[Federal Register Volume 88, Number 36 (Thursday, February 23, 2023)]
[Notices]
[Pages 11505-11506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 [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-2022-0199'' 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 www.regulations.gov, 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


