Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2013-0314]

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

# ACTION:

Notice of final disposition.

# SUMMARY:

The Federal Motor Carrier Safety Administration (FMCSA) announces its decision to grant a limited 2-year exemption to Van Hool N.V. and Coach USA (Van Hool/Coach USA) that will allow Coach USA/Megabus to operate double deck motorcoaches constructed with a sleeper berth than has an exit that does not meet the minimum dimensional requirements specified in the Federal Motor Carrier Safety Regulations (FMCSRs). Section 393.76(c)(1) of the FMCSRs requires sleeper berths installed after January 1, 1963 to have an exit that is at least 18 inches high and 36 inches wide. The exemption will allow Coach USA/Megabus to operate double deck motorcoaches with an exit area from the sleeper berth that, while not meeting the specified dimensions, is only slightly smaller in overall size from what is required in the FMCSRs. FMCSA believes that permitting the reduced exit area size will maintain a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption.

# DATES:

This exemption is effective from October 10, 2014 until October 10, 2016.

# FOR FURTHER INFORMATION CONTACT:

Mr. Luke W. 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.

# 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 the Federal Motor Carrier Safety Regulations (FMCSRs). 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                           ( print page 61373)                        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 2 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)).                

## Van Hool/Coach USA Application for Exemption

Van Hool/Coach USA applied for an exemption from 49 CFR 393.76(c)(1) to allow Coach USA/Megabus to operate double deck motorcoaches with a sleeper berth exit which meets the requirements of those sleeper berths installed before January 1, 1963. Section 393.76(c)(1) of the FMCSRs requires that, for sleeper berths installed after January 1, 1963, the exit must be a doorway or opening at least 18 inches high and 36 inches wide. In its application, Van Hool/Coach USA states: 

Van Hool and Coach USA are making this request because we jointly developed a double deck motorcoach with sleeper berths for passengers (hereafter referred to as sleeper coach) where in order to meet the driver hours of service requirements for the routes planned for this sleeper coach, a sleeper berth must be provided for a 2nd driver. The designed sleeper berth compartment in the sleeper motor coach meets and exceeds the minimum dimensional requirements for the actual sleeper berth, however due to the limited available locations to place the sleeper berth within the confines of the motorcoach, it is requested that the entry/exit to the sleeper berth be allowed to meet the dimensional requirements for those sleeper berths manufactured/installed before January 1, 1963. The entry/exit of the sleeper berth (as currently designed) has a maximum area of 606 square inches, which is sufficient area to contain an ellipse having a major axis of 25 inches and a minor axis of 16 inches, which was the requirement for sleeper berths installed prior to January 1, 1963. 

Van Hool/Coach USA states that whereas the pre-January 1, 1963, exit dimension requirements accommodated all types of commercial motor vehicles, the current language of Section 393.76(c)(1) “is designed to fit sleeper berths in commercial trucks” and does “not take into account the limited space available on a motorcoach for utilization of a sleeper berth.”

## Comments

                    On August 6, 2013, FMCSA published notice of the Van Hool/Coach USA application and requested public comment (78 FR 47817). Advocates for Highway and Auto Safety (Advocates) pointed out that the FMCSA had failed to include a copy of the Van Hool/Coach USA application in the docket for public inspection as required by statute and regulation. The Agency placed a copy of the Van Hool/Coach USA application in the docket, and published a notice in the                     **Federal Register**                     on February 14, 2014 (78 FR 9035) announcing the reopening of the comment period for 15 days. The Agency received four comments.                

1. Advocates stated “The reduced size of the major axis of the sleeper berth entry/exit portal from 36 inches to 24 inches results is a significant reduction of a critical dimension for egress, even if it does not necessarily reduce the overall area of the portal dramatically. Reducing the major axis by one-third could impede the ability of a driver to respond in a safety emergency . . . Finally, it is likely that the pre-Jan. 1, 1963 entry/exit dimensions were considered so restrictive and tight for drivers who needed to squeeze into or out of the sleeper berth that the major axis of the portal was enlarged significantly, by 50 percent, from 24 to 36 inches. Advocates believes that even the current dimensions of the entry/exit portal (not to mention the sleeper berth itself) are exceedingly narrow and should be further enlarged, not reduced.”

*FMCSA response:*                     FMCSA personnel inspected a Van Hool/Coach USA double deck motorcoach, and took physical measurements of a prototype of the proposed sleeper berth entry/exit area. The effective sleeper berth entry/exit area is a rectangle, 27 inches wide by 26 inches in height, with a smaller non-useable corner in the lower right side measuring 11 inches in height by 8 inches in width, resulting in a total sleeper berth entry/exit area of 614 square inches. While this is a nominal reduction in access area—approximately 5 percent—compared to the current requirements (a rectangular area 18 inches high and 36 inches wide = 648 square inches), it is significantly larger—more than double—than the pre-January 1, 1963 requirements (an ellipse having a major axis of 24 inches and a minor axis of 16 inches = 301.6 square inches).                

