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 of final determination.

-----------------------------------------------------------------------

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