Notice2023-08192
Hours of Service of Drivers: National Propane Gas Association; Application for Exemption
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 19, 2023
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 75 (Wednesday, April 19, 2023)</title>
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[Federal Register Volume 88, Number 75 (Wednesday, April 19, 2023)]
[Notices]
[Pages 24259-24261]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="/cdn-cgi/l/email-protection#e7958e848f869583c9848b828a82899382a7838893c9808891"><span class="__cf_email__" data-cfemail="06746f656e67746228656a636b636872634662697228616970">[email protected]</span></a>. 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 <a href="http://www.regulations.gov">www.regulations.gov</a>, 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 <a href="http://www.regulations.gov">www.regulations.gov</a>, 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
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