[Federal Register: July 13, 2001 (Volume 66, Number 135)]
[Notices]
[Page 36823-36830]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy01-105]
[[Page 36823]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-99-6585]
Hours-of-Service of Drivers; Pilot Program for Drivers Delivering
Home Heating Oil
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final determination.
-----------------------------------------------------------------------
SUMMARY: The FMCSA announces the initiation of a pilot program to grant
an exemption from the weekly hours-of-service restrictions for drivers
of commercial motor vehicles (CMVs) making home heating oil deliveries
that occur within a 100 air-mile radius of a central terminal or
distribution point, during the winter months. The FMCSA will also allow
States to grant temporary exemptions from the weekly restrictions in
their intrastate hours-of-service regulations for the transportation of
home heating oil during the winter months for the purpose of enabling
intrastate motor carriers conducting such operations to do so under
terms and conditions identical to those used in the FMCSA's pilot
program. The intrastate carriers will be required by the States in
which they operate to report certain accident data to the FMCSA so that
the agency can monitor their safety performance, combine the intrastate
data with the interstate data, and analyze the results. Under the
current regulations, drivers operating in interstate commerce may not
drive after being on duty 60 hours in any seven consecutive days if the
motor carrier does not operate CMVs every day of the week (60-hour
rule), or after being on duty 70 hours in any eight consecutive days if
the motor carrier operates CMVs every day of the week (70-hour rule).
During the pilot program, participating motor carriers will be allowed
to ``restart'' calculations for the 60- or 70-hour rule, whichever is
applicable, after the driver has an off-duty period encompassing two
consecutive nights off-duty that include the period of midnight to 6
a.m. This action is in response to a request from the Petroleum
Marketers Association of America (PMAA). The exemption preempts
inconsistent State and local requirements applicable to interstate
commerce.
DATES: The pilot program begins July 13, 2001. The exemption covers the
period between November 1 and April 30 for three consecutive heating
seasons, the first of which begins on November 1, 2001.
ADDRESSES: Home heating oil transporters (both interstate and
intrastate) interested in participating in the pilot program should
submit written, signed requests, containing the information required by
this notice to: Federal Motor Carrier Safety Administration, Office of
Bus and Truck Standards and Operations (MC-PSD)--Home Heating Oil
Program, 400 Seventh Street, SW., Washington, DC 20590-0001.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Bus and
Truck Standards and Operations, (202) 366-4009, or Mr. Charles E.
Medalen, Office of the Chief Counsel, MC-CC, (202) 366-1354, Federal
Motor Carrier Safety Administration, 400 Seventh Street, SW.,
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
PMAA Request for Home Heating Oil Delivery Flexibility Program
The PMAA requested that the FMCSA implement a three-year Winter
Home Heating Oil Delivery Flexibility Program. A copy of the request is
included in the docket. The PMAA requested that the new program be
available to interstate and intrastate motor carriers operating in any
State. The association indicated that elements of the previous heating
oil program initiated in response to section 346 of the National
Highway System (NHS) Designation Act (Pub.L. 104-59, 109 Stat. 569, at
615, November 28, 1995) could be used to address most of the guidelines
for the new program, as well as satisfy most of the rules in 49 CFR
381.505, concerning minimum requirements for a pilot program. (For more
information about the previous pilot program see 61 FR 51486, October
2, 1996; and 62 FR 4372, January 29, 1997.) The PMAA believes a home
heating oil program would benefit many citizens and help to ensure that
consumers are not deprived of an essential product during severe
weather, all without compromising safety.
Notice of Proposal to Initiate a Pilot Program
On February 16, 2000 (65 FR 7906), the FMCSA published a notice
announcing its proposal to initiate a pilot program in which the agency
would grant an exemption from the weekly hours-of-service restrictions
for drivers of CMVs making home heating oil deliveries. The notice
discussed the proposed structure of the program and requested public
comment.
The agency received comments from: Advocates for Highway and Auto
Safety (Advocates); National Propane Gas Association (NPGA); Parents
Against Tired Truckers (PATT); Petroleum Marketers Association of
America (PMAA); and the National Tank Truck Carriers, Inc. A summary of
the comments is presented below.
Comments Opposed to Conducting a Pilot Program
Advocates and PATT were opposed to the initiation of a pilot
program for hours of service. Advocates argued that the research cited
in the notice proposing a home heating oil pilot program does not
support the proposed exemption. Advocates stated that there was no
analysis of the actual number or percentage increase in driving hours
over different time frames provided in the notice proposing the pilot
program. Also, there was no review of the differences in risk exposure
that could be produced by granting the exemption and installing a
minimum 32-hour restart. Advocates believes the agency did not comply
with the requirements of TEA-21 because the agency did not ``propose
the machinery for conducting the pilot project, including its data
collection and safety analysis activities.'' Advocates states that the
program fails to address the TEA-21 requirement that each pilot program
include adequate countermeasures to protect the health and safety of
study participants and the general public.
PATT expressed concern that the proposed pilot program would have
the effect of causing truck drivers to experience a high level of
fatigue. PATT states:
Every year when the Petroleum Industry asks the State Police to
waive the Hours of Service for their drivers because of a claimed
shortage of heating oil, we get many calls from the delivery
drivers, explaining that they really don't want to do the extra time
that is forced on them because they fear a tragedy that can be
caused by fatigue.
