Hours of Service of Drivers: Application for Exemption; Matthew Killmer, 43410-43412 [2023-14303]
Download as PDF
43410
Federal Register / Vol. 88, No. 129 / Friday, July 7, 2023 / Notices
please write to: U.S Department of State;
Office of Global Information Systems,
A/GIS; Room 4534, 2201 C St. NW,
Washington, DC 20520. If email, please
address the email to the Senior Agency
Official for Privacy, Eric F. Stein, at
Privacy@state.gov. Please write ‘‘Email
Archive Management Records, State-01’’
on the envelope or the subject line of
your email.
FOR FURTHER INFORMATION CONTACT: Eric
F. Stein, Senior Agency Official for
Privacy; U.S. Department of State; Office
of Global Information Services, A/GIS;
Room 4534, 2201 C St. NW,
Washington, DC 20520 or by calling on
(202) 485–2051.
SUPPLEMENTARY INFORMATION: Email
Archive Management Records, State-01
must be rescinded because the
characteristics of the system as it exists
do not render the eRecords Archive a
system of records within the meaning of
5 U.S.C. 552a. The millions of emails,
diplomatic cables, and other files that
the system ingests are not ‘‘records’’ as
defined by section 552a(a)(4), as they
are not grouped by personal identifier
and are not records ‘‘about’’ the
individuals incidentally mentioned in
the files. eRecords is not a ‘‘system of
records’’ as defined by section
552a(a)(5) because it (1) does not index
files by personal identifier and (2) is not
used to retrieve data by using a personal
identifier. Information collected
incidentally through eRecords is
included in other ‘‘systems of records.’’
SYSTEM NAME AND NUMBER:
Email Archive Management Records,
State-01.
HISTORY:
Email Archive Management Records,
State-01, was previously published at 85
FR 13482.
Eric F. Stein,
Deputy Assistant Secretary, Global
Information Services (A/GIS), U.S.
Department of State.
[FR Doc. 2023–14351 Filed 7–6–23; 8:45 am]
BILLING CODE 4710–24–P
SURFACE TRANSPORTATION BOARD
ddrumheller on DSK120RN23PROD with NOTICES1
[Docket No. FD 36706]
BLPI RR L.L.C.—Acquisition and
Operation Exemption—Palouse River
& Coulee City Railroad L.L.C.
BLPI L.L.C. (BLPI), a noncarrier, has
filed a verified notice of exemption
under 49 CFR 1150.31 to acquire and
operate approximately 43.74 miles of
rail line owned by Palouse River &
Coulee City Railroad L.L.C. (PCC),
VerDate Sep<11>2014
18:55 Jul 06, 2023
Jkt 259001
extending from milepost 3.32
(Washington-Idaho state line) to
milepost 47.06 at Bovill, Idaho, in Latah
County, Idaho (the Line).
According to the verified notice, BLPI
and PCC entered into a Purchase and
Sale Agreement on April 24, 2023,
under which BLPI would acquire the
Line.1 The verified notice indicates that
BLPI intends to lease the Line to a thirdparty operator for the purposes of rail
service, but BLPI will function as the
operator of the Line if it were to so
choose.
BLPI certifies that the proposed
transaction does not involve a provision
or agreement that would limit future
interchange with a third-party
connecting carrier. BLPI also certifies
that the projected annual revenues
resulting from the transaction will not
exceed $5 million and will not result in
the creation of a Class I or Class II
carrier.
The earliest this transaction may be
consummated is July 22, 2023, the
effective date of the exemption (30 days
after the verified notice of exemption
was filed).
If the verified notice contains false or
misleading information, the exemption
is void ab initio. Petitions to revoke the
exemption under 49 U.S.C. 10502(d)
may be filed at any time. The filing of
a petition to revoke will not
automatically stay the effectiveness of
the exemption. Petitions for stay must
be filed no later than July 14, 2023 (at
least seven days before the exemption
becomes effective).
All pleadings, referring to Docket No.
FD 36706, must be filed with the
Surface Transportation Board either via
e-filing on the Board’s website or in
writing addressed to 395 E Street SW,
Washington, DC 20423–0001. In
addition, a copy of each pleading must
be served on BLPI’s representative, John
K. Fiorilla, Dyer & Peterson PC, 605
Main Street, Suite 104, Riverton, NJ
08077–1440.
