[Federal Register Volume 88, Number 129 (Friday, July 7, 2023)]
[Notices]
[Pages 43410-43412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14303]


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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.

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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 [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-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 www.regulations.gov, insert the

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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