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Notice

Hours of Service of Drivers: Dart Transit Company Application for Exemption

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Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of application for exemption; request for comments.

SUMMARY:

FMCSA has received from Dart Transit Company (Dart) an application for an exemption from certain commercial motor vehicle driver hours-of-service provisions of the Federal Motor Carrier Safety Regulations. Dart requests an exemption for 200 of its owner-operators from the prohibition against driving after the 14th hour of coming on-duty, following 10 consecutive hours off-duty, and the requirement that drivers using two sleeper-berth periods to accumulate the equivalent of 10 consecutive hours off-duty spend at least 8 but less than 10 consecutive hours in the sleeper-berth during one of those two periods. As requested by Dart, exempt drivers would be allowed to drive up to 11 hours within a 24-hour period between 3 a.m. one day and 3 a.m. the next day, be required to complete a minimum of 6 consecutive off-duty or sleeper-berth hours between 9 p.m. and 9 a.m., and complete additional periods of off-duty or sleeper-berth time to total at least 10 hours of rest within any “floating” 24-hour period. Dart would implement a detailed, performance-based Fatigue Risk Management System to help prevent overall driver fatigue, and require the use of Electronic On-Board Recorders. Dart believes the terms and conditions of the exemption would ensure that the level of safety will be equivalent to or greater than the level of safety that would be obtained absent the exemption. FMCSA requests public comment on Dart's application for exemption.

DATES:

Comments must be received on or before December 26, 2007.

ADDRESSES:

You may submit comments identified by Federal Docket Management System Number FMCSA-2007-0056 by any of the following methods:

  • Web site: www.regulations.gov. Follow the instructions for submitting comments on the Federal electronic docket site.
  • Fax: 1-202-493-2251.
  • Mail: Docket Management Facility, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
  • Hand Delivery: Ground Floor, Room W12-140, DOT Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays.

Instructions: All submissions must include the Agency name and docket number. For detailed instructions on submitting comments and additional information on the exemption process, see the Public Participation heading below. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading below.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to the ground floor, room W12-140, DOT Building, New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays.

Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://www.regulations.gov. Start Printed Page 66022

Public participation: The http://www.regulations.gov Web site is generally available 24 hours each day, 365 days each year. You can get electronic submission and retrieval help and guidelines under the “help” section of the http://www.regulations.gov Web site and also at the DOT's http://docketsinfo.dot.gov Web site. If you want us to notify you 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.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Mr. Richard Clemente, FMCSA Driver and Carrier Operations Division; Office of Bus and Truck Standards and Operations; Telephone: 202-366-4325. E-mail: MCPSD@dot.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) amended 49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from motor carrier safety regulations. Under its regulations, the Federal Motor Carrier Safety Administration (FMCSA) must publish a notice of each exemption application 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 the conducting of any safety analyses. The Agency must also provide an opportunity for public comment on the application.

The Agency then 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 regulation (49 CFR 381.305). The decision of the Agency must be published in the Federal Register (49 CFR 381.315(b)) with the reason for denying or, in the alternative, the specific person or class of persons receiving the exemption, and the regulatory provision or provisions from which exemption is granted. The notice must also specify the effective period of the exemption (up to 2 years), and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)).

Application for Exemption

Dart Transit Company (Dart) is a for-hire motor carrier headquartered in Eagan, Minnesota. Dart and its affiliated companies have provided truckload service throughout the United States and Canada for over 70 years. It employs over 2,500 owner-operators with nearly the same number of power units.

Dart requested an exemption to allow 200 long-haul and regional independent owner-operators—whom they refer to as “Exempt Operators” (EOs)—to be exempt from certain hours-of-service (HOS) provisions in 49 CFR part 395 of the Federal Motor Carrier Safety Regulations. There would be turnover within the exempt group of drivers; therefore, the exemption request is not for 200 specific drivers, but for a pool of up to 200 EOs to participate at any given time. None of these EOs would operate as team drivers.

Dart states that its exemption request is based on the results of a fatigue-risk assessment of its operation, which indicated that the current HOS “14-hour rule” and sleeper-berth (S/B) provisions interfere with Dart drivers” ability to obtain good-quality nocturnal sleep. Dart acknowledges that provisions of its exemption request “* * * may not be acceptable or feasible for other trucking companies.” Dart is specifically requesting an exemption from the following:

  • The “14-hour rule” [49 CFR 395.3(a)(2)] which prohibits drivers of property-carrying commercial motor vehicles (CMVs) from driving after the 14th hour after coming on duty. Under the exemption, Dart would restrict its EOs to no more than 11 hours of driving time between 3 a.m. of one day and 3 a.m. the following day; drivers would not be required to complete the driving time within 14 consecutive hours of the time they begin work.
  • The S/B provision [49 CFR 395.1(g)(1)(ii)(A)(1) and (2)] requires drivers of property-carrying CMVs to have a period of at least 8 but less than 10 consecutive hours in a S/B, and a separate period of at least 2 but less than 10 consecutive hours either in the S/B, off duty, or any combination thereof if they are using an S/B to accumulate the equivalent of 10 consecutive hours off duty. Dart's exemption request would not require EOs to use an S/B, but would require them to spend a minimum of 6 consecutive off-duty or S/B hours between 9 p.m. of one day and 9 a.m. of the following day, rather than requiring 10 consecutive hours of off-duty time with the time of day unspecified. Dart notes in its exemption application that the 6-hour “nocturnal rest rule” is a minimum requirement, as drivers will often sleep 7-8 hours, especially when the core sleep requirement is at the preferred circadian phase.
  • Dart's EOs would be required to take additional periods, either off duty or in the S/B, at times most conducive to getting a good-quality nap or sleep during their rest breaks, so that they would have a total of at least 10 hours of opportunity for rest during any consecutive 24-hour period. This 24-hour period would not be on a midnight to midnight or other specified cycle—it could be for any 24 consecutive-hour time period (i.e., it may be referred to as a “floating” 24-hour period).