Comments Supporting the Pilot Program But Requesting a Revised Program
Structure
The NPGA supports the proposal for a home heating oil pilot program
but requested that the program be expanded to include transporters of
propane, or that the FMCSA establish a separate pilot program for
drivers delivering propane. NPGA believes the delivery infrastructure
for both fuels is virtually identical. Both fuels are carried by
pipeline, railcar, or trucks from the point of production to central
[[Page 36824]]
distribution facilities. Smaller local delivery trucks are used to
serve each company's customers. NPGA indicated that both industries are
busiest during the winter heating season, and sometimes have to respond
to supply challenges beyond the industry's control.
NPGA believes there will be significant confusion within companies
that serve both fuel oil and propane customers if the FMCSA covers only
home heating oil. NPGA argues that ``* * * it would be unfair for FMCSA
to grant regulatory relief to one fuel over another, when companies are
competing within an increasingly deregulated energy marketplace.''
NTTC noted that its members compete economically with PMAA members.
Both groups of motor carriers operate cargo tanks and both transport
home heating oil. The difference is that NTTC members do not make
deliveries to residences and PMAA members focus heavily on such
deliveries. NTTC explained that residential deliveries are made by
single-unit or straight trucks while deliveries to large commercial
customers are made by combination units (i.e., towing unit and a
trailer).
NTTC argues that the pilot program should be more rigidly
controlled to avoid giving a marketplace advantage to PMAA members. It
requested that the program be applicable to deliveries to terminals and
distribution points, and be limited to vehicles with gross weights
between 10,001 pounds and 40,000 pounds. The NTTC believes the weight
range would ensure that only straight trucks are used in the program.
PMAA Comments
PMAA requested that the FMCSA not limit the number of States in the
pilot program. They believe the program will become a regional program
because of the use of home heating oil in certain parts of the country.
PMAA does not believe the number of participants should be limited
because weather patterns will limit the amount of data gathered.
PMAA submitted additional comments in response to Advocates and
PATT comments. PMAA explained that all home heating oil delivery
drivers work daytime hours. Customers do not want drivers delivering
heating oil at nighttime. Also, it is not safe for drivers to fill
tanks in the dark. During the winter months, drivers generally begin
delivering oil at 7 a.m. and complete their deliveries by 5 p.m.
The PMAA stated that drivers sleep at home every night. The drivers
work within a 100 air-mile radius of the normal work-reporting
location. On average, the typical driver spends nine hours on duty, not
driving, and two and one-half hours driving. The PMAA argues that sleep
debt is not relevant to these drivers since they are working and
resting on a ``synchronous circadian rhythm shift rotation.''
FMCSA Response to Commenters
The FMCSA has considered the comments submitted and decided to
exercise its authority under TEA-21 to initiate a pilot program.
The agency has carefully reviewed the comments from Advocates and
PATT. Although Advocates explained its reasons for arguing that none of
the studies cited by the FMCSA in the notice of proposal supports the
initiation of a pilot program, the agency does not agree. The agency
did not claim that the research reports cited in the proposal support
conducting this specific pilot program. However, the research is a
strong indicator that under certain conditions, it is more likely than
not that motor carriers could use an alternative to the current rule
concerning a restart of the 60-/70-hour rule, and achieve a level of
safety equivalent to, or greater than, that achieved through compliance
with the safety regulations. The agency believes an off-duty period
encompassing two consecutive nights off-duty that include the period of
midnight to 6 a.m. is an appropriate restart period for drivers
delivering home heating oil to consumers.
Under the current regulations the time required to restart the 60-/
70-hour ``clock'' may vary depending on the driver's schedule. In an
example of a worse-case scenario, if a driver using the 70-hour rule
worked an intensive schedule starting at 12:01 a.m on Monday morning
and alternated non-stop between 15 consecutive hours on-duty (10 hours
driving time and 5 hours on-duty, not driving) and 8 hours off duty,
the driver would be prohibited from driving a CMV from 6 a.m. on Friday
until 12:01 a.m. the following Tuesday (a period of 90 consecutive
hours). If the driver started at the same time on Monday but alternated
non-stop between 10 consecutive hours driving and 8 hours off-duty, the
driver would be prohibited from driving a CMV from 10 p.m. on Friday
until 12:01 a.m. the following Tuesday.
Under the alternative restart that will be used for the pilot
program, the driver in both of these examples could return to work as
early as 7 a.m. on Sunday, approximately 41 hours earlier than the
current regulations allow. The driver would basically be restarting the
70-hour clock two days earlier than the current regulations allow.
Therefore, if the driver continued to operate on an equally intensive
schedule, the next work week would begin on Sunday and end around
Thursday afternoon for a driver alternating between 15 hours on-duty
and 8 hours off duty. The work week would end early Friday morning for
the driver alternating between 10 hours driving and 8 hours off duty.
These worst-case scenarios, however, are not representative of the
home heating oil industry's scheduling practices. The information
presented in the PMAA's comments make it clear that the drivers'
schedules would be far less intensive than the ones described above.
