[Federal Register Volume 71, Number 178 (Thursday, September 14, 2006)]
[Notices]
[Pages 54335-54337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15224]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2006-25594]


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

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

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

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SUMMARY: 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.

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

ADDRESSES: You may submit comments [identified by DOT DMS Docket No. 
FMCSA-2006-25594] by any of the following methods:
     Web site: http://dms.dot.gov. 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 http://www.regulations.gov. 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 
http://dms.dot.gov. See the Privacy Act heading for further 
information.
    Docket: For access to the docket and to read background documents 
or comments received, go to http://dms.dot.gov 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 http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Luke W. Loy, Federal Motor Carrier 
Safety Administration, Office of Bus and Truck Standards and 
Operations,

[[Page 54336]]

Vehicle and Roadside Operations Division (MC-PSV), phone (202) 366-
0676, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

Background

    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

[[Page 54337]]

comment 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.

    Issued on: September 6, 2006.
John H. Hill,
Administrator.
 [FR Doc. E6-15224 Filed 9-13-06; 8:45 am]
BILLING CODE 4910-EX-P