Hours of Service of Drivers: DPN USA, LLC dba Matrix Medical Network; Application for Exemption

James W. Deck
Federal Motor Carrier Safety Administration
13 October 2020

[Federal Register Volume 85, Number 198 (Tuesday, October 13, 2020)]
[Notices]
[Pages 64612-64613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22560]



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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0240]


Hours of Service of Drivers: DPN USA, LLC dba Matrix Medical 
Network; Application for Exemption

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

ACTION: Notice of final disposition; denial of application.

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SUMMARY: FMCSA announces its decision to deny an application for an 
exemption from the hours-of-service (HOS) provisions submitted by DPN 
USA, LLC, doing business as Matrix Medical Network (Matrix). Matrix 
requested an exemption to allow its employee-drivers known as ``Mobile 
Team Leads'' to have a 16-hour window within which to operate CMVs 
during their work shift and to return to work with less than the 
mandatory 10 hours off duty. The Agency has concluded that the terms 
and conditions of the exemption would not achieve a level of safety 
equivalent to or greater than would be achieved by compliance with the 
HOS rules.

DATES: FMCSA denies this application for exemption effective October 
13, 2020.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments, 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 Friday, except Federal holidays. The on-line FDMS is available 
24 hours each day, 365 days each year.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: 202-366-4325. 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-2019-0240'' 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., 
EST., Monday through Friday, except Federal holidays. To be sure 
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Docket Operations.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain 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 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. Request for Exemption

    Under 49 CFR 395.3(a)(1), a driver is prohibited from operating a 
commercial motor vehicle (CMV) without first taking 10 consecutive 
hours off duty. Section 395.3(a)(2) prohibits a driver from operating a 
CMV after the end of the 14th hour after coming on duty.
    Matrix requests a limited exemption for its mobile clinic drivers, 
known as ``Mobile Team Leads,'' from the 10-hour off-duty rule and the 
14-hour driving window. Matrix requests that these employee-drivers be 
permitted to rest for 8 instead of 10 hours, and to operate CMVs during 
a window of 16, instead of 14, hours.
    Matrix reports that it operates a fleet of mobile medical clinics 
used to assist Medicare Advantage organizations. These services 
include, but are not limited to, providing patients with comprehensive 
health assessments and evaluations, and ongoing management of complex 
chronic conditions.
    Matrix explained that it generally hosts patients during 
``events,'' which are usually held two to three times per week. 
Patients are seen at a mobile clinic throughout an event day, usually 
between 7:00 a.m. and 6:00 p.m., but the events do not always end on 
time. Each mobile clinic operates with a minimal crew consisting of (1) 
a Mobile Team Lead, (2) a registered nurse or nurse practitioner, (3) a 
mammography technician, and (4) a medical technician or cardiovascular 
technician. The Mobile Team Lead is an integral part of the healthcare 
service delivery team and has duties akin to those of an office 
manager. In addition, he or she is responsible for driving the mobile 
clinic to and from an event location and the hotel used by the team. 
The proposed exemption would cover approximately 50 Mobile Team Leads 
for the 40 mobile clinics in the applicant's fleet. The exemption, if 
granted, would be used on event days only.
    Matrix explains that patients may cancel or arrive late or that an 
appointment may require additional time with the team, causing an event 
to go beyond 6:00 p.m. Matrix argues that compliance with sections 
395.3(a)(1) and (2) would sometimes require Matrix to cancel patient 
appointments to have enough time to reach the next event location. 
According to the applicant, the need to maximize patient engagement is 
the underlying reason for this exemption request. It would allow an 
event to continue past its scheduled end time and allow the Mobile Team 
Lead to drive the mobile clinic to a hotel that would allow the next 
day's event to begin at 7:00 a.m.

IV. Method To Ensure an Equivalent or Greater Level of Safety

    Matrix argues that an equivalent level of safety would be 
maintained through short driving duration and distances, and driving at 
off-peak commuting times. Matrix believes that an equivalent level of 
safety will be sustained as Mobile Team Leads are trained on fatigue 
awareness and HOS compliance

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expectations, and have completed training programs from both the North 
American Fatigue Management Program and the Commercial Vehicle Training 
Alliance. Matrix states that Mobile Team Leads drive less than one-
sixth of their work day. The rest of their day is spent performing non-
clinical, management, and administrative services. A copy of Matrix's 
application is available for review in the docket for this notice.

V. Public Comments

    On October 31, 2019, FMCSA published notice of this application and 
requested public comment (84 FR 58447). Two comments were submitted. 
Mr. Michael Millard wrote, ``I appreciate the issues that DPN USA, LLC 
faces, however, poor prior planning and neglecting to develop an 
adequate business plan to fulfill its mission is not an excuse to ask 
for leniency in complying with the HOS after the fact. DPN USA, LLC's 
request presents multiple hazards to the public and should be denied.'' 
The Commercial Vehicle Safety Alliance (CVSA) stated:

    If this exemption is granted, CVSA recommends that, as a 
condition of the exemption, all drivers, managers, dispatchers and 
relevant staff be required to complete the North American Fatigue 
Management Program training developed in partnership by FMCSA, 
Transport Canada and industry stakeholders as a comprehensive 
approach for managing fatigue. Required participation in the program 
by all relevant staff will help mitigate the impact on safety the 
additional exposure to fatigue causes.

VI. FMCSA Decision

    The HOS regulations limit when and how long an individual may drive 
to ensure that drivers stay awake and alert and to help reduce the 
possibility of driver fatigue. The Agency reaffirmed the ``core'' HOS 
provisions in the HOS final rule published on June 1, 2020 [85 FR 
33396] increasing flexibility without changing the 10-hour off-duty 
rule or the 14-hour driving window (except during ``adverse driving 
conditions''). FMCSA has reviewed the application and the public 
comments and determined that it would be inappropriate to grant the 
exemption. Matrix did not demonstrate how its CMV operations under such 
an exemption would achieve a level of safety equivalent to, or greater 
than, the level of safety obtained in the absence of the exemption [49 
CFR 381.305(a)]. The applicant did not provide data to support that 8 
hours off duty following a 16-hour driving window would give a driver 
enough time to avoid cumulative fatigue. The exemption application is 
denied.

James W. Deck,
Deputy Administrator.
[FR Doc. 2020-22560 Filed 10-9-20; 8:45 am]
BILLING CODE 4910-EX-P