Advocates and PATT did not present any information suggesting that the
restart provision used for this program would reduce the level of
safety for the home heating oil residential-delivery segment of the
motor carrier industry.
While it is clear that drivers will be allowed to work more hours
over the course of seven or eight consecutive days than under the 60-
or 70-hour rule, the scheduling practices for delivering heating oil to
residential customers combined with the alternative restart provision
will ensure a level of safety that is equal to, or greater than, that
achieved by using a minimally compliant scheduling system (i.e., either
one of the worse-case scenarios described above).
As for PATT's comment that drivers are being forced to work longer
hours than they consider safe, the FMCSA is not aware of drivers'
concerns about working additional hours. The agency requested comments
from all interested parties but received no comments from current or
former drivers responsible for delivering home heating oil, or
organizations or groups representing the drivers. Therefore, the FMCSA
can neither confirm nor refute the statement.
However, the pilot program does not diminish in any way Federal
protection of drivers' rights to a safe workplace. Current Federal
regulations prohibit motor carriers from requiring or permitting a
driver to operate a CMV while the driver's ability or alertness is so
impaired, or so likely to become impaired, through fatigue, illness, or
any other cause that it is unsafe for the driver to begin or continue
to operate the CMV (49 CFR 392.3). This rule applies to the pilot
program. Section 405 of the Surface Transportation Assistance Act of
1982 (49 U.S.C. 31105) states, in part, that no person shall discharge,
discipline, or in any manner discriminate against an employee with
respect to the employee's compensation, terms,
[[Page 36825]]
conditions, or privileges of employment for refusing to operate a
vehicle when such operation constitutes a violation of any Federal
rule, regulation, standard, or order applicable to CMV safety. This
means that the participating drivers may contact the FMCSA at any time
they are being forced to violate safety regulations or the terms and
conditions of this pilot program. Drivers may use the FMCSA's toll free
telephone number: 1-800-DOT-SAFT to report unsafe operations.
With regard to the Advocates' comment about compliance with TEA-21
requirements for pilot programs, the FMCSA published a detailed
description of the program, including the exemption being considered.
The notice discussed the safety measures (i.e., criteria for
participating drivers and carriers, accident reporting requirements)
intended to achieve a level of safety equivalent to, or greater than,
that achieved through compliance with the safety regulations. The FMCSA
discussed each of the following elements of its proposed design of the
pilot program as required by section 4007 of TEA-21:
1. A scheduled life of not more than 3 years for the pilot program.
2. A data collection and safety analysis plan that identifies a
method for comparison.
3. A ``reasonable'' number of participants to yield statistically
valid findings.
4. An oversight plan to ensure that participants comply with the
terms and conditions of participation.
5. Adequate countermeasures to protect the health and safety of
study participants and the general public.
6. A plan to inform State partners and the public about the pilot
program and to identify approved participants to safety compliance and
enforcement personnel and to the public.
The agency indicated that the exemption offered as part of the
pilot program would be in effect during the period between November 1
and April 30 for three consecutive heating seasons, the first of which
would have begun on November 1, 2000. The agency explained its plan to
perform a before-and-after comparison of the accident experiences and
hazardous materials incidents for each of the participating motor
carriers. The agency also explained why a more scientifically rigorous
data collection and analysis scheme was not used, such as a comparison
of the safety performance of participating carriers with that of a
control group (i.e., home heating oil transporters operating under the
current regulations) and requested comments.
Although the agency did not propose a minimum number of
participating carriers to ensure that the results are statistically
valid or meaningful, the agency requested comments. None of the
commenters provided suggestions or recommendations for a minimum or
maximum number of motor carriers. Therefore, the agency will use its
discretion to determine whether the number of motor carrier applicants,
the number of drivers employed by these motor carriers, and the number
of States in which they operate would form the basis for initiating a
pilot program.
On the subject of an oversight plan, the agency proposed
requirements for accident and hazardous materials incident reporting.
The agency could conduct random visits to participating carriers, in
addition to periodic reviews of each interstate motor carrier's
accident experience reported by State officials through SAFETYNET, and
Hazardous Materials Incident Reports (DOT Form F 5800.1) (see 49 CFR
171.16) filed with the Research and Special Programs Administration
(RSPA) by the motor carriers. The participating motor carriers would
continue to be subject to compliance reviews and investigations
conducted independently of their involvement in the pilot program.
The FMCSA does not believe it would be appropriate at this time to
expand the pilot program to include transportation of propane as
requested by the NPGA. Although residential demand for propane is
significant, it does not appear to be as urgent as the demand for home
heating oil.
The FMCSA has reviewed information from the U.S. Department of
Energy's Energy Information Administration (EIA) to determine the
number of households that rely on home heating oil and propane. Of the
101.5 million households in the U.S., approximately 7.7 million use
heating oil. Residential space heating is the primary use for heating
oil, making the demand highly seasonal. The area of the country most
reliant on heating oil is the Northeast. Approximately 4.6 million
households rely on propane for their primary heating fuel. Propane is
most commonly used to provide energy to areas not serviced by the
natural gas distribution system. Therefore, it competes mainly with
heating oil for space heating purposes. Homeowners in the Midwest use
it predominantly for heating, while Northeast residences rely on it
more for cooking.
