[Federal Register Volume 62, Number 19 (Wednesday, January 29, 1997)]
[Notices]
[Pages 4372-4376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2089]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. MC-96-45]
Winter Home Heating Oil Delivery State Flexibility Program; Hours
of Service
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of final determination.
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SUMMARY: The FHWA is announcing the implementation of a Winter Home
Heating Oil Delivery State Flexibility Program for motor carriers
making intrastate home heating oil deliveries within a 100 air-mile
radius of a central terminal or distribution point. The FHWA has
selected the States of Connecticut, New Jersey, New York, and
Pennsylvania to participate in the program.
DATES: States are authorized to begin granting exemptions under this
program on January 29, 1997. This authorization expires April 30, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. Nathan C. Root, Office of Motor
Carrier Research and Standards, (202) 366-8759, or Mr. Charles Medalen,
Office of the Chief Counsel, (202) 366-1354, Federal Highway
Administration, DOT, 400 Seventh Street, SW., Washington, DC. 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: Section 346 of the National Highway System
Designation Act of 1995 (NHS Act) (Pub. L. 104-59, 109 Stat. 568, 615,
November 28, 1995, 49 U.S.C. 31136 note) requires the Secretary of
Transportation to develop and implement a Winter Home Heating Oil
Delivery State Flexibility Program (Heating Oil Program). Pursuant to
the NHS Act, the FHWA published a notice in the Federal Register
requesting comments on the development and implementation of the
program and State applications to participate in the program on October
2, 1996 (61 FR 5146). The program will permit any period of 7 or 8
consecutive days to end for any driver who has been off-duty for a
period of 24 or more consecutive hours for the purposes of determining
maximum on-duty time under 49 CFR 395.3(b) for drivers of vehicles
making intrastate home heating oil deliveries within 100 air-miles of a
central terminal or distribution point of the delivery of such oil. The
NHS Act allows the Secretary to approve up to 5 States to participate
in the program during the winter heating season beginning November 1,
1996, without jeopardizing Motor Carrier Safety Assistance Program
(MCSAP) funding to those States. The State participants were required
to meet criteria set forth in the NHS Act. This includes having a
substantial number of citizens relying upon home heating oil,
indicating the current hours-of-service regulations may endanger the
welfare of these citizens by impeding timely deliveries of home heating
oil, and ensuring that participating motor carriers maintain a level of
safety equal to or greater than that produced by compliance with the
current regulations through proper monitoring of their safety
performance and reporting their performance to the FHWA.
Under the Heating Oil Program, the States will limit participation
to those motor carriers with commercial motor vehicles (CMVs) that make
intrastate home heating oil deliveries within a 100 air-mile radius of
a central terminal or distribution point. The relief provided by
participating States will be effective for an initial 15-day period.
Each State will be able to continue in the program unless the FHWA
finds that a State's continued participation is inconsistent with the
NHS Act, or until April 30, 1997.
Comments on all aspects of the program were welcomed. However, the
FHWA also requested comments on a number of specific issues. Namely,
the 15-day and 30-day reporting and program extension requirements, the
definition of a ``substantial number of citizens relying on home
heating oil,'' and the implementation plan requirements. The comment
period for the Notice ended November 2, 1996.
Discussion of Comments
The FHWA received sixteen comments to the notice. The American
Trucking Association (ATA) and National Tank Truck Carriers, Inc.
(NTTC), provided comments. Four comments were received from petroleum
industry associations: the Petroleum Marketers Association of America
(PMAA), the Empire State Petroleum Association, the Pennsylvania
Petroleum Association, and the Oil Heat Task Force (OHTF). The
Wisconsin State Patrol and the Commonwealth of Massachusetts also
provided comment, as did the Advocates for Highway and Auto Safety
(AHAS) and two private companies. Applications for participation were
received from four States. All comments to the docket were in favor of
the implementation of the Heating Oil Program with the exception of
those of AHAS and Wisconsin. Massachusetts indicated that a substantial
number of their citizens rely on home heating oil and that they are
reviewing the October 2nd notice to determine if it is in the
Commonwealth's best interest to participate. To date, no application
from Massachusetts has been received by the FHWA.
