[Federal Register Volume 65, Number 32 (Wednesday, February 16, 2000)]
[Notices]
[Pages 7906-7913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3660]


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

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 proposal to initiate a pilot program; request for 
comments.

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

SUMMARY: The FMCSA is 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 commercial motor vehicles 
(CMVs) making home heating oil deliveries that occur within 100 air-
miles of a central terminal or distribution point, during the winter 
months. The FMCSA also intends to 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 would 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 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 would be allowed to ``restart'' calculations for the 60-hour 
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, if granted, would preempt inconsistent State and local 
requirements applicable to interstate commerce.

DATES: Comments must be received on or before April 17, 2000.

ADDRESSES: Submit written, signed comments with the docket number 
appearing at the top of this document to the Docket Clerk, U.S. DOT 
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-
0001. All comments received will be available for examination at the 
above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Bus and 
Truck Standards and Operations, (202) 366-4009, Federal Motor Carrier 
Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-
0001; or Mr. Charles E. Medalen, Office of the Chief Counsel, HCC-20, 
(202) 366-1354, Federal Highway 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: Electronic Access Internet users may access 
all

[[Page 7907]]

comments that are submitted to the Docket Clerk, U.S. DOT Dockets, Room 
PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, by using 
the universal resource locator (URL): http://dms.dot.gov. It is 
available 24 hours each day, 365 days each year. Please follow the 
instructions online for more information and help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may reach the Office of the Federal Register's home page at 
http://www.nara.gov/fedreg and the Government Printing Office's 
database at: http://www.access.gpo.gov/nara.

Creation of New Agency

    On December 9, 1999, the President signed the Motor Carrier Safety 
Improvement Act of 1999 (Public Law 106-159, 113 Stat. 1748). The new 
statute established the FMCSA in the Department of Transportation. On 
January 4, 2000, the Office of the Secretary published a final rule 
notice rescinding the authority previously delegated to the former 
Office of Motor Carrier Safety (OMCS) (65 FR 220). This authority is 
now delegated to the FMCSA.
    The motor carrier functions of the OMCS's Resource Centers and 
Division (i.e., State) Offices have been transferred to FMCSA Resource 
Centers and FMCSA Division Offices, respectively. Rulemaking, 
enforcement, and other activities of the Office of Motor Carrier Safety 
while part of the FHWA, and while operating independently of the FHWA, 
will be continued by the FMCSA. The redelegation will cause no changes 
in the motor carrier functions and operations previously handled by the 
FHWA or the OMCS. For the time being, all phone numbers and addresses 
are unchanged.

Background

National Highway System Designation Act--Home Heating Oil Program

    Section 346 of the National Highway System Designation Act (NHS 
Act) (Public Law 104-59, 109 Stat. 568, at 615, November 28, 1995) 
required the Secretary to develop and implement a Winter Home Heating 
Oil Delivery State Flexibility Program (Heating Oil Program). The NHS 
Act required that the 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 be allowed to restart 
calculations of the 60-hour or 70-hour rule, whichever is applicable, 
after the driver has been off-duty for a period of 24 or more 
consecutive hours. The NHS Act allowed the Secretary to approve up to 
five 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 were required to meet criteria set forth in the 
NHS Act. These included having a substantial number of citizens relying 
upon home heating oil (which implied that 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.
    Participating States were required to submit a plan to the FHWA 
describing the conditions of eligibility for participating carriers and 
the means the State would employ to monitor performance, mitigate 
safety risks, and evaluate the merits of the program. Each State had to 
accept responsibility for monitoring the performance of the motor 
carriers it determined to be eligible and for enforcing the conditions 
it imposed.
    On October 2, 1996 (61 FR 51486), 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. The FHWA published the notice of final determination on 
January 29, 1997 (62 FR 4372). States were authorized to begin granting 
exemptions on January 29, 1997. This authorization expired April 30, 
1997.
    Because of delays in completing the notice-and-comment process 
necessary for establishing the program, the States and motor carriers 
were limited to a 90-day time-frame for participation. The information 
available at the end of the program was not sufficient to draw any 
conclusions about the potential safety impacts of allowing a 24-hour 
restart for motor carriers delivering home heating oil.