The FMCSA believes that the motor carrier and driver populations
required to service residential users of home heating oil provide a
better opportunity for conducting a pilot program. The agency does not
believe that limiting the program to home heating oil will adversely
impact motor carriers transporting propane, or consumers relying on
propane as their primary means of residential space heat. It is very
unlikely that residential propane customers would switch or alter their
heating systems to use heating oil simply because the agency is
conducting a pilot program for three consecutive winter seasons. This
is especially the case given that there are no guarantees that the
regulatory alternative allowed during the pilot program will become
part of the Federal hours of service rules. Nor is it clear that any
cost savings realized by companies delivering home heating oil under
the pilot program would be passed along to consumers. Therefore, the
implementation of a pilot program should not, in and of itself, place
propane distributors at an economic disadvantage compared to
transporters of home heating oil.
As for the NTTC, the agency does not believe the program should be
expanded to include deliveries to terminals and distribution points.
The purpose of the program is to test an alternative to the current 60-
/70-hour rule for a segment of the trucking industry responsible for
delivering heating fuel to residential customers. To include terminals
and distribution points would shift the focus away from the potential
needs of residential customers, and towards business and/or commercial
activities that may not be as much of a factor in making certain
consumers have an adequate supply of heating fuel.
The FMCSA does not consider it necessary to include a restriction
on the size of the vehicles used in the pilot program. Since the
program limits participation to motor carriers making residential
deliveries, the maximum size of the vehicles used would be governed by
the residential street configuration, and applicable local rules
restricting certain classes of CMVs from residential neighborhoods.
While NTTC members may compete with PMAA members, both groups can
participate in the program provided they are delivering home heating
oil within a 100 air-mile radius of a central terminal or distribution
point. Membership in the PMAA is not a prerequisite for participation
in the pilot program.
FMCSA Determination
The FMCSA is exercising its authority under TEA-21 to initiate a
pilot program in which the agency will grant an exemption from the
weekly (but not the daily) limitation in the Federal
[[Page 36826]]
hours-of-service regulations for drivers of CMVs making home heating
oil deliveries in interstate commerce. The program would cover
deliveries that occur within a 100 air-mile radius of central terminals
or distribution points, during the winter months (November 1 to April
1). Deliveries between terminals and distribution points would not be
covered by the exemption. The exemption to enable interstate motor
carriers to participate in the pilot program would preempt inconsistent
State hours-of-service requirements applicable to interstate commerce.
The FMCSA will include drivers making intrastate deliveries of home
heating oil in the pilot program and is therefore requesting assistance
from the States in which these drivers operate. The agency is allowing
States to grant temporary exemptions from the weekly limitations
provisions of their intrastate hours-of-service regulations for the
transportation of home heating oil during the winter months for the
purpose of enabling intrastate motor carriers conducting such
operations to do so under State-established terms and conditions
identical to those used by the FMCSA. The States may grant the
intrastate exemptions without jeopardizing MCSAP funding to those
States.
Intrastate motor carriers transporting home heating oil in States
that have established identical terms and conditions for the temporary
hours-of-service exemption must submit all required information to the
FMCSA. The FMCSA will, in turn, provide the respective States with
lists of the intrastate motor carriers and drivers the FMCSA believes
should be considered eligible for the States' approval for
participation. The States may allow the intrastate motor carriers and
drivers to operate under the terms and conditions of the study based on
recommendations from the FMCSA. This process is necessary because the
FMCSA does not have the authority to grant intrastate exemptions.
Unlike the previous pilot program for drivers delivering home
heating oil, this one does not require the States to meet any criteria
(e.g., having an approved plan for monitoring the motor carriers, or
having a substantial number of citizens relying upon home heating oil,
etc.) before being allowed to grant the temporary exemptions.
The FMCSA has determined that the proposed eligibility requirement
for motor carriers and drivers is, with one exception (concerning
carriers currently under investigation), appropriate for use in the
pilot program. The agency is requiring that interstate motor carriers
meet three eligibility criteria discussed below for participating in
the pilot program. The States granting temporary exemptions must
require that intrastate carriers meet the same eligibility requirements
in order to take advantage of the exemption. The purpose of the
eligibility criteria for motor carriers is to keep entities with
questionable safety performance and/or safety management controls out
of the program.
The first criterion is that participating motor carriers be either
``unrated,'' or have a current safety rating of ``Satisfactory.''
Unrated motor carriers are those that have not received compliance
reviews or audits. The compliance review is an on-site examination of a
motor carrier's operations, including records on drivers' hours of
service, maintenance and inspection, driver qualification, commercial
drivers license requirements, financial responsibility, accidents,
hazardous materials, and other safety and transportation records to
determine whether a motor carrier meets the safety fitness standard.
The FMCSA is allowing unrated motor carriers to participate since it
would be unfair to exclude them simply because they were not selected
by the agency for a compliance review. The absence of a compliance
review is in no way an indication that the carrier has done anything
wrong or has safety problems.
Motor carriers that have received compliance reviews are required
to have a ``satisfactory'' rating. This means that a motor carrier has
in place adequate safety management controls to comply with the Federal
safety regulations, and that the safety management controls are
appropriate for the size and type of operation of the motor carrier.
