Notice2023-03688
Hours of Service of Drivers: Application for Exemption; Wayne Moore, 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
February 23, 2023
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
FMCSA announces its decision to deny the application from Wayne Moore, Jr. for an exemption from four provisions of the Federal hours-of-service (HOS) regulations. 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 88 Issue 36 (Thursday, February 23, 2023)</title>
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[Federal Register Volume 88, Number 36 (Thursday, February 23, 2023)]
[Notices]
[Pages 11505-11506]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03688]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2022-0199]
Hours of Service of Drivers: Application for Exemption; Wayne
Moore, 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
Wayne Moore, Jr. for an exemption from four provisions of the Federal
hours-of-service (HOS) regulations. 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; 202-366-2722 or <a href="/cdn-cgi/l/email-protection#98eaf1fbf0f9eafcb6fbf4fdf5fdf6ecfdd8fcf7ecb6fff7ee"><span class="__cf_email__" data-cfemail="fc8e959f949d8e98d29f90999199928899bc989388d29b938a">[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-2022-0199'' 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-2022-0199'' 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(b) 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 HOS
regulations in 49 CFR part 395 limit the time drivers of commercial
motor vehicles (CMVs) may drive. The HOS regulations in 49 CFR
395.3(a)(1) prohibit driving after 11 hours driving or 14 consecutive
hours on duty until the driver has been off duty for a minimum of 10
consecutive hours, or the equivalent of at least 10 consecutive hours.
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) requires drivers to take a 30-minute break when they
have driven
[[Page 11506]]
for a period of 8 cumulative hours without at least a 30-minute
interruption. The break may be satisfied by 30 consecutive minutes of
on-duty not driving, off duty, or sleeper berth time, or any
combination of these taken consecutively. 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
Mr. Moore requests a five-year exemption from 49 CFR 395.3(a)(1)
and (2), 395.3(a)(3)(ii), and 395.3(b)(2). Mr. Moore is a CMV operator
who has driven for over 25 years, and currently works for a large
transportation company in Indiana. He states that he would like the
ability to split off-duty time into periods that are more conducive to
proper rest and sleep without having to comply with the HOS
regulations. He also states that he has the ability to decide whether
he is sufficiently rested to drive.
IV. Method To Ensure an Equivalent or Greater Level of Safety
The applicant believes that his level of safety under the
exemption, if granted, would be better than he could achieve by
complying with the HOS regulations because he would be able to get the
proper rest when needed. He states that he can safely drive and knows
when he is tired and has an excellent driving record, with no accidents
or incidents and has never had any HOS violations.
V. Public Comments
On December 1, 2022, FMCSA published Mr. Moore's application and
requested public comment (87 FR 73804). The Agency received 79 total
comments, the majority from individual drivers and owner-operators.
Thirty supported the request, 30 opposed it, and 18 commenters offered
no position either for or against the request. The Truck Safety
Coalition, Citizens for Reliable and Safe Highways, and Parents Against
Tired Truckers made the following joint comment: ``[we] request this
inadequately justified exemption to HOS requirements be denied in full.
Large truck crash fatalities continue to increase at an alarming pace,
and it is incumbent on the Department of Transportation and FMCSA to
take every measure possible to reverse this trend and affirm life
safety as its top priority by denying the request.'' General themes
from other opposing comments included: (1) HOS rules do save lives and
are there for everyone's safety; (2) the Agency cannot grant this
request for individuals; and (3) there is no scientific data to support
the HOS claims.
Commenters supporting the exemption suggested a graduated program
that allowed more driving hours for drivers with more driving
experience. One commenter said: ``I feel that the FMCSA should take a
3-step approach to the hours-of-service requirements and implement
rules for 5-10-15 year drivers who have demonstrated a level of safety
equal to or greater than what was achieved with the hours of service.''
None of the commenters who supported the exemption request presented
relevant data or reasoning to demonstrate how an equivalent level of
safety would be met if the exemption were granted. Those taking no
position either for or against Mr. Moore's application provided general
comments and complaints about the HOS and the Electronic Logging Device
regulations and suggested that the Agency needs to revise them.
VI. FMCSA Safety Analysis and Decision
After evaluating Mr. Moore's application and the public comments,
FMCSA denies the exemption request. Under 49 U.S.C. 31315(b)(1), to
grant an exemption, FMCSA must ``find that the exemption would likely
achieve a level of safety that is equivalent to, or greater than, the
level that would be achieved absent such exemption.'' Among other
requirements, 49 CFR 381.310(c)(5) requires a person seeking an
exemption to explain how it would ensure that it could achieve an
equivalent level of safety. Mr. Moore failed to explain how he would
maintain a level of safety equivalent to, or greater than, the level
achieved without the exemption. Although Mr. Moore stated that he would
be responsible for ensuring that he has adequate rest and that he has
an excellent driving record and no HOS violations, those
representations do not provide a basis from which the Agency could
conclude that the proposed exemption would provide an equivalent level
of safety.
The Agency's HOS regulations are designed to prevent fatigued
drivers from operating by imposing 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 (85 FR 33396, Sept. 29,
2020). A fatigued driver is more prone to perform poorly on tasks
requiring the vigilance and decision-making needed to operate a CMV
safely than a person who is alert. The Agency also agrees with
commenters who argued that exempting one individual from the HOS
regulations 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 reasons stated, FMCSA denies Wayne Moore, Jr.'s
exemption application.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-03688 Filed 2-22-23; 8:45 am]
BILLING CODE 4910-EX-P
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