According to BLPI, this action is
categorically excluded from
environmental reporting requirements
under 49 CFR 1105.6(c) and from
historic preservation reporting
requirements under 49 CFR 1105.8(b).
1 The eastern portion of the Line, between
milepost 21.0 and milepost 47.0, was authorized for
abandonment in Palouse River & Coulee City
Railroad—Abandonment Exemption—in Latah
County, Idaho, AB 570 (Sub-No. 1X) (STB served
Oct. 6, 2000). BLPI’s verified notice here states that,
based on the Board’s records, an interim trail use
negotiating period for that portion expired without
agreement and PCC did not consummate
abandonment; BLPI therefore asserts that the
eastern portion of the Line remains subject to the
Board’s jurisdiction and available to be acquired.
PO 00000
Frm 00148
Fmt 4703
Sfmt 4703
Board decisions and notices are
available at www.stb.gov.
Decided: June 30, 2023.
By the Board, Mai T. Dinh, Director, Office
of Proceedings.
Eden Besera,
Clearance Clerk.
[FR Doc. 2023–14337 Filed 7–6–23; 8:45 am]
BILLING CODE 4915–01–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2023–0013]
Hours of Service of Drivers:
Application for Exemption; Matthew
Killmer
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of final disposition;
denial of application for exemption.
AGENCY:
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.
SUMMARY:
Mr.
Richard Clemente, Driver and Carrier
Operations Division; Office of Carrier,
Driver and Vehicle Safety Standards;
FMCSA; 202–366–2722 or
richard.clemente@dot.gov. If you have
questions on viewing or submitting
material to the docket, contact Docket
Services, telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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 (NewerOlder),’’ 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
E:\FR\FM\07JYN1.SGM
07JYN1
Federal Register / Vol. 88, No. 129 / Friday, July 7, 2023 / Notices
Current Regulatory Requirements
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.
(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 sleeperberth 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 14hour ‘‘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.
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
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
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,
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
ddrumheller on DSK120RN23PROD with NOTICES1
43411
VerDate Sep<11>2014
18:55 Jul 06, 2023
Jkt 259001
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 7consecutive-hour sleeper-berth period to
5 hours, paired with another 5-hour
sleeper-berth period, to accumulate the
required 10 hours of rest.
PO 00000
Frm 00149
Fmt 4703
Sfmt 4703
E:\FR\FM\07JYN1.SGM
07JYN1
43412
Federal Register / Vol. 88, No. 129 / Friday, July 7, 2023 / Notices
in considering other split modifications,
the Agency stated:
[T]here is no clear evidence—to say
nothing of a scientific consensus—that a 6hour (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 7hour period adopted in this final rule allows
enough time for drivers to relax, decompress, 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
DEPARTMENT OF TRANSPORTATION
Maritime Administration
[Docket No. MARAD–2020–0133]
Decommissioning and Disposition of
the National Historic Landmark Vessel
N.S. Savannah; Establishment of the
Peer Review Group; and Schedule of
PRG Meetings
Maritime Administration,
Department of Transportation.
ACTION: Notice.
AGENCY:
In accordance with the
National Historic Preservation Act
(NHPA) and its implementing
regulations, the Maritime
Administration (MARAD) has
developed and executed a Programmatic
Agreement (PA) among the U.S.
Department of Transportation, MARAD,
the U.S. Nuclear Regulatory
Commission (NRC), the Advisory
Council on Historic Preservation
(ACHP), and the Maryland State
Historic Preservation Officer (SHPO) for
the Decommissioning and Disposition of
ddrumheller on DSK120RN23PROD with NOTICES1
SUMMARY:
VerDate Sep<11>2014
18:55 Jul 06, 2023
Jkt 259001
the Nuclear Ship Savannah (NSS). The
PA executed on March 17, 2023,
outlines the process for the
decommissioning and disposition of the
NSS. The PA is available for review on
the MARAD docket located at
www.regulations.gov under docket id
‘‘MARAD–2020–0133.’’ Stipulation II of
the PA establishes a Peer Review Group
(PRG) and affords the public an
opportunity to participate in PRG
activities, including attending meetings
and reviewing draft deliverables
developed as part of the PA. MARAD
encourages public participation and is
providing the preliminary PRG meeting
schedule for 2023 and 2024 in the DATES
section below.
