[Federal Register Volume 61, Number 192 (Wednesday, October 2, 1996)]
[Notices]
[Pages 51486-51489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25183]
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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; Request for comment.
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SUMMARY: The FHWA is requesting comments on the development and
implementation of a Winter Home Heating Oil Delivery State Flexibility
Program (Heating Oil Program) for motor carriers making intrastate home
heating oil deliveries within a 100 air-mile radius of a central
terminal or distribution point. As mandated by the National Highway
System Designation Act of 1995 (NHS Act), the FHWA must select up to 5
States to participate. These States would permit drivers of commercial
motor vehicles (CMVs) making intrastate home heating oil deliveries to
end any period of 7 or 8 consecutive days with the beginning of an off-
duty period of 24 or more consecutive hours. The program will begin
November 1, 1996, and end April 30, 1997.
DATES: Comments must be received on or before November 1, 1996.
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, D.C. 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
I. The NHS Act of 1995
Section 346 of the National Highway System Designation Act of 1995
(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). The program would 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 participating States would have 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 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 the program will be
effective for 15-day or 30-day increments during the period from
November 1, 1996 to April 30, 1997. Participating States must submit a
plan to the FHWA describing the conditions of eligibility for
participating carriers and the means the State will employ to monitor
performance, mitigate safety risks, and evaluate the merits of the
program. Each State would accept responsibility for monitoring the
performance of the motor carriers it determines to be eligible and for
enforcing the conditions it imposes.
Participating States will allow drivers making intrastate home
heating oil deliveries within 100 air-miles of a central terminal or
distribution point to end any period of 7 or 8 consecutive days after
having 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),
or the equivalent State requirement. This will effectively allow
drivers and motor carriers to ``restart'' calculations for the 60-hour
and 70-hour rules after an off-duty period of 24 or more consecutive
hours. This concept is commonly referred to as a ``24-hour restart.''
The NHS Act directs the FHWA to initiate a rulemaking within 90
days after completion of the program to determine, based in part on the
results of the program, whether granting waivers of the hours-of-
service regulations to motor carriers of home heating oil within the
borders of a State, or to amend the hours-of-service regulations to
provide flexibility to
[[Page 51487]]
motor carriers delivering home heating oil during winter periods of
peak demand, would be consistent with safety.
II. Hours of Service Regulations
The hours-of-service regulations are intended to provide motor
carriers and drivers with a framework for ensuring driver alertness.
The first hours-of-service regulations for the motor carrier industry
were promulgated in the late 1930's by the Interstate Commerce
Commission. The last substantive changes to the hours-of-service
regulations as we know them today (the 10-hour, 15-hour, and 60/70-hour
rules) occurred in the early 1960's. These rules were adopted by the
FHWA in 1966 when the Congress created the Department of
Transportation. Currently, drivers may not drive more than 10 hours
following 8 consecutive hours off-duty, nor may drivers drive for any
period after having been on-duty 15 hours following 8 consecutive hours
off-duty. These are the 10-hour and 15-hour rules. For motor carriers
that do not operate CMVs every day of the week, drivers may not drive
after having been on-duty 60 hours in any 7 consecutive days. For motor
carriers that do operate CMVs every day of the week, their drivers may
not drive after having been on-duty 70 hours in any period of 8
consecutive days. The 70-hour motor carriers may, at their option,
designate drivers that do not operate every day of the week to utilize
the 60-hour rule instead. These are the 60/70-hour rules.
The Federal Motor Carrier Safety Regulations (FMCSRs) generally
serve to increase the safety of all classes of motor carriers and CMV
operators. However, during the winter months, home heating oil
deliverers find it difficult to deliver an essential product in a
timely manner under the current hours-of-service regulations. During
the winter months, home supplies of heating oil typically run low and
home heating oil deliverers are more likely to run into conflicts with
the hours-of-service regulations. The same severe weather also hinders
deliveries of heating oil by slowing the rate of travel for traffic in
general, thereby extending the time required to make deliveries of home
heating oil and aggravating hours-of-service conflicts.
III. State Flexibility
Motor Carrier Safety Assistance Program
The FMCSRs, including the hours-of-service restrictions, generally
apply to interstate transportation. The Motor Carrier Safety Assistance
Program (MCSAP) was established by the Congress in 1982 to encourage
States to adopt and enforce these regulations by providing grants to
participating States. The intended effect is to expand the enforcement
of Federal safety standards for interstate transportation and to make
similar standards applicable to intrastate CMVs and drivers through
compatible State regulations. The States must agree to adopt and
enforce generally uniform safety regulations as a condition for the
receipt of funds. The MCSAP funds are used to support salaries,
equipment, and training of State enforcement officers. The data
collected by the States are shared on a national basis and used by the
FHWA as the basis for its safety rating, review, and enforcement
programs. Through the MCSAP, the FHWA and its State partners have
developed a uniform program of safety compliance and enforcement for
drivers and CMVs that has brought about substantial decreases in CMV-
related crashes since the program's inception.
