Notice2025-06060
Hours of Service of Drivers: McKee Foods Transportation, LLC, Application for Exemption
Primary source
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Published
April 9, 2025
Effective
April 20, 2025
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
FMCSA announces its final decision to renew the exemption granted to McKee Foods Transportation, LLC (MFT), USDOT #1025678, from the hours-of-service (HOS) regulations pertaining to the use of a sleeper berth. The exemption renewal allows 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 two hours. FMCSA has analyzed the exemption application and the public comments and has determined that the exemption, subject to the terms and conditions set forth below, is likely to achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.
Full Text
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<title>Federal Register, Volume 90 Issue 67 (Wednesday, April 9, 2025)</title>
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[Federal Register Volume 90, Number 67 (Wednesday, April 9, 2025)]
[Notices]
[Pages 15292-15294]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-06060]
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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), Department
of Transportation (DOT).
ACTION: Notice of final disposition; renewal of exemption.
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SUMMARY: FMCSA announces its final decision to renew the exemption
granted to McKee Foods Transportation, LLC (MFT), USDOT #1025678, from
the hours-of-service (HOS) regulations pertaining to the use of a
sleeper berth. The exemption renewal allows 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 two hours. FMCSA has analyzed the exemption
application and the public comments and has determined that the
exemption, subject to the terms and conditions set forth below, is
likely to 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 for the period of April 20, 2025,
through April 20, 2030.
FOR FURTHER INFORMATION CONTACT: Mrs. Pearlie Robinson, Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards, FMCSA; 202-366-4225; <a href="/cdn-cgi/l/email-protection#67170206150b0e02491508050e091408092703081349000811"><span class="__cf_email__" data-cfemail="fd8d989c8f919498d38f929f94938e9293bd999289d39a928b">[email protected]</span></a>. If you
have questions on viewing or submitting material to the docket, contact
Dockets Operations, (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Viewing Comments and Documents
To view comments, go to <a href="http://www.regulations.gov">www.regulations.gov</a>, insert the docket
number ``FMCSA-2014-0071'' in the keyword box, and click ``Search.''
Next, sort the results by ``Posted (Newer-Older),'' choose the first
notice listed, and click ``Browse Comments.''
To view documents mentioned in this notice as being available in
the docket, go to <a href="http://www.regulations.gov">www.regulations.gov</a>, insert the docket number
``FMCSA-2014-0071'' in the keyword box, click ``Search,'' and choose
the document to review. If you do not have access to the internet, you
may view the docket online by visiting Dockets Operations 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., ET, 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 Dockets Operations.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant
exemptions from 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 the applicant's safety analysis. The Agency must 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 absent such exemption, pursuant to the standard in 49 U.S.C.
31315(b)(1). The Agency must publish its decision in the
[[Page 15293]]
Federal Register (49 CFR 381.315(b)). If granted, the notice will
identify the regulatory provision from which the applicant will be
exempt, the effective period, and all terms and conditions of the
exemption (49 CFR 381.315(c)(1)). If the exemption is denied, the
notice will explain the reason for the denial (49 CFR 381.315(c)(2)).
The exemption may be renewed (49 CFR 381.300(b)).
III. Background
Current Regulatory Requirements
FMCSA's HOS regulations in 49 CFR part 395 limit the time
commercial motor vehicle (CMV) drivers may drive and also require
certain off-duty periods to ensure that individuals stay awake and
alert while driving. Section 395.1(g)(1)(ii) allows a driver using the
sleeper berth exception to accumulate the equivalent of at least 10
consecutive hours off duty by taking a combination of either two
periods of sleeper-berth time or a combination of off-duty time and
sleeper-berth time (in both cases totaling 10 hours) if: (1) neither
rest period is shorter than 2 hours; (2) one rest period is at least 7
consecutive hours long; and (3) driving time before and after each rest
period, when added together does not exceed 11 hours driving and does
not violate the 14-hour driving ``window'' limit.