                    Entry into and exit from the prototype sleeper berth was performed by both FMCSA and Coach USA personnel during the vehicle inspection. These representatives were both adult males, approximately the size/weight of the Hybrid III 95th percentile male anthropometric test device that is used worldwide for the evaluation of automotive and military safety restraints, and particularly for seat belt integrity testing.[1]                                          Both representatives were easily able to enter and exit the prototype sleeper berth, and each found that the 26-inch height of the prototype sleeper berth entry/exit was much easier to access than a sleeper berth meeting the currently-permitted minimum allowable height of 18 inches despite the reduction in overall width of the prototype opening.                

During the inspection of the prototype, FMCSA also found that Van Hool/Coach USA has designed and included an additional emergency exit in the sleeper berth that provides direct access to the exterior of the motorcoach. This additional exit is 26 inches wide and 26.5 inches high (689 square inches), which, while although it does not meet the specific dimensional requirements of the current standard, is larger in area than the current minimally compliant opening.

While FMCSA acknowledges that Van Hool/Coach USA did not present a specific safety study providing an analysis of the safety impacts of the requested exemption, the Agency believes that the 9-inch reduction in the minimum width of the entry/exit of the sleeper berth from the interior of the motorcoach does not degrade the level of safety for a driver exiting or entering the sleeper berth, especially given that the measured height of the prototype entry is 8 inches taller than the minimum allowable height of 18 inches. FMCSA also notes that Van Hool/Coach USA has provided a secondary emergency exit to the exterior of the vehicle.

                    2. Mr. Lawrence Hanley of the Amalgamated Transit Union (ATU) submitted comments opposing the use of sleeper berths generally, but did not provide any comments specifically relating to the reduced size of the exit from the sleeper berth that is the subject of this exemption application.                          ( print page 61374)    

*FMCSA Response:*                     The Van Hool/Coach USA application only requests an exemption from the requirements of section 393.76(c)(1) of the FMCSRs relating to the dimensions of the entry/exit into the sleeper berth. The Van Hool/Coach USA prototype sleeper berth fully conforms to all other requirements pertaining to sleeper berths in 49 CFR 393.76.                

3. Mr. John Oakman, Sr. Vice President of Coach USA/Megabus commented in support of the application, stating “With this exemption we will be able to travel with two drivers, while one is driving the other will be able to be in a legal sleeping berth, thus giving us a longer safer distance of operation.”

4. Mr. Tim Wayland, President and Chief Operating Officer of ABC Companies commented in support of the application, stating “Approving this exemption would allow Coach USA to fulfill its obligations as an operator towards its drivers in meeting the hours of service requirements. Approval of this exemption will also increase the number of models available to the traveling public. Increasing the number of models available to the traveling public will result in increased ridership, less traffic congestion and road wear and tear plus positive effects on the environment such as lower emissions and consumption of natural resources.”

## FMCSA Decision

Based on its evaluation of the application for an exemption, FMCSA grants the Van Hool/Coach USA exemption application. The Agency believes that the safety performance of motor carriers operating the subject double deck motorcoaches during the 2-year exemption period will likely achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption. While the proposed entry/exit does not meet the specific dimensional requirements of section 393.76(c)(1) of the FMCSRs, (1) the overall area of the proposed entry/exit is only slightly smaller than that which is required, and (2) FMCSA was able to confirm during a physical examination of the double deck motorcoach that operators are able to easily enter/exit the proposed sleeper berth. Additionally, Van Hool/Coach USA has designed and installed a second emergency exit in the sleeper berth that is 26 inches wide and 26.5 inches high that provides direct access to the exterior of the vehicle. The Agency hereby grants the exemption for a two-year period, beginning October 10, 2014 until October 10, 2016.

## Terms and Conditions for the Exemption

During the temporary exemption period, Coach USA/Megabus motorcoaches can be legally operated using the reduced sleeper berth entry/exit dimensions. The motorcoaches must be constructed using the entry/exit configuration as depicted in the application. FMCSA encourages any party having information that Van Hool/Coach USA, in utilizing this exemption, is not achieving the requisite level of safety immediately to notify the Agency. If safety is being compromised, or if the continuation of the exemption is not consistent with 49 U.S.C. 31315(b) and 31136(e), FMCSA will take immediate steps to revoke the exemption.

## Preemption

In accordance with section 381.600 of the FMCSRs, during the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with or is inconsistent with this exemption with respect to a person operating under the exemption.

Issued on: October 1, 2014.

T.F. Scott Darling III,

Acting Administrator.

# Footnotes

1.                             The Hybrid III 95th percentile male dummy is 6′2″ tall and weighs 223 pounds.                    
        Back to Citation      

[FR Doc. 2014-24290 Filed 10-9-14; 8:45 am]

BILLING CODE 4910-EX-P