Hours of Service of Drivers: McKee Foods Transportation, LLC, Application for Exemption, 16503-16506 [2015-07056]

Download as PDF Federal Register / Vol. 80, No. 59 / Friday, March 27, 2015 / Notices a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. mstockstill on DSK4VPTVN1PROD with NOTICES III. Basis for Renewing Exemptions Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 26 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (65 FR 78256; 66 FR 16311; 67 FR 76439; 68 FR 10298; 68 FR 10301; 68 FR 13360; 68 FR 19596; 69 FR 33997; 69 FR 61292; 69 FR 64806; 70 FR 2701; 70 FR 2705; 70 FR 7543; 70 FR 12265; 70 FR 16886; 70 FR 16887; 72 FR 184; 72 FR 5489; 72 FR 11425; 72 FR 11426; 72 FR 12666; 72 FR 18726; 72 FR 25831; 74 FR 7097; 74 FR 8842; 74 FR 11988; 74 FR 11991; 74 FR 15584; 74 FR 15586; 74 FR 21427; 74 FR 21796; 75 FR 77942; 76 FR 5425; 76 FR 21796; 76 FR 25762; 78 FR 22596). Each of these 26 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements. These factors provide an adequate basis for predicting each driver’s ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption. IV. Public Participation and Request for Comments FMCSA encourages you to participate by submitting comments and related materials. Submitting Comments If you submit a comment, please include the docket number for this notice (FMCSA–2000–8398; FMCSA– VerDate Sep<11>2014 20:59 Mar 26, 2015 Jkt 235001 2002–13411; FMCSA–2003–14223; FMCSA–2004–17984; FMCSA–2004– 19477; FMCSA–2005–20027; FMCSA– 2007–27333; FMCSA–2008–0398; FMCSA–2009–0054; FMCSA–2010– 0385), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission. To submit your comment online, got to https://www.regulations.gov and put the docket number, ‘‘FMCSA–2000– 8398; FMCSA–2002–13411; FMCSA– 2003–14223; FMCSA–2004–17984; FMCSA–2004–19477; FMCSA–2005– 20027; FMCSA–2007–27333; FMCSA– 2008–0398; FMCSA–2009–0054; FMCSA–2010–0385’’ in the ‘‘Keyword’’ box, and click ‘‘Search.’’ When the new screen appears, click on ‘‘Comment Now!’’ button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81⁄2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. FMCSA will consider all comments and material received during the comment period and may change this notice based on your comments. Viewing Comments and Documents To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov and in the search box insert the docket number, ‘‘FMCSA–2000–8398; FMCSA–2002– 13411; FMCSA–2003–14223; FMCSA– 2004–17984; FMCSA–2004–19477; FMCSA–2005–20027; FMCSA–2007– 27333; FMCSA–2008–0398; FMCSA– 2009–0054; FMCSA–2010–0385’’ in the ‘‘Keyword’’ box and click ‘‘Search.’’ Next, click ‘‘Open Docket Folder’’ button choose the document listed 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. PO 00000 Frm 00145 Fmt 4703 Sfmt 4703 16503 and 5 p.m., e.t., Monday through Friday, except Federal holidays. Issued on: March 19, 2015. Larry W. Minor, Associate Administrator for Policy. [FR Doc. 2015–07049 Filed 3–26–15; 8:45 am] BILLING CODE 4910–EX–P 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 Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of final disposition; grant of application for exemption. AGENCY: 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 SUMMARY: E:\FR\FM\27MRN1.SGM 27MRN1 16504 Federal Register / Vol. 80, No. 59 / Friday, March 27, 2015 / Notices Friday, except Federal holidays. The online 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: mstockstill on DSK4VPTVN1PROD with NOTICES 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 tractortrailer 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 forhire. 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 VerDate Sep<11>2014 20:59 Mar 26, 2015 Jkt 235001 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 wellqualified 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. PO 00000 Frm 00146 Fmt 4703 Sfmt 4703 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 wellcommunicated policies in place to address both safety and compliancerelated 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 FMCSAsponsored 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.’’ (https:// ntl.bts.gov/lib/51000/51200/51254/12003-Split-Sleep_Investigation-of-theEffects-of-Split-Sleep-Schedules-onCommercial-Vehicle-Driver-Safety-andHealth-508.pdf) 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 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. E:\FR\FM\27MRN1.SGM 27MRN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 80, No. 59 / Friday, March 27, 2015 / Notices 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 VerDate Sep<11>2014 20:59 Mar 26, 2015 Jkt 235001 ensured that MFT has a current USDOT registration, minimum required levels of insurance, and is not subject to any ‘‘imminent hazard’’ or other out-ofservice (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. 