Briefly summarized, the “key” provisions of the Dart exemption application request are as follows:

  • The EO will have a minimum of 10 total hours of off-duty time for any “floating” 24-hour period.
  • The EO will be limited to a maximum of 11 hours of driving time in the 24-hour period from 3 a.m. one day to 3 a.m. the following day.
  • The EO will not have to complete his or her 11 hours of driving time within 14 consecutive hours of coming on-duty.
  • The EO will be required to take a minimum off-duty period of at least 6 consecutive hours between 9 p.m. one day to 9 a.m. the following day. This 6-hour minimum period could be spent off-duty, in the S/B, or any combination of both.

Dart states that while operating under the current HOS rules, it has found that the two specific rule provisions—the “14-hour rule” and “split S/B rule”—frequently interfere with the ability of its over-the-road drivers to obtain good-quality sleep and deliver shipments in a safe and timely fashion. It believes the requirement to not drive after the 14th hour of coming on-duty on many occasions “penalizes” drivers who stop to take a nap or a sleep period of less than 8 hours, even if this is at night and it is the most sensible thing, according to Dart, to do to reduce the fatigue risk. Dart believes that drivers are given an “unwise incentive” under the current rules to continue driving because any time spent sleeping after coming on duty counts against their 14-hour duty period—except a minimum of at least 8 hours in the S/B—and may prevent them from delivering their shipment on schedule.

Dart says that the current split S/B rule encourages drivers who have been on duty at night to attempt to obtain all or most of their sleep during the daytime hours when they are least likely to obtain good-quality or long-duration sleep. Dart believes that not only does strict compliance with these two provisions interfere with sleep planning, but also has an effect on which shipments a driver can deliver in a timely fashion. Start Printed Page 66023

For more details on Dart's request, a copy of their exemption application is included in the docket identified at the beginning of this notice. The application contains details on actual business trip scenarios and other relevant information in support of the application. Copies of all scientific reports and documents submitted by Dart in support of its application for an exemption are also included in the docket for this notice.

Dart states that to provide a superior level of safety, it will implement a program referred to as its Fatigue Risk Management System (FRMS), which is an integral part of Dart's safety management system that ensures that the risks of driver loss of alertness, inattention and chronic fatigue are minimized using scientifically validated methods. Every participating driver would be subject to monitoring and correcting his or her fatigue risk using this model, and there would be advanced fatigue mitigation education for every exempt driver and the fleet managers, sleep disorder screening, and the reporting of all qualifying safety events to FMCSA. The purpose of the FRMS is to provide a protective environment around the EOs that will ensure there are no risks as the restrictions provided by the “14-hour rule” and “split S/B rule” would be withdrawn.

Dart's FRMS would include the following four core elements:

  • A system for duty-rest scheduling which provides for improved sleep opportunities when compared to the current regulations.
  • A comprehensive education program for EOs and managers that would educate, test, and certify them for comprehension in the following areas: (1) Basic sleep and fatigue physiology; (2) managing an alert trucking lifestyle; (3) rules of the exemption, including electronic logging; and (4) fatigue risk scores and how to improve the score.
  • A set of standards for the EO's work and sleep environment; and
  • Procedures to screen for fitness for duty related to sleep disorders.

Dart's four core components of fatigue risk management are supported by a management structure that provides for the following:

  • Oversight of the FRMS by a Dart Fatigue Risk Management Steering Committee.
  • A Fatigue Risk Management Policy that provides a comprehensive set of guidelines for promoting the alertness, sleep and health of the EOs.
  • A daily process of monitoring and measuring fatigue risk and the safety of the EOs, which would include electronic on-board recorders (EOBRs) on all units using the exemption.
  • The daily analysis of driver fatigue risk using commercial fatigue-risk software.
  • The daily transmission of a “fatigue risk score” transmitted to each EO and fleet manager.
  • The regular assessment of progress in minimizing fatigue-risk scores.
  • Safety records maintenance.
  • Monthly reporting of fatigue risk management and safety performance to the FMCSA.

Conversely, Dart believes that the potential impacts of not obtaining the exemption include the following:

  • The ability to improve the alertness and safety of its drivers would be greatly limited because implementing the minimum 6 hours of continuous nocturnal rest without the “14 hour clock” exemption would make the recruitment of safe drivers unfeasible, and the satisfaction of customer delivery requirements impossible;
  • The company would be unlikely to consider the introduction of EOBRs because it would be difficult to recruit quality owner-operators if it required EOs to install and be monitored by EOBRs;
  • Dart's drivers would on occasion find it economically disadvantageous to stop for a required 6 overnight hours, and therefore have to operate without sleep overnight and risk impaired sleep during daytime rest in order to comply with the current HOS rules; and
  • Dart would not be able to accept certain shipments, which could be safely delivered by alert drivers, from its customers only because Dart would be in violation of the “14-hour clock” and “split S/B rule.”

Request for Comments

In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comment on Dart's application for an exemption from the “14-hour rule” and split S/B provisions in 49 CFR Part 395. The Agency will consider all comments received by close of business on December 26, 2007. 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 comment closing date in the public docket, and will consider them to the extent practicable.

Start Signature

Issued on: November 9, 2007.

Larry W. Minor,

Associate Administrator for Policy and Program Development.

End Signature End Supplemental Information

[FR Doc. E7-22881 Filed 11-23-07; 8:45 am]

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