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 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. The PMAA believes 
a home heating oil program would benefit many citizens and will help to 
ensure that consumers are not deprived of an essential product during 
severe weather, without compromising safety.
    Although the PMAA letter did not provide details about the need for 
the program (i.e., a description of exactly how the current hours-of-
service regulations prevent motor carriers from delivering heating oil 
to meet customer demands), the FMCSA believes the previous 
Congressional mandate to conduct a home heating oil program, and 
correspondence from the Senate Committee on Commerce, Science and 
Transportation, Senate Committee on Environment and Public Works, and 
the House Committee on Transportation and Infrastructure suggests that 
the agency should, at a minimum, consider initiating a program under 
the TEA-21 authority. A copy of the correspondence from the chairmen of 
the committees is in the docket referenced at the beginning of this 
notice. The agency has carefully considered the PMAA request and 
believes a pilot program may provide benefits to the home heating oil 
industry and consumers by providing motor carriers with greater 
flexibility than the current rules allow, to better respond to consumer 
demands during severe cold weather. Severe cold weather alone may not 
necessitate the declaration of an emergency (as defined in 49 CFR 
390.5), which would enable motor carriers making home heating oil 
deliveries to take advantage of the emergency relief provision (49 CFR 
390.23). However, severe cold weather would certainly increase the 
demand for home heating oil and make it less likely that motor carriers 
could meet consumer demands without some form of hours-of-service 
flexibility, or hiring additional qualified drivers. The FMCSA requests 
public comment on the need for a home heating oil pilot program.

FMCSA Authority Concerning Pilot Programs

    On June 9, 1998, the President signed the Transportation Equity Act 
for the 21st Century (TEA-21) (Public Law 105-178, 112 Stat. 107). 
Section 4007 of

[[Page 7908]]

TEA-21 amended 49 U.S.C. 31315 and 31136(e) concerning the Secretary of 
Transportation's (the Secretary's) authority to grant waivers from the 
FMCSRs for a person(s) seeking regulatory relief from those 
requirements. The statute provides the Secretary with the authority to 
grant waivers and exemptions. The duration of a waiver is limited to 
three months and the Secretary may grant the waiver without requesting 
public comment.
    By contrast, an exemption may be up to two years in duration, and 
may be renewed. The Secretary must provide the public with an 
opportunity to comment on each exemption request prior to granting or 
denying the request.
    Section 4007 also provides the Secretary with authority to conduct 
pilot programs, research studies in which an exemption(s) would be 
granted to allow innovative alternatives to certain Federal Motor 
Carrier Safety Regulations (FMCSRs) to be tested. These programs may 
include exemptions from one or more regulations. The FMCSA must 
publish, in the Federal Register, a detailed description of each pilot 
program, including the exemptions being considered, and provide notice 
and an opportunity for public comment before the effective date of the 
program. The agency is required to ensure that the safety measures in 
the pilot programs are designed to achieve a level of safety that is 
equivalent to, or greater than, the level of safety that would be 
achieved through compliance with the safety regulations. The duration 
of pilot programs is limited to three years from the starting date.
    The FMCSA is required to immediately revoke participation of a 
motor carrier, a CMV, or a driver for failure to comply with the terms 
and conditions of the pilot program, or to immediately terminate a 
pilot program if its continuation is 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.
    At the conclusion of each pilot program, the FMCSA must report to 
the Congress its findings, conclusions, and recommendations of the 
program, including suggested amendments to laws and regulations that 
would enhance motor carrier, CMV, and driver safety and improve 
compliance with the FMCSRs.
    On August 20, 1998, the FHWA held a public meeting at the 
Department of Transportation headquarters to solicit information from 
interested parties on issues the agency should consider in implementing 
section 4007 of TEA-21. A notice announcing the meeting was published 
on July 29, 1998 (63 FR 40387). The notice also provided interested 
parties with an opportunity to submit written comments to the docket.
    On December 8, 1998 (63 FR 67600), the FHWA published an interim 
final rule adopting regulations to implement section 4007 of TEA-21. 
The regulations establish the procedures persons must follow to request 
waivers and to apply for exemptions from the FMCSRs, and the procedures 
the FHWA will use to process the requests for waivers and applications 
for exemptions. The regulations also codify statutory requirements 
concerning the FHWA's administration of pilot programs.
    As indicated earlier in this notice, the Secretary has rescinded 
the authority previously delegated to the FHWA to carry out motor 
carrier functions and operations. Therefore, the regulations issued by 
the FHWA are now regulations of the FMCSA. On December 29, 1999 (64 FR 
72959), the Office of the Secretary issued a final rule amending the 
heading for chapter III, title 49 of the Code of Federal Regulations, 
to reflect the organizational changes.

