[Federal Register Volume 87, Number 216 (Wednesday, November 9, 2022)]
[Notices]
[Pages 67746-67747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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: 
[email protected]. 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 www.regulations.gov, 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 www.regulations.gov, 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


