the effective period of the exemption (up to two years) and explain the terms and conditions of the exemption. The exemption may be renewed [49 CFR 381.315(c) and 49 CFR 381.300(b)].

The Application for Exemption

Kershaw Fruit & Cold Storage Co., Inc. and Kershaw Sunnyside Ranches, Inc. (Kershaw) are family-owned businesses that grow approximately 35,000 bins of apples each fall. During the harvest period (August-October), Kershaw transports apples from the fields where they are harvested to cold storage facilities and from these cold storage facilities to packing houses in Washington. The apples are transported in wooden bins. Kershaw typically hauls 48-64 bins at a time using either 48- or 40-foot trailers with a 20-foot pup trailer.

Kershaw has applied for an exemption from the tiedown requirements of 49 CFR 393.110. Typically, Kershaw has used corner irons and a series of cables to secure the bins of apples to a trailer for transport, which it contends “* * * has been the accepted procedure for many years in our industry.” The typical method of securement used by Kershaw, consisting of corner irons and longitudinal cables, is now prohibited by 49 CFR 393.110. A copy of the application for exemption and accompanying photographs is included in the docket referenced at the beginning of this notice.

Kershaw states that approximately 10 years ago, plastic bins were introduced into the industry for use as an alternative to the wooden bins that had been used to transport products from the fields to other locations. Kershaw does not own or use any plastic bins. It uses wooden bins exclusively. Kershaw contends that the plastic bins are more prone to slide off trailers under certain conditions while in transit (presumably because of the lower coefficient of friction between the plastic bins and the trailer floor as compared to that between the wooden bins and the trailer floor). While Kershaw notes that plastic bins may slide off trucks “ * * * causing safety concerns and transportation delays * * *,” it states that its “* * * track record with wood bins has been excellent * * *” Consequently, Kershaw has requested an exemption from 49 CFR 393.110 for its drivers who transport wooden fruit bins from fields to cold storage facilities and packing houses, provided the wooden bins are secured by corner irons and cables as has been done in the past.

Kershaw also noted that numerous tiedowns would be required to secure each load under the provisions of 49 CFR 393.110. It contends that the use of these additional tiedowns will result in increased time to secure the load and decreased efficiency during loading and unloading operations. Kershaw states that these time considerations are critical given the nature of its operations, where the “* * * harvest period is critical and time demanding.” In addition, Kershaw notes that tiedowns that are tightened down over the bins of apples and in accordance with the provisions of 49 CFR 393.110 would result in severe damage to the apples and result in a significant loss of product.

Kershaw believes that granting the exemption would not adversely affect safety. The company argues that its drivers have safely transported wooden fruit bins for many years using corner irons and cables to secure the bins to the trailer. Kershaw's commercial motor vehicle (CMV) operators believed that securing their loads of wooden fruit bins in such a manner conformed with the cargo securement requirements in effect prior to the final rule published on September 27, 2002 (67 FR 61212), which went into effect on January 1, 2004. According to Kershaw, approximately 35,000 bins of its apples are transported safely in wooden bins each year during the harvest season. Kershaw claims its CMV owner/operators and drivers can achieve and maintain the same or greater level of safety with the exemption as would be achieved by requiring compliance with 49 CFR 393.110.

FMCSA notes that 49 CFR 393.102(b) requires that “Securement systems must provide a downward force equivalent to at least 20 percent of the weight of the article of cargo if the article is not fully contained within the structure of the vehicle.” While Kershaw's application for an exemption did not specifically address this provision, it does not appear that Kershaw's current load securement technique (utilizing a headerboard and 3/8 inch cables crisscrossed in the front and in the rear with cable running the length of the top row of bins as depicted in the photographs submitted with its application and on file in the docket referenced at the beginning of this notice) satisfies the requirements of this section.

Request for Comments

In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests public comment from all interested persons on Kershaw's application for an exemption from 49 CFR 393.110. FMCSA is also requesting public comment regarding Kershaw's current load securement technique, specifically with respect to the requirements of 49 CFR 393.102(b). It must also be noted that FMCSA can grant an exemption only if it has jurisdiction. The Agency's authority is generally limited to CMV operations in interstate commerce. It is not clear from Kershaw's application whether the apples transported in wooden fruit bins from fields to cold storage and packing facilities are moving in interstate or intrastate commerce. If Kershaw believes the trucking operations for which it requests the exemption are in interstate commerce, it should explain why. Otherwise, FMCSA must reject the application for lack of jurisdiction.

The Agency will consider all comments received before the close of business on the comment closing date indicated at the beginning of this notice. Comments will be available for examination in the docket at the location listed under the ADDRESSES section of this notice. The Agency will file comments received after the Start Printed Page 54337comment closing date in the public docket and will consider them 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 monitor the public docket for new material.

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Issued on: September 6, 2006.

John H. Hill,


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[FR Doc. E6-15224 Filed 9-13-06; 8:45 am]