Use of Pilot Program Authority for the PMAA Request

    Although the PMAA requested that the FMCSA consider its request 
under 49 CFR part 381, section 4007 of the TEA-21 and the implementing 
regulations generally are applicable only to pilot programs concerning 
motor carriers engaged in interstate commerce. The only two exceptions 
are the authority of the FMCSA to grant waivers and exemptions, and to 
conduct pilot programs, concerning the commercial driver's license and 
controlled substances and alcohol testing rules. Since these rules are 
applicable to employers and drivers operating in interstate and 
intrastate commerce, the FMCSA authority to grant waivers and 
exemptions from these requirements could be used for intrastate motor 
carrier operations.
    The FMCSA intends to exercise its authority under TEA-21 to 
initiate a pilot program in which the agency would grant an exemption 
from the weekly limitation in the Federal hours-of-service regulations 
for drivers of CMVs making home heating oil deliveries in interstate 
commerce. The program would cover deliveries that occur within 100 air-
miles of a central terminal or distribution point, during the winter 
months. 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.
    With regard to the PMAA request that the pilot program include 
drivers making intrastate deliveries of home heating oil, the FMCSA 
must request assistance from the States in which these drivers operate. 
The agency intends to allow 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.
    Intrastate motor carriers transporting home heating oil in States 
that have established identical terms and conditions for the temporary 
hours-of-service exemption would submit all required information to the 
FMCSA. The FMCSA would 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 would 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. The 
States would be allowed to grant the intrastate exemptions without 
jeopardizing MCSAP funding to those States. The FMCSA is requesting 
public comment on allowing the States to grant exemptions because the 
Tolerance Guidelines for the MCSAP do not provide guidance to States 
concerning temporary exemptions from intrastate regulations to enable 
motor carriers to participate in pilot projects or programs.

Tolerance Guidelines for the MCSAP

    The objective of the MCSAP is to reduce the number and severity of 
accidents and hazardous materials incidents involving CMVs by 
establishing a nationally uniform, consistent program of commercial 
vehicle safety enforcement to significantly increase the likelihood 
that safety defects, driver deficiencies and unsafe carrier practices 
will be detected and corrected. Part 350 of title 49, Code of Federal 
Regulations, prescribes requirements for MCSAP grants to the States for 
programs to adopt and enforce Federal rules, regulations, standards and 
orders applicable to CMV safety or

[[Page 7909]]

