[Federal Register Volume 88, Number 75 (Wednesday, April 19, 2023)]
[Notices]
[Pages 24259-24261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08192]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2022-0175]


Hours of Service of Drivers: National Propane Gas Association; 
Application for Exemption

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 exemption request 
from the National Propane Gas Association (NPGA). NPGA sought an 
exemption from various hours-of-service (HOS) requirements to enable 
the propane industry to prepare and respond to peak periods of consumer 
demand among residential, agricultural, and commercial consumers in 
anticipation of, during, and to recover from emergency conditions. NPGA 
requests that the exemption apply on a per-driver, per-route basis, and 
that each company that elects to utilize it must maintain appropriate 
documentation to demonstrate the presence of peak consumer demand 
conditions within the scope of the exemption. FMCSA analyzed the 
exemption 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 at (202) 366-2722 or [email protected]. If you 
have questions on viewing or submitting material to the docket, contact 
Docket Services, (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-2022-0175'' in the keyword box, and click ``Search.'' 
Next, sort the results by ``Posted (Newer-Older),'' choose the first 
notice listed, click ``Browse Comments.''
    To view documents mentioned in this notice as being available in 
the docket, go to www.regulations.gov, insert the docket number 
``FMCSA-2022-0175'' 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 
online 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 to grant 
exemptions from certain Federal Motor Carrier Safety Regulations 
(FMCSRs). FMCSA must publish a notice of each exemption

[[Page 24260]]

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 Regulation Requirements

    FMCSA's hours of service (HOS) regulations in 49 CFR part 395 place 
limits on the amount of time drivers of commercial motor vehicles 
(CMVs) may drive to reduce the possibility of driver fatigue. The 
regulations in 49 CFR 395.3(a)(2)--commonly referred to as the 14-hour 
``driving window''--allow an individual a period of 14 consecutive 
hours in which to drive up to 11 hours after being off duty for 10 or 
more consecutive hours. The regulations in 49 CFR 395.3(a)(3) prohibit 
individuals from driving again after 11 hours driving until they have 
been off duty for a minimum of 10 consecutive hours. The regulation in 
49 CFR 395.3(b)(1) prohibits a motor carrier that does not operate 
vehicles every day of the week from requiring or permitting a driver to 
drive, nor may the driver drive, a CMV after being on duty 60 hours 
during any 7 consecutive days, and 49 CFR 395.3(b)(2) prohibits a motor 
carrier that operates CMVs every day of the week from requiring or 
permitting a driver to drive, nor may the driver drive, a CMV after 
being on duty 70 hours in any 8 consecutive days. These are generally 
called the 60- and 70-hour ``weekly'' limits.

Applicant's Request

    The National Propane Gas Association (NPGA) requests a five-year 
exemption for its member company drivers to extend the 14-hour duty 
period in Sec.  395.3(a)(2) to no more than 17 hours; extend the 11-
hour driving period in Sec.  395.3(a)(3) to no more than 14 hours, 
following 10 consecutive hours off duty; waive the 60- and 70-hour 
rules in Sec.  395.3(b) for a period of no more than six consecutive 
days; and a period of six consecutive days may end with the beginning 
of an off-duty period of 34 or more consecutive hours. The exemption 
request is made in order to enable the propane industry to prepare and 
respond to peak periods of consumer demand among residential, 
agricultural, and commercial consumers.
    NPGA is the national trade association of the propane industry with 
a membership of nearly 2,500 companies and 36 State and regional 
associations representing members in all 50 States. Its membership 
includes retail marketers of propane gas who deliver fuel to the end 
user, propane producers, transporters and wholesalers, and 
manufacturers and distributors of equipment, containers, and 
appliances. NPGA's petition states that, in order to meet consumer 
demand, long- and short-haul propane drivers often reach the maximum 
``weekly'' HOS limits within three or four days, making them 
unavailable for the rest of the ``week'' while consumer demand 
continues. According to NPGA, the purpose of its request is to prepare 
and serve residential, commercial, and agricultural consumers ahead of 
and during peak consumption periods efficiently and safely. To clearly 
define the scope in its application, NPGA provided a brief outline of 
the terms and conditions that would apply to those individuals 
providing propane services for periods of peak consumer demand.