DATES: The PRG plans to meet every two
months on the third Tuesday of the
month from 2:30–4:00 p.m. Eastern
Time. The preliminary meeting
schedule for 2023 through 2024 is as
follows:
• 2023: July 18, September 19,
November 21
• 2024: January 16, March 19, May 21,
July 16, September 17, November 19
ADDRESSES: PRG meetings will be
hosted onboard the NSS with remote
access available to participate online.
The NSS is located at Pier 13 Canton
Marine Terminal, 4601 Newgate
Avenue, Baltimore, MD 21124.
FOR FURTHER INFORMATION CONTACT:
Erhard W. Koehler, (202) 680–2066 or
via email at marad.history@dot.gov.
Persons who use a telecommunications
device for the deaf (TDD) may call the
Federal Information Relay Service
(FIRS) at 1–800–877–8339 to contact the
above individual during business hours.
The FIRS is available twenty-four hours
a day, seven days a week, to leave a
message or question. You will receive a
reply during normal business hours.
You may send mail to N.S. Savannah/
Savannah Technical Staff, Pier 13
Canton Marine Terminal, 4601 Newgate
Avenue, Baltimore, MD 21224, ATTN:
Erhard Koehler.
SUPPLEMENTARY INFORMATION:
Background
Built in 1959, NSS is the world’s first
nuclear-powered merchant ship and
served as a signature element of
President Eisenhower’s Atoms for Peace
program. While in service, NSS
demonstrated the peaceful use of atomic
power and explored the feasibility of
nuclear-powered merchant vessels. The
vessel was retired from active service in
1970. It was designated as a National
Historic Landmark (NHL) in 1991. NSS
is currently part of MARAD’s National
Defense Reserve Fleet (NDRF) in
retention status. Additional information
PO 00000
Frm 00150
Fmt 4703
Sfmt 4703
regarding the vessel is available at
https://www.maritime.dot.gov/
nssavannah.
The NSS nuclear power plant is
licensed by the NRC. MARAD is
decommissioning the nuclear power
plant, which will result in the
termination of the NRC license. The
license termination will lead to
MARAD’s disposition of the NSS.
Because the decommissioning and
disposition of the NSS is an
Undertaking under Section 106 of the
NHPA, MARAD initiated consultation
in 2018 with the Maryland SHPO, the
ACHP, the NRC, the National Park
Service (NPS) and other consulting
parties. Given the complexities of the
Undertaking, including the yet
undetermined disposition of the NSS,
the parties agreed to develop a PA to
guide the execution of the Undertaking.
Section 106 requires that federal
agencies consider views of the public
regarding their Undertakings; therefore,
in 2020, MARAD established a Federal
docket at https://www.regulations.gov/
docket/MARAD-2020-0133 to provide
public notice about the NSS
Undertaking. The federal docket was
also used in 2021 to solicit public
comments on the future uses of the NSS.
Moving forward, this same docket will
be used as a resource to take in public
comment, share information, and post
agency actions.
On March 17, 2023, the PA among the
U.S. Department of Transportation,
MARAD, the NRC, the ACHP, and the
Maryland SHPO for the
Decommissioning and Disposition of the
NSS was executed. The PA stipulates a
deliberative process by which MARAD
will consider the disposition of the NSS.
This process requires MARAD to make
an affirmative, good-faith effort to
preserve the NSS. The PA also
establishes the PRG in Stipulation II.
The PRG is the mechanism for
continuing consultation during the
effective period of the PA and its
members consist of the signatories and
concurring parties to the PA, as well as
other consulting parties, all of whom are
recognized subject matter experts across
various relevant fields and disciplines.
The PRG members will provide
individual input and guidance to
MARAD, rather than building towards
consensus group advice regarding the
implementation of stipulations in the
PA. PRG members and members of the
public are invited to provide input by
attending bi-monthly meetings and
reviewing and commenting on
deliverables developed as part of the
PA.
E:\FR\FM\07JYN1.SGM
07JYN1
Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
[[Page 43411]]
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