Winter Home Heating Oil Delivery State Flexibility Program; Hours of Service

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]

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