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

    To ensure an equivalent or greater level of safety, the NPGA 
application states that before operating under the special exemption, 
drivers must complete the Fatigue and Wellness Awareness course 
available online from the Propane Education & Research Council. NPGA 
further adds that recordkeeping relating to use of a special permit for 
exemption shall be in accordance with requirements of 49 CFR 390.29, 49 
CFR 390.31, and 49 CFR 395.8. Drivers operating under the exemption 
would be allowed only six consecutive days to utilize the exemption, 
and NPGA members must comply with all other provisions of the Federal 
Motor Carrier Safety Regulations.

V. Public Comments

    On September 30, 2022, FMCSA published notice of this application 
and requested public comments (87 FR 59486). The Agency received seven 
comments, six of which opposed the exemption. The six commenters that 
opposed the exemption were the following: the Commercial Vehicle Safety 
Alliance (CVSA); Owner-Operator Independent Drivers Association 
(OOIDA); Advocates for Highway and Auto Safety (Advocates)/Truck Safety 
Coalition (TSC); AWM Associates, LLC; Rebecca Transport; and one 
individual commentor. One commenter took no position on the 
application.
    Advocates/TSC stated ``. . . the exemption could be triggered by 
such common occurrences as cold temperatures and fallen trees [and t]he 
Petitioner also fails to meet the statutory requirements for requesting 
such an exemption.'' CVSA opposed granting the exemption and suggested 
that ``. . . FMCSA find alternative solutions to meet this need that 
are narrower and more targeted to the individual scenarios. One 
possible solution would be to direct the service centers to monitor 
needs and coordinate with industry to provide region specific waivers 
as appropriate.''
    OOIDA's comment focused on the impact the exemption would have on 
individual drivers: ``While we believe drivers should be provided 
maximum flexibility under HOS regulations, we fear this proposal could 
lead to greater coercion of employee drivers, with propane providers 
applying pressure to complete hauls while drivers are fatigued. 
Furthermore, it is unclear at what point drivers may waive the 60- and 
70-hour rule.'' AWM Associates, LLC, provided the following comment: 
``If a community is impacted, then the local government official may 
declare an emergency per Part 390.23 so the drivers needed may function 
as needed. A blanket exemption is far reaching and would exempt areas 
not impacted by the shortage of drivers.''

VI. FMCSA Safety Analysis and Decision

    FMCSA has evaluated the NPGA application and the public comments 
and denies the exemption. Research studies demonstrate that long work 
hours contribute to driver fatigue and can cause harm to a driver's 
health. Research also shows that crash risk increases with long work 
hours. The Agency established the HOS regulations to ensure that 
drivers stay awake and alert, and to reduce the possibility of

[[Page 24261]]

cumulative fatigue. NPGA's application does not provide an analysis of 
the safety impacts the requested exemption from the HOS regulations may 
cause. It also does not provide countermeasures to ensure that the 
exemption would likely achieve a level of safety equivalent to, or 
greater than, the level that would be achieved by the current 
regulations. The Agency cannot ensure that the exemption would achieve 
the requisite level of safety.
    Furthermore, what constitutes an emergency, sufficient to be 
exempted from existing safety regulations, is a fact-specific inquiry. 
Among the conditions specified in the NPGA application were ``railcar 
delays in excess of five business days,'' ``limitation of pipeline 
services due to pipeline allocation,'' and ``weather- and storm-related 
events including but not limited to fallen trees, rock and mudslides 
and other debris on the roadways . . .'' The Agency does not find a 
categorical exemption for the scenarios requested is appropriate.
    For the above reasons, NPGA's exemption application is denied.

Robin Hutcheson,
Administrator.
[FR Doc. 2023-08192 Filed 4-18-23; 8:45 am]
BILLING CODE 4910-EX-P