Application for Renewal of Exemption
MFT has requested a renewal of its exemption ``for the maximum
available period'' from the sleeper berth requirements, which
previously were set forth in 49 CFR 395.1(g)(1)(ii)(A)(1-2). FMCSA
revised the sleeper berth provisions in 2020 so that the relevant
requirements are now codified at 49 CFR 395.1(g)(1)(ii)(A) and (B) [85
FR 33396, June 1, 2020]. MFT's application for exemption was described
in a Federal Register notice on July 10, 2024 (89 FR 56787) and will
not be repeated here as the facts have not changed. FMCSA reopened the
public comment period and added to the docket a supplemental document
titled ``McKee Foods Transportation Sleeper Berth Exemption Provisions
Interpretation'' on October 22, 2024 (89 FR 84438).
IV. Equivalent Level of Safety
In its original application, MFT stated 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 reiterates the safeguards it included
with its 2014 application: (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) (previously referred to as electronic on-board recording
devices) 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 of sleeper-berth
time; 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.
V. Public Comments
The Agency received 63 comments, 41 supporting the exemption, 13
opposing it, and 9 neither supporting nor opposing the exemption but
offering general comments about the HOS regulations. The Truck Safety
Coalition (TSC), Citizens for Reliable and Safe Highways (CRASH), and
Parents Against Tired Truckers (PATT) filed joint comments opposing the
exemption. These three organizations noted that FMCSA found in its 2020
HOS rulemaking that short sleeper berth increments were not sufficient
to obtain restorative rest. They also stated that FMCSA had denied a
comparable request in the recent past from Matthew Kilmer (88 FR
43410). They asserted that the safeguards McKee proposed in 2014 are
not sufficient and all carriers are now required to use ELDs. They also
noted that MFT did not share if the speed limiters are required to be
used and at what speed they are set.
Trucking With the Schmitts wrote, ``This request MUST be denied,''
citing a concern that the exemption could ``open the door for a huge
number of similar exemption requests.'' AWM Associates, LLC, shared the
concern that the exemption would cause an influx of similar requests
and suggested that FMCSA should consider revising the sleeper berth
regulations because ``to extend the variation to one carrier is an
economic disadvantage to the remainder of the trucking community.'' An
anonymous individual commented, ``McKee Foods does not have any special
situation, or drivers that somehow need less sleep, to warrant such a
request.''
Other themes in opposition included: (1) the split is not safe; (2)
the HOS rules should be the same for all companies; (3) if McKee's team
drivers are safer using the requested split sleeper berth exemption,
then the HOS rules should be revised to allow all teams to use the same
provisions; and (4) no special rules should be applied to anyone,
companies, corporations or individuals.
The Tennessee Trucking Association (TTA), the National Association
of Manufacturers (NAM), and James Stark were among the commenters who
supported the exemption. TTA said, ``[MFT] have received the Tennessee
Trucking Association Fleet Safety Award the last 7 years. In my opinion
they are very dedicated to safety, and I see no reason why you
shouldn't grant them the HOS exemption again.'' The NAM noted that
``Their [MFT's] April 2024 Driver Out-of-Service Rate is approximately
one-sixth the national average, and their April 2024 DOT Accident Rate
per Million Milles [sic] is more than two-and-a-half times lower than
the national average.'' James Stark said, ``Absolutely allow drivers to
split sleeper berth hours, as they see fit with two periods of no less
than 3 hours per period.''
Other themes in support of the exemption included: (1) exemption
should be implemented nationwide; (2) flexible hours for team driving
are imperative for safety; and (3) all drivers should be allowed the 5/
5 split option.
V. FMCSA Safety Analysis and Agency Decision
In response to the joint comments filed by TSC, CRASH, and PATT,
the Agency is aware that preventing fatigue is a complex process
considering numerous factors such as time of day, amount and timing of
sleep, time awake and time on task. In its 2020 HOS final rule, FMCSA
concluded that there was not sufficient data to support reducing the
longer sleeper berth period to 6 hours (85 FR 33423). FMCSA continues
to lack sufficient data to conclude that a 6/4 or 5/5 sleeper berth
split applied across all motor carrier operations would achieve a level
of safety equivalent to the current regulations. With respect to MFT's
operations, however, MFT has operated under the exemption with specific
terms and conditions, including a 26-hour off duty period every week,
and daily driving time limit of 10 hours, since March 2015. FMCSA has
not observed any adverse safety impact from MFT's operation under the
exemption for 10 years.
