2023-15170. Hours of Service of Drivers: John Olier; Application for Exemption

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 John Olier requesting an exemption from certain hours of service (HOS) regulations including the 11-, 14-, and 70-hour rules with all “mandatory break” periods which would include the 10-hour and 30-minute break requirements. The applicant requests a permanent exemption for himself 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 likely 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:

Ms. Pearlie Robinson, Driver and Carrier Operations Division; Office of Carrier, Driver, and Vehicle Safety Standards; FMCSA; 202–366–4225; [e-mail]. If you have questions on viewing or submitting material to the docket, contact Dockets Operations at (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–2023–0051” 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–2023–0051” in the keyword box, click “Search,” and choose the document to review.

If you do not have access to the internet, you may view the docket by visiting Dockets Operations 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. 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 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)). If the exemption is denied, the notice will explain the reasons for the denial (49 CFR 381.315(c)(2)). 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 and 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 having been on duty for a period of 14 consecutive hours 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 395.3(a)(3)(ii) mandates that drivers take a 30-minute break after driving 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.

IV. Applicant's Request

The applicant requests a permanent exemption from 49 CFR 395.3(a)(1), section 395.3(a)(2), section 395.3(a)(3), section 395.3(a)(3)(ii), and section 395.3(b)(2). The proposed exemption is solely for the applicant. He states that the current regulatory requirements which include limitations on driving time and on-duty time and require certain rest periods, force him to drive outside of his body's healthy circadian rhythm. The applicant asserts that the HOS rules create unsafe driving conditions for him, other drivers, and the public.

V. Method To Ensure an Equivalent or Greater Level of Safety

The applicant states that he has never had an accident or incident involving safety. He asserts that his prior military experience, which trained him to work with little or no sleep periods enables him to recognize the warning signs of fatigue and respond appropriately. He implies that this training combined with his extensive driving experience enable him to safely operate a CMV without complying with the HOS regulations. He further asserts that operating under various exemptions, such as the exemption for agricultural commodities, for more than 75% of his driving time has resulted in less stress, fewer disruptions to his schedule, improved health, and improved productivity.

VI. Public Comments

On March 3, 2023, FMCSA published Mr. Olier's application for exemption and requested public comment (88 FR 13492). The Agency received 113 comments. Although 13 comments focused more on eliminating or relaxing the HOS rules than the exemption application, 83 comments supported the exemption.

For example, Richard Fuller wrote, “As a former US Air Force Member myself I think he does deserve the permanent exemption but i also think anyone who meets the record with a career as a professional driver with a clean slate such as myself since 1990 33 years clean and still going deserves this opportunity to work freely in a messed up world!” Jeff Pack wrote, “As another special operations veteran, we have to be in sync with what our body is telling us. Please grant his hos application.” An anonymous individual said, “You do for one you better do all but yeah, I agree with him, your body, you should know how your body operate.”

Seventeen commenters opposed the exemption. An anonymous individual, for example, wrote: “Granting an individual person a waiver opens up an area for everyone to seek deregulations of hours of service. The rules are in place for a reason and should be enforced uniformly.” Maxwell McManus wrote, “I implore FMCSA to consider that Mr. [Olier] has failed to provide sufficient evidence that his operations exempted from the hours of service rules are safer in nature or provide a higher level of safety to himself, the general public, and the trucking industry as a whole.”

Joint comments were filed by the Truck Safety Coalition (TSC), Citizens for Reliable and Safe Highways, and Parents Against Tired Truckers. In the joint comment TSC “strongly requests 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 in full.”

VII. FMCSA Safety Analysis and Decision

FMCSA evaluated Mr. Olier's application and public comments. FMCSA denies the exemption request. Mr. Olier failed to establish that he would likely 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 and reduce the risk of crashes. 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, which is to prevent crashes arising out of fatigued driving.

For the above reasons, John Olier's exemption application is denied.

Earl Stanley Adams, Jr.,

Deputy Administrator.