Notice2022-24383
Hours of Service of Drivers: Application for Exemption; Leland Schmitt, Jr.
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 9, 2022
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
FMCSA announces its decision to deny the application from Leland Schmitt, Jr., requesting an exemption from five provisions of the federal hours of service (HOS) regulations. The applicant requests the exemption for a five-year period and believes that his safe driving record and experience demonstrate an equivalent level of safety. FMCSA analyzed the application and public comments and determined that the exemption would not 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 87 Issue 216 (Wednesday, November 9, 2022)</title>
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[Federal Register Volume 87, Number 216 (Wednesday, November 9, 2022)]
[Notices]
[Pages 67746-67747]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-24383]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2022-0099]
Hours of Service of Drivers: Application for Exemption; Leland
Schmitt, Jr.
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; denial of application for
exemption.
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SUMMARY: FMCSA announces its decision to deny the application from
Leland Schmitt, Jr., requesting an exemption from five provisions of
the federal hours of service (HOS) regulations. The applicant requests
the exemption for a five-year period and believes that his safe driving
record and experience demonstrate an equivalent level of safety. FMCSA
analyzed the application and public comments and determined that the
exemption would not achieve a level of safety that is equivalent to, or
greater than, the level that would be achieved absent such exemption.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; Telephone: 202-366-2722. Email:
<a href="/cdn-cgi/l/email-protection#deacb7bdb6bfacbaf0bdb2bbb3bbb0aabb9ebab1aaf0b9b1a8"><span class="__cf_email__" data-cfemail="a6d4cfc5cec7d4c288c5cac3cbc3c8d2c3e6c2c9d288c1c9d0">[email protected]</span></a>. 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, go to <a href="http://www.regulations.gov">www.regulations.gov</a>, insert the docket
number ``FMCSA-2022-0099'' in the keyword box, and click ``Search.''
Next, sort the results by ``Posted (Newer-Older),'' choose the first
notice listed, and click ``View Related 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-2022-0099'' in the keyword box, click ``Search,'' and chose the
document to review.
If you do not have access to the internet, you may view the docket
by visiting Dockets Operations 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., 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 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 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 (up to 5
years) and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).
III. Background
Current Regulatory Requirements
To reduce the possibility of driver fatigue, FMCSA's hours of
service (HOS) regulations in 49 CFR part 395 place limits on the amount
of time drivers of commercial motor vehicles (CMVs) may drive. The HOS
regulations in 49 CFR 395.3(a)(1) prohibit an individuals from driving
again after 11 hours driving or 14 hours on duty until they have been
off duty for a minimum of 10 consecutive hours, or the equivalent of at
least 10 consecutive hours off duty. Under 49 CFR 395.3(a)(2)--commonly
referred to as the 14-hour ``driving window''-- a driver has 14
consecutive hours in which to drive up to 11 hours after being off duty
for 10 or more consecutive hours. Section 395.3(a)(3)(ii) mandates that
drivers take a 30-minute break when they have driven for a period of 8
cumulative hours without at least a 30-minute interruption. The break
may be satisfied by any non-driving period of 30 consecutive minutes
(i.e., on-duty not driving, off duty, sleeper berth, or any combination
of these taken consecutively). Section 395.3(b)(1) prohibits drivers
for a motor carrier that does not operate CMVs every day of the week
from driving a CMV after being on duty for 60 hours during any 7
consecutive days, and section 395.3(b)(2) prohibits drivers for a motor
carrier that operates CMVs every day of the week from driving a CMV
after being on duty for 70 hours in any 8 consecutive days.
Applicant's Request
Leland Schmitt, Jr., requests a five-year exemption from 49 CFR
395.3(a)(1), section 395.3(a)(2), section 395.3(a)(3)(ii), and sections
395.3(b)(1) and (2). The applicant is an owner-operator currently
leased to D & E Transport in Clearwater, Minnesota, who has been
driving CMVs for 30 years. The requested exemption is solely for Mr.
Schmitt. The applicant states that the mandatory 10 hour off-duty break
goes against his natural sleep patterns, as his normal nighttime sleep
while in the CMV is between 5 and 7 hours.
IV. Method To Ensure an Equivalent or Greater Level of Safety
The applicant believes that his level of safety under this
exemption would be better than he could achieve by complying with the
HOS regulations because he will receive the proper rest needed when he
needs it. He points to his excellent driving record and 30 years of
safe driving experience. He states that he has not been involved in any
crashes and that he has accumulated over three million safe driving
miles during his truck driving career. He further indicates that he is
not requesting an exemption from the required 11 hours of total driving
time, which will be properly recorded by the electronic logging device
(ELD) in the vehicle. In his application for exemption, he also cites a
sleep study by the Massachusetts Institute of Technology, which he
states finds ``no impact from more night sleep, though naps help.''
V. Public Comments
On June 9, 2022, FMCSA published Mr. Schmitt's application and
requested public comment [87 FR 35282]. The Agency received 651 total
comments, 647 of which were filed by individual commenters; 350
comments supported the exemption, 68 were opposed, and 229 offered no
position either for or against the request. Advocates for Highway and
Auto Safety (Advocates) filed comments strongly opposing the request.
Advocates stated: ``Exempting the Petitioner (or any CMV operator) from
these HOS provisions and allowing him to drive as long, frequently and
as much as he desires would be utterly reckless and presents a needless
threat
[[Page 67747]]
to public safety regardless of his past driving record. Granting the
application would also disregard well established science on driver
fatigue.''
Other themes included among the comments were that: (1) safe
drivers are leaving the trucking industry because they are ``over-
regulated;'' (2) there are problems relating to loading/unloading
delays at shipper and driver detention times; (3) the applicant should
use the current sleeper-berth ``split'' provisions (7/3 ``split''); (4)
with over three million CMV drivers in the industry, the Agency cannot
exempt one individual driver from the HOS rules; (5) numerous
commenters would like to be included in the exemption if it is granted,
and others said that they would be applying for a similar exemption;
(6) the HOS regulations and the mandatory use of ELDs are
objectionable; (7) if the exemption is granted, it should apply to all
CMV drivers; and (8) the Agency should do a pilot study on the
exemption the applicant requests.
VI. FMCSA Safety Analysis and Decision
FMCSA evaluated Mr. Schmitt's application and public comments and
denies the exemption request. Mr. Schmitt failed to establish that he
would maintain a level of safety equivalent to, or greater than, the
level achieved without the exemption. The Agency established and
enforces the HOS regulations to keep fatigued drivers off the public
roadways. Research studies demonstrate that long work hours reduce
sleep and harm driver health and that crash risk increases with work
hours. The HOS regulations impose limits on when and how long an
individual may drive, to ensure that drivers stay awake and alert, and
to reduce the possibility of cumulative fatigue. The Agency concurs
with commenters that if it exempts one individual from the HOS
regulations, it could open the door for a huge number of similar
exemption requests. Such a result would be inconsistent with a primary
goal of the HOS regulations.
For the above reasons, Leland Schmitt, Jr.'s exemption application
is denied.
Robin Hutcheson,
Administrator.
[FR Doc. 2022-24383 Filed 11-8-22; 8:45 am]
BILLING CODE 4910-EX-P
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