With regard to comments about the Agency's denial of Matthew
Kilmer's application, Mr. Kilmer requested an exemption allowing
himself as a driver
[[Page 15294]]
and all other CMV drivers to use a 5/5 sleeper berth split. The Agency
denied the exemption because the applicant failed to explain how he
would likely achieve a level of safety equivalent to the current
regulatory requirements. Unlike Matthew Kilmer's application for
exemption, MFT provided a list of safety protocols. As noted above, MFT
has operated for 10 years under the exemption without adverse safety
impacts.
The Agency reviewed MFT's application, comments to the docket, and
the company's safety record including crashes and inspection data from
April 2020 to December 2024. Since 2015 when the exemption was first
granted, this exemption has not had an adverse effect on MFT's safety
record. FMCSA therefore concludes that renewing the exemption for
another five years, under the terms and conditions listed below, will
likely maintain a level of safety that is equivalent to, or greater
than, the level of safety achieved without the exemption.
VI. Exemption Decision
A. Grant of Renewal of Exemption
This exemption from the requirements of 49 CFR 395.1(g)(1)(ii)(B)
is effective from April 20, 2025, through April 20, 2030, 11:59 p.m.
local time.
B. Applicability of Exemption
This exemption applies to MFT team drivers only. When operating
under this exemption, team drivers employed by MFT are provided a
limited exemption from the sleeper-berth requirements of 49 CFR
395.1(g)(1)(ii)(B) to allow them to split sleeper-berth time into two
periods totaling at least 10 hours, provided neither of the two periods
is less than 2 hours in length (an 8/2, 7/3, 6/4, or 5/5 split). All
other provisions of 49 CFR part 395 continue to apply, including the
calculation provisions in 49 CFR 395.1(g)(1)(iii). The guidance
document dated September 21, 2015, which was posted to the docket with
Document ID FMCSA-2014-0071-0042, no longer applies because it was
based on the 2015 HOS regulations that are no longer in effect.
C. Terms and Conditions
(1) Each week, all MFT transportation operations will shut down
between one hour prior to sundown on Friday and one hour after sundown
on Saturday, allowing drivers using the exemption a minimum 26 hours
off-duty period, in addition to a minimum of two days at home during
the week.
(2) All tractors will be equipped with speed limiters, which must
be used by drivers operating under the exemption.
(3) Drivers are limited to 10 hours of driving time, rather than 11
hours, during the work shift specified in 49 CFR 395.3(a)(1).
(4) MFT will monitor behavior-based event data from the ELD to
enhance safety measures to reduce the probability of crashes.
(5) MFT and its drivers must comply with all other requirements of
the Federal Motor Carrier Safety Regulations (49 CFR parts 350-399).
(6) 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.
(7) MFT may be investigated to evaluate compliance with the terms
and conditions of this exemption, in addition to the FMCSRs.
D. Preemption
In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR
381.600, during the period this exemption is in effect, no State shall
enforce any law or regulation that conflicts with or is inconsistent
with this exemption with respect to a firm or person operating under
the exemption. States may, but are not required to, adopt the same
exemption with respect to operations in intrastate commerce.
E. 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) Name of the exemption: ``MFT''
(b) Date of the accident
(c) City or town, and State, in which the accident occurred, or closest
to the accident scene
(d) Driver's name and license number
(e) Vehicle number and State license number
(f) Number of individuals suffering physical injury
(g) Number of fatalities
(h) The police-reported cause of the accident
(i) Whether the driver was cited for violation of any traffic laws,
motor carrier safety regulations
(j) A printout of the driver's ELD records for the date of the crash
and the prior seven days.
Reports filed under this provision shall be emailed to
<a href="/cdn-cgi/l/email-protection#95d8d6c5c6d1d5d1dac1bbd2dac3"><span class="__cf_email__" data-cfemail="4b06081b180f0b0f041f650c041d">[email protected]</span></a>.
F. Termination
FMCSA does not believe MFT, or the drivers covered by this
exemption, will experience any deterioration of their safety record.
The exemption will be rescinded if: (1) MFT or drivers operating under
the exemption fail 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 objects of 49
U.S.C. 31136(e) and 31315(b).
Sue Lawless,
Assistant Administrator.
[FR Doc. 2025-06060 Filed 4-8-25; 8:45 am]
BILLING CODE 4910-EX-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.