2023-00975. Hours of Service of Drivers: Application for Exemption; Ronnie Brown III

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 Ronnie Brown III requesting an exemption from five provisions of the Federal hours of service (HOS) regulations and the electronic logging device (ELD) 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 [e-mail]. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

To view comments, go to www.regulations.gov, insert the docket number “FMCSA-2022-0139” 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-2022-0139” 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 [phone] or [phone] 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 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 individual 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(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. The ELD regulations in 49 CFR part 395, subpart B, specify minimum performance and design standards and requirements for the mandatory use of these devices by drivers currently required to prepare HOS records of duty status.

Applicant's Request

Ronnie Brown III requests a five-year exemption from 49 CFR 395.3(a)(1), section 395.3(a)(3)(i), section 395.3(a)(2), section 395.3(b)(1) and (2), and the ELD regulations in 49 CFR part 395 subpart B. The applicant is a CMV operator who drives for Gray Transportation in Waterloo, Iowa, and has been driving for 15 years. The requested exemption is solely for Mr. Brown. The applicant states that the HOS regulations create “safety concerns” because they do not always coincide with his natural sleep patterns and are a “one size fits all set of rules.” He further adds that he “can safely drive . . . no matter the amount of sleep [he] get[s] or the length of drive time.”

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 and ELD regulations because he will receive the proper rest needed when he needs it. He states that he can safely drive and knows when he is tired and does not push beyond his limits of safety, regardless of the amount of sleep he gets or the length of drive time. He states that he always maintains a safe distance from other vehicles, has an excellent driving record, and has never been involved in a preventable crash.

V. Public Comments

On August 19, 2022, FMCSA published Mr. Brown's application and requested public comment [87 FR 51189]. The Agency received 1,223 comments, nearly all filed by individual drivers and owner-operators. Of that total, 587 comments supported the request, 119 opposed it, and another 515 commenters offered no position either for or against the request, but instead submitted general comments on the HOS and ELD regulations. Joint comments in opposition to the exemption were filed by the Truck Safety Coalition, Citizens for Reliable and Safe Highways (CRASH), and Parents Against Tired Truckers (PATT). The AFL-CIO/Transportation Trades Division (TTD) also opposed the exemption request. The Truck Safety Coalition stated: “[we] strongly request this inadequately justified exemption to HOS and ELD 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.” The AFL-CIO/TTD urged FMCSA to reject the request, stating, “While we are sensitive to the needs of drivers, it is simply irresponsible to address concerns with HOS and ELD regulations by wholesale exempting particular individuals from these important safeguards.”

Other general “themes” from those who opposed the request included that: (1) there is no data provided for an equivalent level of safety; (2) HOS rules do save lives and are there for everyone's safety; (3) this request cannot be granted for individuals; (4) if the Agency granted this exemption for one individual, then FMCSA must grant it for everyone; and (5) drivers can utilize the provision in 49 CFR 392.3 if they feel ill or fatigued. Many of the commenters said that if the exemption were granted, they and numerous others would apply for a similar exemption. Others provided general comments requesting changes to many facets of the HOS and ELD regulations.

VI. FMCSA Safety Analysis and Decision

FMCSA evaluated Mr. Brown's application and the public comments and denies the exemption request. Mr. Brown 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 agrees 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, FMCSA denies Ronnie Brown's exemption application.

Robin Hutcheson,

Administrator.