Reporting and Program Extension Requirements
The NHS Act directs the Secretary to select up to 5 States to
participate in the program for an initial period of 15 days during the
winter heating season. If the Secretary finds that a State's continued
participation in the program has not resulted in a significant adverse
impact upon public safety, the NHS Act directs the Secretary to extend
the State's participation in the program for periods of up to 30 days.
Accordingly, the FHWA indicated that it would require each
participating State to submit a preliminary report of its evaluation of
carrier performance within 5 days after the initial 15 days. A State's
participation in the program could be suspended at any time if: (1) The
State had not complied with any criteria established for participation
in the program; (2) The motor carriers found eligible by the State were
causing a significant adverse impact upon public safety; or (3) The
State elected to end its participation in the program on its own
initiative.
The FHWA also indicated that it would require each participating
State to submit a report of carrier performance within 5 days of the
close of each 30-day reporting period. In the October 2nd notice, the
FHWA asked for comments on the requirement that extensions be granted
to the States after each reporting period, given the fact that program
participation may be suspended at any time during the program for
individual carriers or for an entire State. The applications of each
State that applied for participation included plans for submitting a
report at the end of the initial 15-day period, and at the end of each
30-day period for the duration of the program. The ATA and the AHAS
also provided discussion on this issue.
The ATA commented that States should periodically report safety
performance data to the FHWA and suggested a 60-day reporting interval
to reduce the burdens on the States and the carriers participating in
the program. The ATA also believed that requiring the FHWA to grant
extensions to the
[[Page 4373]]
States after each reporting period, thereby enabling the States to
continue providing the hours-of-service relief to the carriers, would
add no value to the program or to public safety. ``So long as the
States have the ability to suspend program involvement of motor
carriers that fail to meet the established safety performance levels,
which the Notice clearly indicates they will, a 30-day extension
requirement is simply unnecessary,'' said the ATA.
The AHAS commented that the NHS Act allows the FHWA to grant
extensions for periods less than and up to a maximum of 30 days. The
AHAS stated:
We believe that the statutory provision detailing this program
clearly shows that Congress wanted the agency to keep a tight rein
on this program and, accordingly, specifically provided for separate
evaluation on the merits of each extension of time for state
participation in order to maximize the administrative capabilities
of the FHWA in ensuring public safety.
The AHAS further opposes the FHWA granting extensions in full 30-
day increments. The AHAS views the granting of extensions as the FHWA's
primary safeguard for protecting the public during the program. The
AHAS was the only commenter to voice the opinion that extensions are
necessary and should be required.
The FHWA does not believe it is necessary to require States to
report to the FHWA in periods of less than 30 days. The States will be
required to continuously monitor and evaluate motor carrier safety
performance and have the power to remove program carriers and program
drivers at any point. As the ATA pointed out, the States would be
required to submit as many as 8 reports to the FHWA for a 6-month
project and to constantly monitor motor carrier safety performance.
Requiring States to report to the FHWA in periods of less than 30 days
would be an unnecessary burden on all parties involved and provide no
apparent and demonstrable benefit to public safety. The FHWA does
recognize that reporting periods of longer than 30 days may not allow
sufficient consideration of information for effective oversight in
light of the short duration of the covered season.
The FHWA does agree with the AHAS's assertion that whether or not
to approve extensions is a significant control the FHWA may use for
protecting the public during the program. The definitive safeguard is
the FHWA's ability at any point to terminate the program in any State.
Public safety is primarily protected by each State's monitoring
activities and by the authority of each State to remove any carrier or
driver from the program at any point or to terminate the program State-
wide at any point.
Considering these issues, the FHWA is imposing limitations on the
approval of extensions. The parameters of the program are described
below. A report will be due to the FHWA from each State within 5 days
following the initial 15 days of the program, and within 5 days of the
end of each 30-day reporting period. For the duration of the program,
motor carriers in each State will be required to promptly report to the
State the details of any accident in which a program driver is
involved. If the FHWA has not reviewed the State's report and
affirmatively extended the program within 72 hours after the report is
due, the State's program is automatically suspended until approval is
granted.