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. 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. PO 00000 Frm 00147 Fmt 4703 Sfmt 4703 16505 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, E:\FR\FM\27MRN1.SGM 27MRN1 16506 Federal Register / Vol. 80, No. 59 / Friday, March 27, 2015 / Notices 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] BILLING CODE 4910–EX–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA–2012–0370] Hours of Service (HOS) of Drivers; U.S. Department of Energy (DOE); Application for Renewal of Exemption Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of application for renewal of exemption; request for comments. AGENCY: FMCSA has received an application from the U.S. Department of Energy (DOE) for a renewal of its exemption from the 30-minute rest break provision of the Agency’s hoursof-service (HOS) regulations for commercial motor vehicle (CMV) drivers. DOE currently holds an exemption for the period July 1, 2013, through June 30, 2015, which enables DOE’s contract motor carriers and their employee-drivers engaged in the transportation of security-sensitive radioactive materials to be treated similarly to drivers of shipments of explosives. The exemption renewal would allow these exempted drivers to use 30 minutes or more of ‘‘attendance time’’ to meet the HOS rest break requirements providing they do not perform any other work during the break. FMCSA requests public comment mstockstill on DSK4VPTVN1PROD with NOTICES SUMMARY: VerDate Sep<11>2014 20:59 Mar 26, 2015 Jkt 235001 on the DOE’s application for renewal of the exemption. DATES: Comments must be received on or before April 27, 2015. The proposed exemption renewal would be effective from June 30, 2015 through June 30, 2017. ADDRESSES: You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA– 2012–0370 using any of the following methods: • Federal eRulemaking Portal: Go to www.regulations.gov. Follow the on-line instructions for submitting comments. • Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery or Courier: West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal Holidays. • Fax: 1–202–493–2251. Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to www.regulations.gov, including any personal information included in a comment. Please see the Privacy Act heading below. 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 Federal document management system is available 24 hours each day, 365 days each year. If you want acknowledgment that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line. 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: Mr. Richard Clemente, 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 PO 00000 Frm 00148 Fmt 4703 Sfmt 4703 questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366–9826. 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 Certain motor carriers under contract to the U.S. Department of Energy (DOE) transport ‘‘security-sensitive radioactive materials.’’ DOE requests a renewal of a limited exemption from the hours-ofservice (HOS) regulation pertaining to rest breaks [49 CFR 395.3(a)(3)(ii)] to allow contract driver-employees transporting security-sensitive radioactive materials to be treated the same as drivers transporting explosives, as provided in § 395.1(q). Section 395.1(q) states that operators of CMVs carrying Division 1.1, 1.2, or 1.3 explosives subject to the requirement for a 30-minute rest break in § 395.3(a)(3)(ii) may use 30 minutes or more of ‘‘attendance time’’ to meet the requirement for a rest break. Section 395.1(q) allows drivers who are required by § 397.5 to attend a motor vehicle transporting certain types of explosives but perform no other work, to log at least a half-hour of their ‘‘attendance time’’ toward the break. DOE contends that shipments of security-sensitive radioactive materials require a team of two drivers and the E:\FR\FM\27MRN1.SGM 27MRN1

Agencies

[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.

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

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.'' (https://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 
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.
---------------------------------------------------------------------------

    \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.

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,

[[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.

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]
 BILLING CODE 4910-EX-P
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