Hours of Service of Drivers: McKee Foods Transportation, LLC, Application for Exemption |
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T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
March 27, 2015
[Federal Register Volume 80, Number 59 (Friday, March 27, 2015)]
[Notices]
[Pages 16503-16506]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-07056]
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DEPARTMENT OF TRANSPORTATION
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
exemption.
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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
through
[[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.
SUPPLEMENTARY INFORMATION:
Background
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
request.
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
trips.
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
safety.
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
week;
All tractors are equipped with speed limiters;
Drivers use AOBRDs to track their duty time and HOS
compliance;
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)
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\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.
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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
officers.''
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
notice.
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.
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\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.
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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.
Preemption
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,
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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.
Termination
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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