The FHWA will also provide continuous program oversight by
maintaining close liaison with State personnel evaluating significant
information as it becomes available. If at any point the FHWA
determines the program guidelines are not adhered to or the flexibility
granted by the program results in a significant adverse impact on
public safety, the FHWA will terminate the program. The FHWA will make
such decisions on a State-by-State basis.
Definition of ``Substantial Number of Citizens''
The NHS Act stipulated that, in order to be eligible to participate
in the Heating Oil Program, a State must have a substantial number of
citizens who rely on home heating oil for heat during winter months.
The FHWA proposed in the October 2nd notice to interpret ``a
substantial number of citizens relying on home heating oil'' to mean
that at least 20 percent of the households in a State rely on home
heating oil. The FHWA specifically welcomed comments upon this
definition. The PMAA and the OHTF both responded that the FHWA should
consider States with the highest number of citizens relying on heating
oil rather than, or in addition to, the percentage. Because the FHWA
received only four applications, it was unnecessary for the FHWA to use
the highest number of citizens relying on heating oil in addition to
the percentage of citizens to evaluate each State's ability to meet
this criteria.
Each State that submitted an application, plus the Commonwealth of
Massachusetts, met the 20 percent threshold. No other comments or
inquiries were received on this definition. Each State that applied to
the program submitted sufficient information to establish that a
substantial number of their citizens rely on home heating oil for heat
during the winter months. The information submitted was based on the
data presented in the October 2nd notice, derived from residential
heating oil sales data maintained by the Energy Information
Administration of the U.S. Department of Commerce, as well as the
State's own data concerning residential heating oil use.
Implementation Plan Requirements
The October 2nd notice requested that interested and eligible
States submit an application that included an implementation plan
describing the conditions of eligibility for a motor carrier to
participate. The plan also had to include a discussion of the means
that a State would employ to monitor the performance of the
participating carriers, mitigate safety risks, and evaluate the merits
of the program. The FHWA requested comments on the appropriateness,
suitability, or burden of these requirements.
The AHAS expressed concern that the FHWA may be prepared to accept
``almost any information'' regarding safety impacts and that the
monitoring approaches were inadequate and inconsistent with
requirements for scientific studies. No alternative methods for
monitoring or evaluating the safety performance of participating motor
carriers were provided in the AHAS comments. The FHWA believes the
program oversight and controls described herein are adequate to
safeguard the public against potential abuse. Given the nature of the
program, the differences in weather patterns and seasonal conditions,
the consequent multiplicity of variables, and the number and variety of
participating entities, pure scientific protocols are impossible to
devise. The FHWA will, however, collect as much relevant information as
is reasonably possible and evaluate it in a number of ways to ascertain
whether any safety effects of the limited regulatory relief can be
identified and attributed.
The possible safety monitoring approaches identified in the October
2nd notice (comparing safety performance levels of motor carriers
during the program to performance in previous winter(s), safety
performance of other similar industries during the same period, and
using a study control group among the participating motor carriers)
were described in broad terms to give the States and the public an idea
of possible methods that may be utilized by States to monitor and
evaluate safety performance. The FHWA intended to
[[Page 4374]]
encourage States and the public to propose alternative monitoring
methods that would ensure public safety and generate data on the merits
of the program. This program will be run by the States, with little or
no resources from the FHWA, except for program oversight. Intrastate
operations are subject to the FHWA's jurisdiction only insofar as MCSAP
funding may be jeopardized if a participating State does not adopt
hours-of-service regulations for intrastate operations that are
equivalent to or compatible with the Federal regulations. Adoption of a
24-hour re-start would normally constitute an unacceptable variance to
the regulations under the current Tolerance Guidelines (49 CFR part
350, App. C). The FHWA has the option of rejecting any application that
contains insufficient information or inadequate monitoring and
evaluative strategies or otherwise fails to meet the requirements of
the NHS Act.