Great strides have been made in achieving motor carrier regulation
uniformity in all States. The Heating Oil Program will allow a limited
number of States that depend heavily on fuel oil for residential
heating to grant limited relief from the 60-hour and 70-hour rules
during the winter months without jeopardizing their MCSAP funding. This
relief would only apply to the intrastate delivery operations of
participating motor carriers. Drivers operating in interstate commerce
would not be able to participate. Some flexibility in the application
of the FMCSRs to intrastate transportation is currently provided in the
Tolerance Guidelines (49 CFR Part 350, Appendix C). The data gathered
during this program will be used to determine whether a limited
exception to the hours-of-service rules for the heating oil industry
during the winter months has a significant adverse impact upon public
safety.
Initiation and Termination of Heating Oil Program
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 and is in the public interest, the Secretary
shall extend the State's participation in the program for 30-day
periods. Accordingly, the FHWA will require each participating State to
submit a preliminary report of its evaluation of carrier performance
after the initial 15 days. A State's participation in the program may
be suspended at any time if: (1) The State has not complied with any
criteria established for participation in the program; (2) The motor
carriers found eligible by the State are causing a significant adverse
impact upon public safety; or (3) The State elects to end its
participation in the program on its own initiative.
Participating States must monitor the safety performance of
participating motor carriers and periodically report this information
to the FHWA. The FHWA may suspend the program in any individual State
where the motor carriers in the program are causing a significant
adverse impact upon public safety. Such a determination may be made at
any time during the program. Each participating State would similarly
suspend program involvement of motor carriers that fail to continue to
meet certain safety levels at any time during the program. Each State
will need to determine what safety levels motor carriers must maintain
to continue operating under this program.
Given the fact that program participation may be suspended at any
time during the program for individual carriers or for an entire State,
the FHWA requests comment on the requirement that extensions be granted
to the States every 30 days. How burdensome would this process be? Is
there any value added to the program or to public safety by requiring
extensions be granted every 30 days for States to continue
administering regulatory relief to program carriers?
Safety Performance Monitoring Activities
Participating States must monitor and evaluate the performance of
motor carriers involved in this program. Each State should be able to
present data indicating any changes in safety levels of participating
motor carriers at the end of the initial 15-day period, at the end of
each 30-day period, and at the completion of the program. These
evaluations may be accomplished by comparing safety performance levels
of the motor carrier during the program to past performance in the
previous winter(s), safety performance of other similar industries
during the same period, or by using a study control group among the
participating motor carriers. Any other method of producing a reliable
and accurate evaluation of performance during the waived period may be
used. Each participating State must indicate the method(s) that will be
used to monitor and evaluate safety performance when they apply to the
FHWA to participate in the program.
[[Page 51488]]
IV. State Participation
The NHS Act directs the Secretary to approve a State for
participation in the Heating Oil Program only if the State's
application demonstrates the following:
1. A substantial number of the citizens of the State must rely on
home heating oil for heat during winter months;
2. The current maximum on-duty time regulations may endanger the
welfare of the State's citizens by impeding timely delivery of home
heating oil;
3. The level of safety with respect to home heating oil deliveries
will be equal to or greater than the level of safety resulting from
compliance with the current hours-of-service regulations under 49 CFR
395.3(b);
4. The State agrees to monitor the safety of home heating oil
deliveries while participating in the program and issue program status
reports to the FHWA on a periodic basis to be defined in an agreement
with the FHWA;
5. The home heating oil carriers covered by the program will agree
to make all safety data required as a condition of participation
available to the State and the FHWA;
6. The participating motor carriers must meet the eligibility
criteria indicated below in Section VI (Motor Carrier Eligibility).
Pilot programs of this nature are ideally comprised of States
representative of the various regions of the U.S. However, the single
most limiting criteria from the NHS Act is the first: a substantial
number of the citizens of the State must rely on home heating oil for
heat during winter months. For the purposes of the Heating Oil Program,
the FHWA proposes to define ``a substantial number of citizens relying
on home heating oil'' to be at least 20% of the households in a State
relying on home heating oil. The FHWA believes less than 20%, or one
out of every five households in a State relying on home heating oil,
would not qualify as substantial. The FHWA welcomes comments upon this
level being used to define a ``substantial number of citizens relying
on home heating oil.''
The Energy Information Administration of the U.S. Department of
Commerce published a document entitled Fuel Oil and Kerosene Sales
1994, which reports the number of gallons sold to residential consumers
in each State. The U.S. Census Bureau has documented numbers of persons
and households for each State. The Consumer Energy Council of America
Research Foundation (the Council) also published a technical support
document for a consumer decision-making guide on fuel switching and
home energy conservation (revised January 31, 1994). In this document,
the Council estimated that an average low efficiency house consumes
approximately 857 gallons of heating oil per year (120 million BTU).
