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Hours of Service of Drivers: McKee Foods Transportation, LLC, Application for Exemption

American Government Special Collections Reference Desk

American Government Trucking

Hours of Service of Drivers: McKee Foods Transportation, LLC, Application for Exemption

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
March 27, 2015

[Federal Register Volume 80, Number 59 (Friday, March 27, 2015)]
[Pages 16503-16506]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-07056]



Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0071]

Hours of Service of Drivers: McKee Foods Transportation, LLC, 
Application for Exemption

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

ACTION: Notice of final disposition; grant of application for 


SUMMARY: FMCSA announces its decision to grant an exemption to McKee 
Foods Transportation, LLC (MFT) from certain provisions of the Agency's 
hours-of-service (HOS) regulations. MFT proposed that its team drivers 
be granted an exemption from the HOS rules pertaining to use of a 
sleeper berth (SB). Current HOS rules require that all SB rest regimens 
include, in part, the use of an SB for at least 8 hours--combined with 
a separate period of at least 2 hours, either in the SB, off-duty or 
some combination of both--to gain the equivalent of at least 10 
consecutive hours off duty. The exemption will allow MFT's team drivers 
to take the equivalent of 10 consecutive hours off duty by splitting SB 
time into two periods totaling 10 hours, provided neither of the two 
periods is less than 3 hours.

DATES: This exemption is effective March 27, 2015 and expires on March 
27, 2016.

FOR FURTHER INFORMATION CONTACT: Mrs. Pearlie Robinson, Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: 202-366-4325, Email: MCPSD@dot.gov, 
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue 
SE., Washington, DC 20590-0001.
    Docket: For access to the docket to read background documents or 
comments submitted to notice requesting public comments on the 
exemption application, go to www.regulations.gov at any time or visit 
Room W12-140 on the ground level of the West Building, 1200 New Jersey 
Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., ET, Monday 

[[Page 16504]]

Friday, except Federal holidays. The on-line Federal document 
management system is available 24 hours each day, 365 days each year. 
The docket number is listed at the beginning of this notice.



    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the Federal Motor Carrier Safety 
Regulations. FMCSA must publish a notice of each exemption request 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 any safety analyses that have been conducted. 
The Agency must also provide an opportunity for public comment on the 
    The Agency reviews safety analyses and public comments submitted, 
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)) with the reasons for denying or granting the application 
and, if granted, the name of the person or class of persons receiving 
the exemption, and the regulatory provision from which the exemption is 
granted. The notice must also specify the effective period and explain 
the terms and conditions of the exemption. The exemption may be renewed 
(49 CFR 381.300(b)).

Request for Exemption

    MFT is a private carrier that sells fresh snack food products under 
the Little Debbie, Sunbelt, and Drake's brands. MFT delivers products 
in interstate commerce to 48 states and parts of Canada from three 
manufacturing distribution centers and one stand-alone distribution 
center. MFT employs approximately 650 drivers, using more than 300 
tractor-trailer combinations. MFT's average driver is on duty 
approximately 35-45 hours per week with the majority of the on-duty 
time split between driving and unloading the trailer. A typical trip 
averages six stops. Some of the trips make backhauls--both private and 
for-hire. The average round trip is about 1,000 miles. A team usually 
delivers two trailer loads per week, with time at home between most 
    MFT states that it operates on a routine weekly cycle. Each 
workweek contains a regular subset of daily cycles dispatching and 
returning long-, medium- and short-range trips. MFT advises that it has 
a constant flow of outbound and inbound trucks that allow it to 
continuously ship fresh-baked goods and return with backhauls of raw 
materials and other for-hire loads. The routine cycles allow most of 
the drivers to have regular schedules. Many of MFT's drivers are off 
duty at least 48 consecutive hours every week while many others are off 
duty at least 72 consecutive hours. MFT's tractors are equipped with 
double-bunk sleepers in the event both drivers need or want to rest at 
the same time. Drivers are allowed to make their own decisions about 
when and where to take short rest breaks based on their personal needs 
and preferences in conformance with current regulatory requirements. 
MFT advises that it takes driver safety, health and wellness seriously, 
and hires well-qualified drivers who go through a comprehensive 
orientation/new hire training program. MFT's trucks are equipped with 
automatic on-board recording devices (AOBRDs) that produce electronic 
records of duty status.
    MFT requested an exemption from the current regulations for its 
delivery shipments and backhaul activity operations to eliminate the 
requirement that SB time include a period of at least 8 but less than 
10 consecutive hours in the SB and a separate period of at least 2 but 
less than 10 consecutive hours either in the SB or off duty, or any 
combination thereof (49 CFR 395.1(g)(1)(ii)(A)(1)). MFT proposed that 
these team drivers be allowed to split SB time into two periods 
totaling at least 10 hours, provided neither of the two periods is less 
than 3 hours in length. The exemption would be limited to team drivers.
    MFT states that the activities of its team drivers involve both 
driving and offloading product to its customers. The drivers average 
approximately 53 hours per week on the road away from home. MFT states 
that approximately 30 percent of this time is spent in the sleeper. MFT 
contends that the experience of its drivers has demonstrated that 
sleeping in a moving vehicle is more difficult than in a stopped truck. 
According to MFT, having the flexibility to switch with a partner 
allows each driver to take advantage of shorter time periods when they 
may feel fatigued. MFT further stated, this will result in a more-
flexible work pattern, allowing both drivers to perform warehouse 
functions together (to reduce driver unloading time and improve 
maneuvering in the warehouse), and improving personal and vehicular 
    MFT states that it is committed to maintaining its outstanding 
safety record by focusing on continuous improvement, promoting 
technologies to enhance safety, conducting thorough inspections and 
having well-communicated policies in place to address both safety and 
compliance-related topics. MFT identified some countermeasures it would 
take to maintain safe operations if the exemption is granted. The 
safeguards include, but are not limited to:
     Every week, all transportation operations shut down one 
hour prior to sundown on Friday until one hour after sundown on 
Saturday, resulting in an automatic minimum 26 hour off-duty home time 
for all drivers in addition to two or three days home time during the 
     All tractors are equipped with speed limiters;
     Drivers use AOBRDs to track their duty time and HOS 
     Drive time is reduced from 11 hours to 10 hours. Team 
drivers are limited to 10 hours of driving prior to completing their 
required 10 hours total SB.
     Behavior-based event data is monitored from the enhanced 
AOBRDs to improve safety measures already in place to help reduce the 
probability of accidents on the road.
    MFT believes that by allowing its team drivers to exercise 
flexibility in their SB requirements, the drivers would experience more 
quality rest. To support its request for the exemption, MFT cited the 
results of an FMCSA-sponsored study entitled ``Investigation of the 
Effects of Split Sleep Schedules on Commercial Vehicle Driver Safety 
and Health.'' \1\ The report noted ``that when consolidated nighttime 
sleep is not possible, split sleep is preferable to consolidated 
daytime sleep.'' (http://ntl.bts.gov/lib/51000/51200/51254/12-003-Split-Sleep_Investigation-of-the-Effects-of-Split-Sleep-Schedules-on-Commercial-Vehicle-Driver-Safety-and-Health-508.pdf)