On-Duty Time Regulations Endangering Welfare of Citizens
Section 346(b)(2) of the NHS Act provides that:
The Secretary may only approve an application of a State under
this section if the Secretary finds, at a minimum, that--
* * * * *
(2) current maximum on-duty time regulations may endanger the
welfare of these citizens by impeding timely deliveries of home
heating oil; . . .
The AHAS commented on this criterion with regard to the FHWA's
responsibilities in reviewing State applications:
Accordingly, the Secretary must make a finding sustained by
ample, credible data and other evidence that there are in fact
citizens whose safety and health are directly and immediately
impacted adversely by service failures in making timely deliveries
of home heating oil as a causal result of hours of service
constraints in intrastate transportation. Advocates regard this
evidentiary standard of imminent threats to citizen safety and
health to require far more than simple, generalized affidavits of
state officials or of motor carriers. The FHWA in this proposal sets
forth no criteria whatever for making such a determination of
whether this public health and safety threat due directly and
immediately to hours of service constraints in fact exists in any
applicant state.
The FHWA does not agree with AHAS's interpretation of the statute.
The NHS Act requires that a determination be made that current maximum
on-duty time regulations ``may endanger the welfare'' of citizens by
impeding timely deliveries. This is a much less stringent criterion
than AHAS's reading of the NHS Act suggests.
Several respondents to the docket mentioned that extended periods
of cold temperatures that occur each winter cause an urgent need for
home heating oil. In addition, they noted that severe and inclement
weather conditions, such as ice or heavy snow falls, impede the timely
delivery of home heating oil to consumers. The FHWA believes that the
situations described by the applicant States provide sufficient
evidence for the FHWA to determine that compliance with the hours of
service requirements may endanger the welfare of citizens who must wait
longer for delivery of their home heating oil as a result.
Commenters also cited emergencies declared in response to these
conditions (49 CFR 390.23) as evidence that current maximum on-duty
time regulations may endanger the welfare of citizens dependent on home
heating oil. An emergency declared in accordance with Sec. 390.23
relieves motor carriers providing emergency relief from compliance with
all the Federal Motor Carrier Safety Regulations (49 CFR Parts 390
through 399). It is the FHWA's hope that this program may obviate the
need to declare emergencies within participating States during the
current winter heating season.
Participating States
The FHWA has reviewed and accepted applications submitted by the
States of Connecticut, New Jersey, New York, and Pennsylvania. The FHWA
has discussed the applications with each State applicant and slight
modifications have been made to what was submitted. The FHWA has found
that these States each meet the participation eligibility criteria
established by the NHS Act. In separate agreements with the FHWA, each
State has agreed to abide by the parameters that follow. New York has
elected to pursue more stringent hours of service relief than the
statute allows for this program. It has been noted where New York
deviates from the parameters followed by the other participating
States.
Parameters of the Heating Oil Program
I. Definitions
The following definitions have been established for the purposes of
the Heating Oil Program:
Accident. Accident is defined as an occurrence involving a CMV
operating on a public road in commerce which results in: (1) A
fatality; (2) Bodily injury to a person who, as a result of the injury,
immediately receives medical treatment away from the scene of the
accident; or (3) One or more motor vehicles incurring disabling damage
as a result of the accident, requiring a motor vehicle to be
transported away from the scene by a tow truck or other motor vehicle.
This term also includes any unintentional discharge of home heating oil
that requires the submission of DOT Form F 5800.1 (Rev. 6/89) (see 49
CFR 171.16). The term accident does not include an occurrence involving
only boarding or alighting from the stationary motor vehicle delivering
home heating oil.
Deliveries of home heating oil. Intrastate deliveries of home
heating oil to homes within a 100 air-mile radius of a central location
or distribution point. Deliveries between distribution points are not
included in this definition.
Home heating oil. Fuel oil used for heating homes which meets the
definition of ``Fuel Oil'' in the Hazardous Materials Table in 49 CFR
172.101, identified as Fuel Oil No. 1, or Fuel Oil No. 2.