The agency is not allowing motor carriers with conditional or
unsatisfactory ratings to participate because both of those ratings
indicate there are safety management control problems. There is little
reason to believe that carriers rated either unsatisfactory or
conditional could be relied upon to comply with the terms and
conditions for participating in the pilot program.
The second criterion is that motor carriers must not have been the
subject of a Federal or State investigation resulting in penalties or
fines for violations of motor carrier safety, or hazardous materials
transportation, regulations or laws within the last three years. If a
motor carrier's operating practices are such that an investigation
followed by penalties or fines was necessary, its safety management
controls are not adequate for the purposes of the pilot program. This
criterion will be used irrespective of a motor carrier's safety rating.
The third criterion involves accidents. A motor carrier cannot
participate in the program if the cause of, or a contributing factor
to, any of its accidents in the past three years was determined to be
(1) a CMV owned or operated by the carrier that was in unsafe operating
condition or (2) a driver for the carrier who violated Federal or State
regulations. For purposes of this criterion, ``accidents'' are the
incidents specified in 49 CFR 390.5. An unsafe operating condition is
typically one that is likely to cause an accident or a breakdown of the
vehicle (which could also trigger an accident). A Federal, State, or
local official responsible for investigating the cause of CMV accidents
must make the determination of causation.
With regard to the proposed criterion that motor carriers must not
currently be the subject of any Federal or State investigation of
alleged violations of motor carrier safety or hazardous materials
transportation regulations or laws, the agency has reconsidered this
requirement and has determined that it is inappropriate. The proposed
criterion implied wrongdoing on the part of the motor carrier whenever
allegations of regulatory violations are made. This approach would be
fundamentally unfair to motor carriers. Allegations are not evidence.
They are sometimes based on a misunderstanding of the regulations; in
rare cases, they may even be made in bad faith. The FMCSA (or a State
applying the same standards) will not bar a motor carrier from the
program unless it has evidence that the carrier fails to meet the
criteria for eligibility.
The FMCSA has determined that drivers must also meet criteria to
participate in the pilot program. Participating drivers must not have
committed, during the past three years, any disqualifying offenses
listed in (1) 49 CFR 383.51 concerning commercial driver's license
disqualifications and penalties, (2) 49 CFR 391.15 concerning
disqualification of drivers operating CMVs in interstate commerce, or
(3) comparable State regulations or laws concerning disqualifications
of individuals operating vehicles with a gross vehicle weight rating/
gross combination weight rating or gross weight of 10,001 pounds or
more. The disqualifying offenses include regulatory violations such as
driving a commercial motor vehicle while under the influence of
alcohol, driving under the influence of a controlled substance, leaving
the scene of an accident, and using a commercial motor vehicle in the
[[Page 36827]]
commission of a felony involving manufacturing, distributing, or
dispensing a controlled substance. The driver criteria are intended to
prevent unsafe drivers from participating in the pilot program. This
determination will be made independent of any decision concerning the
motor carrier's eligibility. If the driver has been convicted of a
disqualifying offense within the last three years, the driver cannot be
included in the participating carrier's pool of drivers that use the
alternative restart.
Structure of the Home Heating Oil Pilot Program
The FMCSA's Home Heating Oil Pilot Program is a simplified version
of the intrastate program established in 1997 in response to the NHS
Designation Act. The program will include interstate and intrastate
motor carriers delivering home heating oil within a radius of 100 air-
miles of a central terminal or distribution point, during the winter.
Deliveries between terminals or distribution points are not covered by
this exemption. The exemption covers three consecutive winters,
beginning with November 1, 2001, through April 30, 2002, and followed
by two successive winters. The length of the exemption period is
intended to accommodate motor carriers operating in regions of the
country where there is a significant demand for heating oil before the
first official day of winter, or after the first day of spring. Through
this notice of final determination, the FMCSA is establishing the
criteria for motor carriers to participate in the study. The agency
will collect and analyze data concerning the safety performance of
these carriers during the study.
The FMCSA believes the terms and conditions of the pilot program
will ensure that the program achieves a level of safety equivalent to,
or greater than, that achieved through compliance with the safety
regulations. The terms and conditions, or safety measures, presented
below are designed to ensure that the program does not adversely affect
safety.
Alternative Hours-of-Service Restart
The FMCSA is allowing participating motor carriers to ``restart''
calculations for the 60- or 70-hour rule, whichever is applicable,
after the driver has an off-duty period encompassing two consecutive
nights off-duty that include the periods from midnight to 6 a.m.
However, if the driver reached the 60- or 70-hour limit without having
taken any such off-duty period, he or she is required to do so at that
time. Drivers are required to comply with the 10-hour driving limit in
Sec. 395.3(a)(1).
The FMCSA continues to believe there is sufficient scientific
information to justify a limited pilot program allowing drivers for
motor carriers that deliver home heating oil to ``restart'' their
calculations for the 60-hour or 70-hour rule, whichever is applicable,
after having an off-duty period encompassing two consecutive nights
off-duty that include the periods from midnight to 6 a.m.
