Hours of Service of Drivers: McKee Foods Transportation, LLC, Application for Exemption |
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James A. Mullen
Federal Motor Carrier Safety Administration
20 April 2020
[Federal Register Volume 85, Number 76 (Monday, April 20, 2020)]
[Notices]
[Pages 21916-21918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08207]
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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 renew McKee Foods
Transportation, LLC's (MFT) exemption from the hours-of-service (HOS)
regulation pertaining to the use of a sleeper berth. Current HOS rules
require that all sleeper-berth rest regimens include, in part, the
regular use of a sleeper-berth period for at least 8 hours--combined
with a separate period of at least 2 hours, either in the sleeper
berth, off duty, or some combination of both--to gain the equivalent of
at least 10 consecutive hours off duty. The exemption enables MFT team
drivers to take the equivalent of 10 consecutive hours off duty by
splitting sleeper-berth time into two periods totaling 10 hours,
provided neither of the two periods is less than 3 hours. FMCSA has
analyzed the exemption application and the public comments and has
determined that the exemption, subject to the terms and conditions
imposed, will achieve a level of safety that is equivalent to, or
greater than, the level that would be achieved absent such exemption.
DATES: The exemption is effective April 20, 2020 and expires April 20,
2025.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; Telephone: (202) 366-4225. Email: MCPSD@dot.gov. If
you have questions on viewing or submitting material to the docket,
contact Docket Services, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to www.regulations.gov and insert
the docket number, FMCSA-2014-0071, in the ``Keyword'' box, and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document to review. If you do not have access to the internet, you
may view the docket online by visiting the Docket Management Facility
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant
exemptions from certain parts of the Federal Motor Carrier Safety
Regulations (FMCSRs). 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
[[Page 21917]]
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 Agency's
decision 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 (up to 5
years) and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).
III. MFT's Request for a Renewal
MFT requested a renewal of its exemption from the sleeper berth
provision in 49 CFR 395.1(g)(1)(ii)(A)(1-2). The exemption renewal
would allow MFT team drivers to continue to take the equivalent of 10
consecutive hours off duty by splitting sleeper berth time into two
periods totaling 10 hours, provided neither of the two periods is less
than 3 hours. The application for a renewal is available for review in
the docket referenced at the beginning of this notice.
FMCSA granted MFT a one-year exemption on March 27, 2015 [80 FR
16503]. On April 20, 2016 [81 FR 23349] the Agency extended its
expiration date to March 27, 2020, in response to Section 5206(b)(2)(A)
of the ``Fixing America's Surface Transportation Act'' (FAST Act). The
statute extended the expiration date of hours-of-service (HOS)
exemptions in effect on the date of enactment of the FAST Act to 5
years from the date of issuance of the exemptions.
IV. Method To Ensure an Equivalent or Greater Level of 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. To ensure an equivalent level of safety, MFT
offers the following safeguards: (1) 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 each weekend. This is in addition to
home time during the week; (2) All tractors are equipped with speed
limiters; (3) Drivers will continue using electronic logging devices
(ELDs) to track their duty time and HOS compliance; (4) 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 in the
sleeper berth; and (5) Behavior-based event data is monitored from the
ELD to enhance safety measures to help reduce the probability of
accidents on the road.
MFT believes that by allowing its drivers to exercise flexibility
in their sleeper-berth requirements, the drivers experience more
quality rest. MFT notes that during the last five years it has
witnessed an improved physical state upon completion of drivers' trips.
The short sleep-berth periods have allowed for more flexible work
patterns, allowing them the opportunity for rest periods when they need
it.
V. Public Comments
On January 30, 2020, FMCSA published notice of MFT's application
and requested public comment [85 FR 5532]. The Agency received eight
comments. The Truckload Carriers Association (TCA), and six other
individual commenters filed in support of MFT's request for renewal.
TCA supported the exemption request, writing ``time and again, our
drivers have iterated the importance of stopping the 14-hour clock so
that they can take a break or nap when they are tired. Giving fatigued
drivers the confidence to stop driving, by providing them the option to
stop their on-duty clock, will lead to safer and more alert operations
of commercial trucks . . . . McKee Foods has been operating safely
under its exemption for the past 5 years, showing that this split-sleep
configuration has allowed for drivers to obtain adequate rest and has
provided for a safer environment on the roadways.'' Other commenters
supported granting the same sleeper-berth provisions to all other
trucking companies' team drivers. Another supporting commenter added
that MFT was recognized as a safe operation for repeat safety awards
they had received from their State trucking association the past two
years. A one opposing commenter said that MFT should operate under the
same HOS rules as everyone else--referencing the upcoming HOS final
rule which includes revised sleeper-berth provisions allowed for HOS
compliance.
VI. FMCSA Response and Decision
The FMCSA has determined that granting MFT's its exemption renewal
will likely achieve a level of safety that is equivalent to, or greater
than, the level of safety achieved without the exemption [49 CRR
381.305(a)]. The FMCSA reviewed the MFT's application, comments to the
docket, and MFT's safety record from March 2015- March 2020. The safety
record reflects 47 reportable accidents; of which only 15 reported
injuries with no fatalities. The original exemption granted to MFT has
not had an adverse effect on the applicant's Hours of Service or Crash
Safety Measurement System (SMS) scores. The applicants SMS scores
reflect 0.07 for the HOS violation rate and 0.08 for Crash.
VII. Terms and Conditions for the Exemption
Extent of the Exemption
The team drivers employed by MFT are provided a limited exemption
from the sleeper-berth requirements of 49 CFR 395.1(g)(1)(ii)(A)(1-2)
to allow these drivers to split sleeper-berth time into two periods
totaling at least 10 hours, provided neither of the two periods is less
than 3 hours in length. While operating under the granted exemption,
MFT team drivers are subject to the following terms and conditions:
Every week, all transportation operations will shut down
one hour prior to sundown on Friday until one hour after sundown on
Saturday;
All tractors are equipped with speed limiters;
Drivers will use ELDs to track their duty time and HOS
compliance;
Drivers are limited to 10 hours of driving;
MFT will monitor behavior-based event data via ELD; and
MFT drivers must have a copy of this notice in their
possession while operating under the terms of the exemption. This
notice serves as the exemption document and must be presented to law
enforcement officials upon request.
The carriers and drivers must comply with all other requirements of
the Federal Motor Carrier Safety Regulations (49 CFR parts 350-399).
Preemption
In accordance with 49 U.S.C. 31315(d), during the period this
exemption is in effect, no State shall enforce any law or regulation
that
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conflicts with or is inconsistent with this exemption with respect to a
firm or person operating under the exemption.
Notification to FMCSA
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 include the
following information:
(a) Date of the accident;
(b) City or town, and State, in which the accident occurred, or
closest to the accident scene;
(c) Driver's name and license number;
(d) Vehicle number and State license number;
(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
(k) The driver's total driving time and total on-duty time of the
CMV driver at the time of the accident.
Reports filed under this provision shall be emailed to MCPSD@DOT.GOV.
VIII. 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.
James A. Mullen,
Acting Administrator.
[FR Doc. 2020-08207 Filed 4-17-20; 8:45 am]
BILLING CODE 4910-EX-P