The definition of ``accident'' was taken from 49 CFR 390.5, with
the addition of any spillage of home heating oil as identified by the
Hazardous Materials Regulations. The FHWA believes it would be remiss
not to include data on hazardous materials incidents. The FHWA has a
responsibility to the safety of the environment as well as to public
safety, and a change in the frequency of incidents in the loading and
unloading process may also be considered as an indicator of driver
fatigue. The definition of ``deliveries of home heating oil'' does not
include loading delivery trucks from a source outside the participating
State and delivering the oil only to homes within the participating
State. Such deliveries are interstate in nature because of their point
of origin. The definition of ``home heating oil'' was taken from the
Federal Hazardous Materials Regulations promulgated by the Research and
Special Programs Administration. The FHWA understands that only Fuel
Oil No. 1 and No. 2 are used as home heating oil (6 types of fuel oil
are identified in the Hazardous Materials Table, No. 1, 2, 3, 4, 5 and
6).
II. Hours-of-Service Flexibility
Participating States will accept applications from interested and
eligible motor carriers. As described below, motor carriers that have
been accepted will be notified by their State and will participate in
the program until the program terminates or they are removed from the
program by the participating State.
[[Page 4375]]
Connecticut, New Jersey, and Pennsylvania will permit motor
carriers that have been accepted into the program to allow their
drivers to re-start calculations for the 60-hour and 70-hour rules
after accumulating at least 24 consecutive hours of off-duty time. New
York will permit motor carriers that have been accepted into the
program to allow their drivers to re-start calculations of the 60-hour
and 70-hour rules after accumulating at least 36 consecutive hours of
off-duty time. However, total on-duty time must not exceed 75 hours
during a 7 consecutive day period (rather than 60 hours), or 80 hours
during an 8 consecutive day period (rather than 70 hours) for carriers
who operate 7 days a week. If New York determines an ``emergency''
exists, the above conditions will apply except the drivers may re-start
calculations after accumulating at least 24 consecutive hours of off-
duty time. Flexibility granted by States under this program will not
jeopardize MCSAP funding.
Drivers who exceed the 100 air-mile radius of a central terminal or
distribution point, operate CMVs for other motor carriers, or operate
CMVs for a participating motor carrier in capacities not covered by the
Heating Oil Program, may not participate in the program. However, if a
participating driver only occasionally operates a CMV for other motor
carriers or exceeds the 100 air-mile radius, it is the option of the
participating State whether to allow the driver to continue
participating in the program. It is the FHWA's concern that it would be
difficult to take into account or predict the effect of driving
experience accumulated outside the scope of this program when
determining the safety performance of participating drivers and motor
carriers. Participating drivers must be in full compliance with 49 CFR
395.3(b) before operating outside the constraints of this program in
interstate commerce.
III. Motor Carrier Eligibility
To be eligible to participate:
(1) Each motor carrier must certify to the State that it is
actively engaged in making intrastate deliveries of home heating oil
within a 100 air-mile radius of a central terminal or distribution
point.
(2) Each motor carrier must not have received an ``Unsatisfactory''
rating from the FHWA, or a similar safety rating from the State, during
the past 5 years.
(3) Each motor carrier must certify that it will provide the State
with timely safety data within close proximity to the end of each
reporting period. Required safety data includes a roster of drivers
operating under the program, time cards for each driver, any accident
reports and/or hazardous materials incident reports pertaining to these
drivers during the reporting period.
(4) Each motor carrier must certify that it will comply with all
applicable regulations relating to the safety of its intrastate
operations. If an emergency is declared, in accordance with 49 CFR
390.23, the FHWA requests that each motor carrier continue to abide by
the conditions of this program. However, if participating motor
carriers avail themselves of the emergency exemption, they must
continue to abide by the reporting requirements of this program.
(5) Each motor carrier must provide to the State accident and
mileage data for the winter season of each year it has operated since
the 1993--1994 winter heating season. This information is required for
States to determine whether motor carrier safety performance during the
course of this program declines or improves. The FHWA is aware that the
severity of weather conditions varies from one year to the next.
However, by collecting data for previous winter seasons, accident rates
for the upcoming 1996-1997 winter heating season can be compared with
recent averages.