The FMCSA believes an off-duty period that includes two consecutive
midnight to 6 a.m. periods to obtain restorative sleep would ensure
these carriers a level of safety that is equivalent to, or greater
than, the level of safety that they would achieve by complying with the
current weekly limitations in the hours-of-service regulations. A
minimum 32 to 56-hour break that includes the minimum of two
consecutive nights of sleep would provide drivers a full day off with
two sleep periods between the hours of midnight and 6 a.m.
The minimum off-duty periods are intended to afford the drivers the
opportunity for restorative sleep. The ``weekend'' may be longer
depending on when the motor carrier releases the driver from duty on
the last workday of the workweek. However, the alternative ``restart''
in the pilot program would allow drivers to take as few as 32
consecutive hours off-duty on a ``weekend,'' if the time period
includes two consecutive midnight to 6 a.m. periods and the driver is
released from work at exactly 11 p.m. on the last workday of the
workweek.
It is unreasonable to expect that a driver will get full advantage
of two consecutive midnight to 6 a.m. sleep periods if he/she is
released at or just before midnight, and required to return to work at
or just after 6 a.m. Therefore, the FMCSA has chosen 11 p.m. as the
latest time drivers could get off work and still get to sleep for the
first full midnight to 6 a.m. period on the first night of a
``weekend.'' Likewise, the agency has chosen 7 a.m. as the earliest
time drivers could start a new workweek and still sleep the last full
midnight to 6 a.m. period on the last night of a ``weekend.''
Generally, drivers would be off duty for more than the minimum 32
consecutive hours, but fewer than the 63 consecutive hours in a
``normal weekend'' (5 p.m. Friday to 8 a.m. Monday). A driver
completing a workweek at 11 p.m., for example, could take the minimum
32 hours before beginning the next workweek. A driver completing a
workweek at 11:10 p.m., though, would have to be off-duty for
approximately 56 hours before beginning the next workweek.
The FMCSA is not suggesting that participating motor carriers
provide only 32 hours that include the two consecutive midnight to 6
a.m. periods. That is the minimum off-duty time. The FMCSA expects the
participating motor carriers to provide, and drivers to take, as much
time as necessary to recover from any sleep debts and other conditions
resulting from cumulative weekly fatigue.
Drivers and motor carriers utilizing the ``restart'' provisions
will, of course, continue to operate as their customers insist,
generally making home heating oil deliveries only between the hours of
7:00 a.m. and 5:00 p.m. That fact, combined with the 10- and 15-hour
rules which remain applicable to the pilot program [Secs. 395.3(a)(1)
and 395.3(a)(2), respectively] and the ``weekend'' requirements
discussed above, ensures that drivers should have enough daily rest to
avoid a significant sleep debt and enough time periodically off duty to
eliminate any cumulative fatigue that may occasionally develop despite
these precautions.
Management of the Program
The FMCSA is managing the home heating oil program, including the
collection and analysis of all data, and the monitoring of all motor
carriers participating in the program. However, we are requesting that
the States make compliance with the FMCSA's monitoring requirements a
condition of their waiving the intrastate hours-of-service
requirements. The agency has developed a pilot program plan which
includes the elements specified in 49 CFR 381.505.
Pilot Program Plan
The FMCSA will review participating carriers'accident data from the
three-years prior to entering the pilot program, and compare this pre-
pilot program safety performance data with data collected during the
program. This before-and-after comparison will provide a practical and
effective means of determining whether the alternative restart
provision affects safety performance, provided there are no other
significant changes in the operating practices of the participating
carriers that could also affect safety performance.
Eligibility Criteria for Motor Carriers To Participate
The FMCSA is requiring that interstate motor carriers meet all of
the eligibility criteria listed below for
[[Page 36828]]
participating in the pilot program. The States granting temporary
exemptions must require that intrastate carriers meet the same
eligibility requirements in order to take advantage of the exemption.
The purpose of the eligibility criteria is to keep motor carriers with
questionable safety performance and/or safety management controls out
of the program. Participating motor carriers--
1. Must be either ``unrated,'' or have a current safety rating of
``Satisfactory'' issued, by the FMCSA (or the FHWA or OMCS prior to the
establishment of the FMCSA), or a State;
2. Must not have been the subject of a Federal or State
investigation resulting in penalties or fines for violations of motor
carrier safety or hazardous materials transportation regulations or
laws within the last three years;
3. Must not have had, during the last three years, any accidents
(as defined in 49 CFR 390.5) in which a determination was made by a
Federal, State, or local official responsible for investigating the
cause of CMV accidents, that the motor carrier's CMV was in unsafe
operating condition (i.e., a condition likely to cause an accident, or
breakdown of the vehicle) and the mechanical condition was a
contributing factor in the accident, or that the driver was cited for
violation of Federal or State motor carrier safety regulations or laws
(whichever were applicable at the time of the accident) and the
driver's violation of those regulations or laws was a contributing
factor in the accident.
Participating drivers must not have committed, during the past
three years, any disqualifying offences listed in (1) 49 CFR 383.51
concerning commercial driver's license disqualifications and penalties,
(2) 49 CFR 391.15 concerning disqualification of drivers operating CMVs
in interstate commerce, or (3) comparable State regulations or laws
concerning disqualifications of individuals operating vehicles with a
gross vehicle weight rating/gross combination weight rating or gross
weight of 10,001 pounds or more.
