Notice2023-14303
Hours of Service of Drivers: Application for Exemption; Matthew Killmer
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
July 7, 2023
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
FMCSA announces its decision to deny the application from Matthew Killmer requesting an exemption from the hours-of-service (HOS) regulations to allow him to split his sleeper berth time into two 5- hour periods. The applicant indicates that the exemption would enable him to be a more alert and well rested commercial motor vehicle (CMV) operator and allow him to find a safe place to park his vehicle. FMCSA analyzed the application and public comments and determined that the exemption is not 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
<html>
<head>
<title>Federal Register, Volume 88 Issue 129 (Friday, July 7, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 129 (Friday, July 7, 2023)]
[Notices]
[Pages 43410-43412]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-14303]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2023-0013]
Hours of Service of Drivers: Application for Exemption; Matthew
Killmer
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; denial of application for
exemption.
-----------------------------------------------------------------------
SUMMARY: FMCSA announces its decision to deny the application from
Matthew Killmer requesting an exemption from the hours-of-service (HOS)
regulations to allow him to split his sleeper berth time into two 5-
hour periods. The applicant indicates that the exemption would enable
him to be a more alert and well rested commercial motor vehicle (CMV)
operator and allow him to find a safe place to park his vehicle. FMCSA
analyzed the application and public comments and determined that the
exemption is not likely to 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, Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; FMCSA; 202-366-2722 or <a href="/cdn-cgi/l/email-protection#91e3f8f2f9f0e3f5bff2fdf4fcf4ffe5f4d1f5fee5bff6fee7"><span class="__cf_email__" data-cfemail="cdbfa4aea5acbfa9e3aea1a8a0a8a3b9a88da9a2b9e3aaa2bb">[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-2023-0013'' 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
[[Page 43411]]
docket number ``FMCSA-2023-0013'' 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 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
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 maintain a
level of safety equivalent to, or greater than, the level that would be
achieved by the current regulation (49 CFR 381.305(a)). The Agency must
publish its decision in the 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 hours-of-service (HOS) regulations in 49 CFR part 395 limit
the time CMV drivers may drive and also require certain off-duty
periods to ensure that individuals stay awake and alert while driving.
The HOS regulations in 49 CFR 395.3(a)(1) prohibit an individual from
continuing to drive after 11 hours driving. Further, under 49 CFR
395.3(a)(2) drivers may not drive after a period of 14 consecutive
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. 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 duty-period limit.
Applicant's Request
Matthew Killmer requests an exemption from certain restrictions
imposed by 49 CFR 395.1(g)(1)(ii) on the use of the sleeper berth to
accumulate the required off-duty time under 49 CFR 395.3(a)(1). Section
395.1(g)(1)(ii), as described above, allows a driver operating a CMV
equipped with a sleeper berth to obtain the required 10 hours of rest
in two periods. In particular, the applicant requests that he, and
other drivers who so request, be allowed to shorten the required 7-
consecutive-hour sleeper-berth period to 5 hours, paired with another
5-hour sleeper-berth period, to accumulate the required 10 hours of
rest.
IV. Method To Ensure an Equivalent or Greater Level of Safety
The applicant believes that the exemption, if granted, would result
in increased driver turnover at rest areas/safe havens, which would
allow more drivers to utilize available parking spaces to get adequate
rest. He states that the percentage of drivers with proper rest would
increase creating a more alert and responsive driver population and
reducing sleep-related crashes/incidents. The applicant further adds
that this would allow drivers to better utilize their available time
when accounting for delays due to inclement weather or detention time
at a shipper's facility.
V. Public Comments
On February 23, 2023, FMCSA published Matthew Killmer's application
and requested public comment (88 FR 11504). The Agency received 279
comments, nearly all filed by individuals/owner-operators and small
trucking companies. Comments supporting the application numbered 222,
while 11 opposed the exemption and another 46 offered no position
either for or against the request, but instead offered general comments
on the current HOS regulations. Joint comments in opposition were filed
by the Truck Safety Coalition (TSC), Citizens for Reliable and Safe
Highways (CRASH), and Parents Against Tired Truckers (PATT). These
three organizations stated that the law requires any exemption request
to include ``proven measures to ensure that an equal or greater level
of safety will result from the granting of the exemption. . . . The
applicant fails to propose any rigorous, evidence-based measures that
would satisfy this statutory requirement.'' They added: ``the reason
that the current sleeper berth requirement exists is due to the fact
that FMCSA found that splitting time in the sleeper berth in too short
of increments prevents obtaining reasonable sleep that is necessary to
perform a safety-sensitive function.''
Other themes in opposition included: (1) there is not enough data
available from the June 1, 2020, HOS rule changes to support a 5/5
sleeper berth split provision; (2) additional ``flexibility'' is not
necessary with the current HOS regulations; (3) better driver training
is needed; and (4) the increased numbers of CMV crashes/incidents.
A number of filers supporting the exemption argued that a 6/4
sleeper-berth split: (1) would provide a better opportunity for drivers
to find safe parking and to stay more alert; (2) would provide a better
opportunity for managing a driver's down time; (3) would enable drivers
to be more rested; and (4) could be combined with additional ideas for
``pausing'' the 14-hour ``driving window.''
Those with no position either for or against the exemption had
general complaints about the HOS rules, with including: (1) the Agency
again needs to amend/revise the HOS rules; (2) accidents/incidents are
caused by driver carelessness not [HOS] laws; (3) let drivers decide
when they are tired; (4) support for a 24-hour restart instead of the
current 34-hour restart; and (5) the Agency should grant exemptions to
companies with better Pre-Employment Screening Program (PSP) scores.
VI. FMCSA Safety Analysis and Decision
FMCSA has evaluated Matthew Killmer's application and public
comments and denies the exemption request. The applicant failed to
establish that he would likely maintain a level of safety equivalent
to, or greater than, the level achieved without the exemption.
In 2020, in its most recent HOS rulemaking, the Agency modified the
split sleeper-berth provisions to provide more flexibility for drivers
and settled on the current rule which requires at least one longer
period of at least 7 hours in the sleeper berth (85 FR 33396). During
the rulemaking process,
[[Page 43412]]
in considering other split modifications, the Agency stated:
[T]here is no clear evidence--to say nothing of a scientific
consensus--that a 6-hour (or shorter) sleeper-berth period is long
enough to prevent cumulative fatigue. That is especially obvious
since drivers cannot be expected to fall asleep immediately. The 7-
hour period adopted in this final rule allows enough time for
drivers to relax, de-compress, and obtain more than 6 hours of
sleep. Having examined a wide range of sleep and fatigue studies,
which fail to converge on a single result, the Agency has concluded
that the proposed 7/3 split is both scientifically reasonable and
responsive to the needs of the driver population for greater
flexibility.
Although a large number of commenters supported Mr. Killmer's
request, they did not provide any evidence to demonstrate that the
exemption was likely to provide a level of safety equivalent to the
current regulatory requirements. The Agency acknowledges the
commenters' concerns relating to truck parking; however, those concerns
are not a valid basis for evaluating the application, as the Agency
must base its decision on the requirement for an equivalent level of
safety.
For the above reasons, the exemption application is denied.
Earl Stanley Adams Jr.,
Deputy Administrator.
[FR Doc. 2023-14303 Filed 7-6-23; 8:45 am]
BILLING CODE 4910-EX-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 7, 2023.
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.