[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: [email protected]. 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

[[Page 21918]]

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 [email protected].

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