Process for Motor Carriers To Apply for Participation in the Pilot
Program
In order to be considered for the pilot program interstate motor
carriers (or intrastate motor carriers operating in States that agree
to grant exemptions consistent with the requirements and conditions of
this program) must submit, in writing, the following to the FMCSA:
(1) The name of the motor carrier;
(2) USDOT Number, MC Number, and State-issued motor carrier
identification number;
(3) The address for the principal place of business, telephone
number, and fax number;
(4) Name and title of company official who will serve as the
carrier's point of contact for inquiries from the FMCSA;
(5) A driver roster consisting of names and driver license numbers
and State of licensure for all participating drivers;
(6) The number of home heating oil delivery vehicles that will be
operated by drivers using the alternative restart;
(7) The total number of accidents, as defined in Sec. 390.5, for
each of the previous three calendar years, and the number of accidents
that occurred during each of the previous winter seasons (November 1
through April 30);
(8) The following certification signed by a motor carrier official:
I certify that (Name of the motor carrier) operates CMVs used to
deliver home heating oil, and is not currently rated
``Unsatisfactory'' or ``Conditional'' by the FMCSA (or the FHWA
prior to the establishment of the FMCSA), or a State. I certify that
each of the drivers listed on the roster is eligible to participate
in the project, that each operates a CMV used predominantly to
transport home heating oil, and that we have verified that the
driving record of each driver does not include any convictions
within the past three years of any disqualifying offense. I have
read and agree to be bound by the requirements for notification and
submission of information to the FMCSA outlined in the section
entitled ``The Agreement'' in the notice of final determination for
this project. I certify under penalty of perjury pursuant to 28
U.S.C. 1746 that the foregoing is true and correct. Executed on ____
(Date)
Signature-------------------------------------------------------------
Name------------------------------------------------------------------
Title-----------------------------------------------------------------
Name of Motor Carrier-------------------------------------------------
Intrastate motor carriers operating in States that provide a
temporary exemption must also submit their requests for participation
to the FMCSA. The FMCSA will provide the State with a list of the motor
carriers and drivers for the State's approval for participation in the
Study. If the State agrees with the FMCSA's recommendation, the
carriers and drivers will be allowed to participate in the study and
must agree to submit required accident information to the FMCSA during
the study.
If the FMCSA determines that a motor carrier applicant is qualified
to participate in the pilot program, the agency will notify the carrier
by letter. The agency will notify intrastate motor carriers after the
State in which they operate approves their participation in the study.
A copy of the letter must then be made available by the motor carrier
to each driver and carried onboard the vehicle at all times the vehicle
is being operated under the terms and conditions of this program.
The Agreement
All motor carriers participating in the pilot program must limit
participation in the program to only those drivers predominantly
engaged in the delivery of home heating oil to residential customers
within a 100 air-mile radius of central terminals or distribution
points, during winter months. A driver is not ``predominantly engaged''
in residential deliveries if more than 20 percent of his or her
deliveries, on a weekly basis, are to non-residential customers. Motor
carriers and drivers must meet the eligibility requirements to be
accepted into the pilot program, and to remain in the program.
Participating motor carriers are allowed to ``restart''
calculations for the 60- or 70-hour rule (Sec. 395.3(b)(1) or (b)(2),
respectively), whichever is applicable, after the driver has an off-
duty period encompassing two consecutive nights off-duty that include
the periods from midnight to 6 a.m. However, if the driver reaches the
60- or 70-hour limit without having taken any such off-duty period, he
or she is required to do so at that time. Drivers must comply with the
10-hour driving limit in Sec. 395.3(a)(1), and the 15-hour on-duty
limit in Sec. 395.3(a)(2).
The off-duty period used to ``restart'' the calculations for the
60- or 70-hour rule must not begin any later than 11 p.m. for the first
full midnight to 6 a.m. period on the first night of a ``weekend.'' The
earliest time drivers may start a new workweek and still sleep the last
full midnight to 6 a.m. period on the last night of a ``weekend'' is 7
a.m. Participating motor carriers must provide, and driver must take,
as much time as necessary to recover from any sleep debts and other
conditions resulting from cumulative weekly fatigue.
Participating drivers must comply with Sec. 395.3(b)(1) or (b)(2),
whichever is applicable, while performing driving tasks other than
delivering home heating oil to residential customers within 100 air-
miles of central terminals or distribution points.
By agreement, participating motor carriers must do the following:
1. Within 10 business days following an accident (as defined in 49
CFR 390.5) or any unintentional discharge of home heating oil that
requires the submission of the Department of Transportation Hazardous
Materials Incident Report (DOT Form F 5800.1) (see 49 CFR
[[Page 36829]]
171.16) involving any of the motor carrier's CMVs, irrespective of
whether the CMV was being operated by a participating driver, the motor
carrier must submit the following information:
(a) Date of the accident,
(b) City or town in which the accident occurred, or city or town
closest to the scene of the accident,
(c) Driver's name and license number,
(d) Vehicle number and State license number,
(e) Number of injuries,
(f) Number of fatalities, and
(g) Whether hazardous materials, other than fuel spilled from the
fuel tanks of the motor vehicles involved in the accident, were
released,
(h) The police-reported cause of the accident,
(i) Whether the driver was cited for violating any traffic laws,
motor carrier safety regulations, or hazardous materials discharge.