The Council also estimated an average high efficiency house consumes
approximately 607 gallons per year (85 million BTU). Sales data for
1994 showing total gallons of fuel oil sold for residential consumption
by State, divided by these two heating oil consumption figures,
provides upper and lower boundaries for the estimated number of
households per State that rely upon heating oil. An approximate
percentage of homes that depend upon heating oil may be derived by
comparing this data with 1990 U.S. Census data reporting the total
number of households per State.
The table below shows calculations for the States with the highest
volume of fuel oil sales to residential consumers. A copy of the
documents referred to above will be placed in the public docket MC-96-
45 for review. A copy of the document Fuel Oil and Kerosene Sales 1994
(September 1995; GPO Stock No.: 061-003-00928-0) may also be obtained
from the Government Printing Office at (202) 512-1800. Data from the
U.S. Census may be obtained from the U.S. Census Bureau's 1990 Census
Lookup, accessible via the internet at http://venus.census.gov/cdrom/
lookup on the World Wide Web.
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1,000s gallons Estimated
sold to Estimated households households
State residential 1990 Census: # depending on heating depending on
consumers 1994 Households oil, 1994 (to nearest heating oil
data 100) (percent)
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ME..................................... 236,631 465,729 276,000-390,000 59-84
CT..................................... 526,930 1,203,243 615,000-868,000 51-72
VT..................................... 90,930 210,633 106,000-150,000 50-71
RI..................................... 147,504 377,080 172,000-243,000 46-64
NH..................................... 159,963 411,387 187,000-264,000 45-64
MA..................................... 828,893 2,244,406 967,000-1,366,000 43-61
NJ..................................... 517,534 2,794,316 604,000-852,000 22-31
PA..................................... 830,250 4,492,958 969,000-1,368,000 22-30
NY..................................... 1,122,298 6,634,434 1,310,000-1,849,000 20-28
WI..................................... 201,247 1,824,252 235,000-332,000 13-18
VA..................................... 206,078 2,294,722 241,000-340,000 11-15
MN..................................... 141,937 1,648,825 166,000-234,000 10-14
NC..................................... 136,622 2,517,098 159,000-225,000 6-9
OH..................................... 205,280 4,089,312 240,000-338,000 6-8
MI..................................... 169,100 3,424,122 197,000-279,000 6-8
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Based upon this data, the FHWA estimates that less than 20% of the
households of any State outside the Northeast region depend on home
heating oil. Participating States would therefore be limited to the
Northeast region. The FHWA has already received letters of interest
from New Jersey, New York, and Pennsylvania in advance of this notice.
The FHWA invites these States and others to comment upon the criteria
proposed for State participation.
V. State Application
States that meet the eligibility criteria and wish to participate
must submit an application to the FHWA that includes an implementation
plan describing the conditions of eligibility for a motor carrier to
participate. Applications should be sent during the comment period, or
as soon as possible after the comment period has closed, to the USDOT/
FHWA, Office of Motor Carrier Research and Standards, 400 Seventh
Street, SW., Washington D.C. 20590, Attention: HCS-10. The minimum
conditions stated in Section VI (Motor Carrier Eligibility) must be met
and may be expanded upon. The plan must also include the means a State
will employ to monitor performance of participating
[[Page 51489]]
carriers, mitigate safety risks, and evaluate the merits of the program
in their State. As part of the implementation plan, each State would
accept responsibility for monitoring the performance of the motor
carriers it determines to be eligible and for enforcing the conditions
it imposes.
The proposed implementation plan requirements meet the conditions
imposed by the NHS Act, in that States would be required to ensure a
level of safety for home heating oil deliveries equal to or greater
than the level of safety resulting from compliance with the current 60-
hour and 70-hour rules. The States would also be required to monitor
the safety of home heating oil deliveries while participating in the
program. The FHWA welcomes any comments on the appropriateness,
suitability, or burden of these requirements.
VI. Motor Carrier Eligibility
To be eligible for participation, a motor carrier would have to be
actively engaged in making intrastate deliveries of home heating oil
within a 100 air-mile radius of a central terminal or distribution
point. Additionally, a motor carrier could not have a current safety
rating of ``Unsatisfactory'' assigned by the FHWA, or a State-assigned
equivalent rating. Participating States would be allowed to establish
any additional criteria for participation.
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-based 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 rulemaking to determine, based in part
upon the results of the program, whether to continue 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.
VIII. Conclusion
After the FHWA reviews the timely comments to this Notice, it will
publish a Notice of Final Determination finalizing all aspects of this
Project.
(23 U.S.C. 315; 49 CFR 1.48)
Issued on: September 25, 1996.
Rodney E. Slater,
Federal Highway Admistrator.
[FR Doc. 96-25183 Filed 10-1-96; 8:45 am]
BILLING CODE 4910-22-P