    \1\ Belenky, G., Jackson, M.L., Tompkins, L., Satterfield, B., 
Bender, A., ``Investigation of the Effects of Split Sleep Schedules 
on Commercial Vehicle Driver Safety and Health,'' FMCSA, Dec. 2012.

    A copy of MFT's application for exemption is available for review 
in the docket for this notice.

Public Comments

    On May 12, 2014, FMCSA published notice of this application, and 
asked for public comment (79 FR 27041). Twelve commenters responded. 
Eight commenters supported the application, three commenters opposed it 
and one individual commented but did not

[[Page 16505]]

indicate whether he supported or opposed the application.
    The three comments opposing the exemption were from two individuals 
and the Advocates for Highway and Auto Safety (Advocates). Mr. Charles 
McKown said, ``I am EXTREMELY opposed.'' Mr. Michael Millard said, 
``The request for an exemption from the HOS sets in motion a slippery 
slope; whereas, if the FMCSA grants the exemption they are indicating 
the current HOS is not suitable for acquiring the needed rest. If FMCSA 
grants the exemption they can expect to be hounded by other motor 
carriers to participate in the exemption or submit a new exemption 
based on the individual carrier's needs. If the exemption is approved 
then it creates problems for MCSAP officers performing roadside 
inspections as the MCSAP officers would have to be trained on how to 
calculate the HOS sleeper berth provision costing the tax payers 
thousands if not hundreds of thousands of dollars in training the MCSAP 
    The Advocates stated that, ``The applicant has provided no 
definitive proof that the proposed alternative HOS, changing the 
sleeper berth requirements to allow sleeper berth periods to be broken 
into two periods of no less than 3 hours, would in any way ensure 
safety or address the agency's concerns regarding acute and cumulative 
fatigue which was the impetus for the requirement.'' The Advocates 
contend that the controls listed by MFT in no way constitute a safety 
analysis on par with that required by statute. Seven comments 
supporting the application were submitted by MFT employees.
    The American Trucking Associations, Inc. (ATA) also supports the 
exemption. The ATA said, ``ATA strongly supports McKee Foods 
Transportation, LLC's (MFT) application for exemption from 49 CFR 
395.1(g)(1)(ii)(A)(1-2). ATA has long contended that the currently 
prescribed sleeper berth rules do not introduce enough flexibility into 
the delicate equation of driver rest, sleep and performance. MFT's 
application for exemption provides FMCSA with an excellent opportunity 
to observe the safety and, perhaps health benefits of allowing 
additional flexibility into sleeper berth utilization and should be 
granted without delay.''
    All comments are available for review in the docket for this 