(j) Whether the driver was participating in the pilot program, and
if so, the total driving time, on-duty time since the last restart
period prior to the accident, and the length of the last restart
period.
2. Notify the FMCSA of the addition of a new driver operating under
the alternative restart pilot program within 10 business days,
providing the name, driver license number, and date of employment of
the new driver.
3. Notify the FMCSA within 10 business days after a participating
driver ceases to be employed by the motor carrier providing the
driver's name, license number, and date of termination.
4. Notify the FMCSA within 10 business days after a participating
driver leaves the pilot program, providing the driver's name, license
number, and date participation ended.
Removal From the Project
The FMCSA expects that any motor carrier satisfying the eligibility
criteria of this project will maintain its safety record. However,
should any deterioration occur, the FMCSA will, consistent with the
statutory requirements of TEA-21, take all steps necessary to protect
the public interest, as well as the integrity of the program.
Participation in this program is voluntary, and the FMCSA will
immediately revoke participation of an interstate motor carrier or
driver for failure to comply with the terms and conditions of the pilot
program, or immediately terminate the pilot program if its continuation
proves to be inconsistent with the goals and objectives of the safety
regulations issued under the authority of 49 U.S.C. chapter 313, or 49
U.S.C. 31136.
With regard to intrastate motor carriers and drivers, the FMCSA
will notify State officials immediately if the agency determines that
the carrier or driver has failed to comply with the terms and
conditions of the pilot program. The FMCSA will request that the State
agency granting the temporary exemption immediately revoke
participation of the intrastate motor carrier or driver.
FMCSA Use of Data
The FMCSA plans to carefully review the data collected as a result
of the program in preparing a report to the Congress, as required by
the TEA-21. The agency will document findings, conclusions, and
recommendations of the program, including any suggested amendments to
laws and regulations that would enhance motor carrier and driver safety
and improve compliance with the hours-of-service regulations.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA)(44 U.S.C. 3501-
3520), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. The FMCSA has
determined that this program is subject to the PRA and the required
clearance documents were submitted to the OMB for its approval of this
information collection requirement.
This Federal Register notice establishes a voluntary pilot program
for participation by certain motor carriers that transport home heating
oil. In return for receiving an exemption from the weekly limitations
in the Federal hours-of-service regulations, or comparable State hours-
of-service requirements, each program motor carrier is required to
develop and/or furnish certain information about its operations,
determine the eligibility of its drivers to participate in the program,
provide information about past accidents, and agree to provide detailed
information about accidents that occur during the pilot program. It is
anticipated that the initial application will require on average, about
one hour to complete. This document is necessary to identify those
motor carriers that believe they are eligible to participate in the
project, and to indicate their desire to be included in the project.
Participating motor carriers are required to submit to the FMCSA:
(1) The total number of CMVs that will be operated by a driver using
the alternative to the 60-/70-hour restart; (2) the names and driver
license numbers for all drivers using the alternative restart; (3) the
total number of accidents (as defined in 49 CFR 390.5) for each of the
three years prior to participating in the project, including the total
number of injuries and fatalities; (4) information about all accidents
that occur while the carrier is participating in the program; and (5)
information about the addition or removal of drivers from the project.
The most likely respondents to this information collection will be
motor carriers operating CMVs transporting home heating oil during the
winter, with a safety rating of satisfactory or unrated. The FMCSA does
not have a precise count of the total number of carriers that would be
eligible to participate in the program. However, the PMAA represents
approximately 8,000 motor carriers that supply home heating oil. For
the purposes of estimating the information collection burden, the FMCSA
used an estimate of 8,000 motor carriers.
Each accident involving project drivers must be reported to the
FMCSA within 10 calendar days. This information is necessary in order
to detect immediately those motor carriers whose safety performance is
declining during the project and will also be used to assist in making
the before-and-after comparison of each carrier's safety performance.
The reporting and recordkeeping burden for this information is
estimated to be 15 minutes per accident.
With regard to the total reporting requirement, if 8,000 motor
carriers participate, a total of 8,000 hours would be expended by these
carriers to apply for the project. If each of the motor carriers
averages two accidents per winter, the burden for each year would be
4,000 hours (0.25 hours per accident x (2 accidents per year x
8,000 motor carriers) = 4,000 hours per year. The total burden for
submitting accident data during the three-winter period would be 12,000
hours. Therefore, the FMCSA estimates approximately 20,000 burden hours
during the pilot project.
The FMCSA requested public comment on the collection of information
discussed above as part of the February 16, 2000, notice of proposal to
conduct the pilot program. None of the commenters to the docket
discussed the information collection burden. Therefore, the FMCSA is
using the estimates included in the proposal for the pilot program.
[[Page 36830]]
Issued on: July 9, 2001.
Brian M. McLaughlin,
Associate Administrator for Policy and Program Development.
[FR Doc. 01-17573 Filed 7-12-01; 8:45 am]
BILLING CODE 4910-EX-P