IV. Monitoring
Each State will monitor the safety of all drivers participating in
the program. Participating motor carriers must report each accident to
the State within 2 days of the accident. When reporting an accident,
the motor carrier must provide copies of the time cards for the
previous 7 days for the driver involved. Within 5 days following any
accident, the motor carrier must submit to the State a brief summary of
the accident, to be maintained by the State, which includes:
--The date and time of the accident;
--The name and driver license number of the driver;
--The driver's number of hours on-duty on the day of the accident and
in the period since his last 24-hour off-duty period;
--The number and extent of any injuries and/or damage to property;
--The number of fatalities; and
--Whether and to what extent any heating oil was spilled.
If data collected by a participating State indicates that the
safety performance of any participating motor carrier has declined
since commencement of its participation in the program, the State will
immediately conduct an investigation. If the State determines that the
adverse effect on safety was caused by the flexibility afforded under
the program, the State may elect to suspend individual drivers of a
motor carrier from participating in the program or the motor carrier as
a whole. If a State determines that multiple participating motor
carriers have experienced an adverse change in their safety performance
as a result of the flexibility afforded by the program, the State may
terminate the entire program within its jurisdiction. In all cases, the
State will promptly notify the FHWA of any corrective actions taken and
the reasons for them.
V. Dates
The Heating Oil Program will begin on January 29, 1997 and end by
April 30, 1997, unless otherwise specified by the individual State.
Each State will report its preliminary findings to the FHWA within 5
days of the completion of the first 15 days of the program. Each State
will be able to continue in the program, unless the FHWA finds that a
State's continued participation in the program is inconsistent with the
NHS Act, and report program findings to the FHWA within 5 days of each
30-day reporting period. If the FHWA has not reviewed the State's
report and affirmatively extended the State's program within 72 hours
after the report is due, program approval is automatically suspended in
the reporting State until the FHWA review is completed and approval
granted.
The program shall terminate for all States by April 30, 1997.
Participating States may terminate the program before April 30, 1997,
but may not extend the program beyond that date. The FHWA may terminate
a State's participation at any point during the program. Each State may
terminate a motor carrier's or a driver's participation at any point
during the program. Each State may also voluntarily terminate its own
participation at any point during the program.
VI. Reports
Each State will provide to the FHWA the results of the first 15
days of the Heating Oil Program within 5 days of the completion of the
first 15 days program. The report shall include:
--The number of participating carriers
--The number of participating drivers
--A brief summary of any accident that has occurred, in accordance with
Section IV above;
--The number of participating carriers and/or drivers suspended from
the program; and
--A preliminary analysis of the safety record of the program to the
date of the report, based on the State's experience with similar
operations under the current 60-hour and 70-
[[Page 4376]]
hour rules (such as natural gas or power company service vehicles).
If the FHWA extends the program beyond the initial 15 days, each
State will submit a similar report within 5 days at the end of every
30-day reporting period thereafter. Within 30 days of the conclusion of
the program (April 30, 1997), each State will compile and report the
results of the program to the FHWA and include an overall evaluation of
the program.
VII. Final Evaluation of the Program
The NHS Act requires the FHWA to conduct an evaluation at the
conclusion of the program. The principal objective of the evaluation is
to provide input to a zero-base review of the need for, and the cost
and benefits of, the hours-of-service regulations as they apply to home
heating oil delivery operations during the winter months. The NHS Act
requires the FHWA to initiate a rulemaking, based in part upon the
results of the program, to determine whether to authorize State-granted
waivers of the hours-of-service regulations to motor carriers
transporting home heating oil during the winter months or to amend the
hours-of-service regulations to provide flexibility to motor carriers
delivering home heating oil during winter periods of peak demand.
Authority: 49 U.S.C. 31136(e); National Highway System
Designation Act, Pub. L. 104-59, Sec. 346, 109 Stat. 568, 615
(1995); 49 CFR 1.48.
Issued on: January 17, 1997.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 97-2089 Filed 1-28-97; 8:45 am]
BILLING CODE 4910-22-P
