

[Federal Register: November 26, 2007 (Volume 72, Number 226)]
[Notices]               
[Page 66021-66023]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no07-90]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-0056]

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

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

ACTION: Notice of application for exemption; request for comments.

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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: http://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
.


[[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.

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.

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.

[[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.

    Issued on: November 9, 2007.
 Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. E7-22881 Filed 11-23-07; 8:45 am]

BILLING CODE 4910-EX-P