FMCSA Response to Public Comments and Agency Decision

    Prior to publishing the Federal Register notice announcing the 
receipt of MFT's exemption request, FMCSA ensured that MFT has a 
current USDOT registration, minimum required levels of insurance, and 
is not subject to any ``imminent hazard'' or other out-of-service (OOS) 
orders. The Agency conducted a comprehensive evaluation of the safety 
performance history of the applicant during the review process. As part 
of this process, FMCSA reviewed its Motor Carrier Management 
Information System safety records for MFT, including inspection and 
accident reports submitted to FMCSA by State agencies.
    With regard to Mr. Millard's comments, the Agency does not believe 
that an exemption from the SB requirement is an indication that the 
current HOS is not suitable for acquiring needed rest. An exemption in 
this instance would only provide flexibility of how the 10 hours in the 
SB are split but does not reduce the 10 hour rest requirement. Split SB 
periods were allowed prior to 2003; therefore, many MCSAP officers 
remain familiar with it, and training others can be done economically 
through existing, continuing training methods.
    With regard to the Advocates comments, the Agency believes that the 
FMCSA-sponsored study entitled ``Investigation of the Effects of Split 
Sleep Schedules on Commercial Vehicle Driver Safety and Health'' \2\ 
cited by MFT provides a reasonable basis for an exemption of this type, 
which will enable FMCSA to observe the effects of split sleep in a real 
world context over a substantial time period.

    \2\ Belenky, G., Jackson, M.L., Tompkins, L., Satterfield, B., 
Bender, A.,''Investigation of the Effects of Split Sleep Schedules 
on Commercial Vehicle Driver Safety and Health,'' FMCSA, Dec. 2012.

    The Agency is well aware that preventing fatigue is a complex 
process taking into account numerous factors such as time of day, 
amount and timing of sleep, time awake and time on task. The Agency 
believes that the controls identified in MFT's application, including a 
26-hour off duty period every week, reduction of daily driving time 
from 11 hours to 10 hours and monitoring data from AOBRDs, will ensure 
that safety is not adversely affected.
    The FMCSA has evaluated MFT's application, safety record, and the 
public comments. The Agency believes that MFT will likely achieve a 
level of safety that is equivalent to, or greater than, the level of 
safety achieved without the exemption [49 CFR 381.305(a)], and grants 
the requested exemption covering the operations of team drivers 
employed by MFT.

Terms and Conditions of the Exemption

Period of the Exemption

    This exemption from the requirements of 49 CFR 
395.1(g)(1)(ii)(A)(1-2)) is effective during the period of March 27, 
2015 through March 27, 2016. The exemption will expire on March 27, 
2016, 11:59 p.m. local time, unless renewed.

Extent of the Exemption

    The team drivers employed by MFT are provided a limited exemption 
from the SB requirements of 49 CFR 395.1(g)(1)(ii)(A)(1-2)) to allow 
these drivers to split SB time into two periods totaling at least 10 
hours, provided neither of the two periods is less than 3 hours in 
length. Team drivers will use electronic logging devices to track 
records of duty status; have a minimum 26-hour off-duty period, at 
home, from Friday night to Saturday night; and, be limited to 10 hours 
of driving following their required 10 consecutive hours off duty, or 
the SB equivalent.

Other Conditions

    The exemption is contingent upon MFT maintaining USDOT 
registration, minimum levels of public liability insurance, and not 
being subject to any ``imminent hazard'' or other OOS order issued by 
FMCSA. Each team driver covered by the exemption must maintain a valid 
CDL with the required endorsements, not be subject to any OOS order or 
suspension of driving privileges, and meet all physical qualifications 
required by 49 CFR part 391.


    During the period this exemption is in effect, no State may enforce 
any law or regulation that conflicts with or is inconsistent with the 
exemptions with respect to a person or entity operating under the 
exemptions (49 U.S.C. 31315(d)).

FMCSA Accident Notification

    MFT must notify FMCSA within 5 business days of any accidents (as 
defined by 49 CFR 390.5) involving the operation of any of its CMVs 
while utilizing this exemption. The notification must be by email to 
MCPSD@DOT.GOV, and include the following information:
    a. Date of the accident,
    b. City or town, and State, in which the accident occurred, or 
which is closest to the scene of the accident,
    c. Driver's name and driver's license number,
    d. Vehicle number and State license number,

[[Page 16506]]

    e. Number of individuals suffering physical injury,
    f. Number of fatalities,
    g. The police-reported cause of the accident,
    h. Whether the driver was cited for violation of any traffic laws, 
or motor carrier safety regulations, and
    i. The total driving time and the total on-duty time of the CMV 
driver at the time of the accident.


    The FMCSA does not believe the team drivers covered by the 
exemption will experience any deterioration of their safety record. 
However, should this occur, FMCSA will take all steps necessary to 
protect the public interest, including revocation of the exemption. The 
FMCSA will immediately revoke the exemption for failure to comply with 
its terms and conditions.

    Issued on: March 19, 2015.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2015-07056 Filed 3-26-15; 8:45 am]

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