compatible State rules, regulations, standards and orders.
    Among the requirements for receiving a basic grant, States must 
agree to adopt, and to assume responsibility for enforcing 49 CFR parts 
390 through 399. However, some flexibility is provided in appendix C to 
part 350, Tolerance Guidelines for Adopting Compatible State Rules and 
Regulations. Appendix C establishes the limits within which a State's 
deviations or variances in adopting motor carrier safety and hazardous 
materials rules may extend and still be considered compatible for 
funding purposes under the MCSAP. Paragraph number 3 of appendix C 
provides limits or tolerances for State rules and regulations where the 
U.S. Department of Transportation regulations are not applicable, i.e., 
generally in intrastate commerce.
    Certain tolerances are currently provided for intrastate hours-of-
service regulations. Specifically, an expansion of the 10-hour driving 
rule to a 12-hour driving limit is allowed provided the total period of 
time spent driving, and on-duty not driving does not exceed 16 hours. 
Also, an increase in the 60-hour and 70-hour rules such that drivers 
may accumulate up to 70 hours on-duty in 7 consecutive days, or 80 
hours on-duty in 8 consecutive days. However, these tolerances do not 
appear to provide sufficient flexibility for intrastate motor carriers 
delivering home heating oil.
    On March 9, 1999 (64 FR 11414), the FHWA published a notice of 
proposed rulemaking to amend the regulations governing the MCSAP by 
incorporating provisions of the TEA-21. This action would broaden the 
scope of the MCSAP beyond enforcement activities and programs by 
requiring participating States to assume greater responsibility for 
improving motor carrier safety. The proposed amendments would require 
States to develop performance-based plans reflecting national 
priorities and performance goals; revise the MCSAP funding distribution 
formula; and create a new incentive funding program. The tolerance 
guidelines concerning hours-of-service would be codified under 49 CFR 
350.341(e) of the revised part 350. The substance of this specific 
guideline would remain unchanged.
    Neither the current MCSAP regulations nor the proposed revision of 
49 CFR part 350 provides guidance to the States concerning temporary 
exemptions from intrastate regulations to enable motor carriers to 
participate in pilot projects or programs. Since there are no Federal 
regulatory or statutory restrictions that would preclude the FMCSA from 
allowing the States to grant temporary exemptions to intrastate motor 
carriers for the purpose of participating in a pilot program, the 
agency is requesting the States' cooperation in conducting the home 
heating oil pilot program. The FMCSA is asking that the States allow 
intrastate motor carriers that meet the FMCSA's eligibility criteria to 
participate in the study. The States would not be required 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 requests comments on whether the agency should 
limit the number of States and, if so, what criteria should be used to 
determine which States should be considered eligible.

Structure of the Home Heating Oil Pilot Program

    The FMCSA Home Heating Oil Pilot Program is intended to be a 
simplified version of the intrastate program established in response to 
the NHS Act. The program would include interstate and intrastate motor 
carriers delivering home heating oil within 100 air-miles of a central 
terminal or distribution point, during the winter. Deliveries between 
terminals or distribution points would not be covered by the exemption. 
The exemption would cover the period between November 1 and April 30 
for three consecutive heating seasons, the first of which beginning on 
November 1, 2000. 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 the demand for the product continues after the first 
official day of spring. The FMCSA would establish the criteria for 
motor carriers to participate in the study and would 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, the level of safety that would be 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 proposing that participating motor carriers be allowed 
to ``restart'' calculations for the 60-hour 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 would be required to 
do so at that time. This restart provision differs from that in the 
program mandated by the NHS Act where drivers were permitted 
statutorily to restart their calculations for the 60-hour and 70-hour 
rules after any off-duty period of 24 or more hours.
    The FHWA proposed allowing a 24-hour restart for all motor carriers 
in 1992 (57 FR 37504; August 19, 1992). Nearly 68,000 comments were 
received in response to the NPRM. Virtually no substantive information 
was presented in these comments to support a change in the regulations. 
Except in very general terms, the agency received little discussion of 
potential impacts on highway safety that could result from increasing 
the available on-duty hours. The agency, therefore, declined to make 
the proposed changes to the rule and, on February 3, 1993 (58 FR 6937), 
withdrew the proposal and closed the docket.
    On November 5, 1996 (61 FR 57252), the agency published an advance 
notice of proposed rulemaking (ANPRM) on all aspects of the hours-of-
service regulations. The agency indicated that it was nearing the 
completion of several research projects and was seeking the results of 
other relevant research, including operational tests or pilot 
regulatory programs conducted anywhere in the world, that could be used 
in developing a revised regulatory scheme for CMV drivers' hours of 
service. The FMCSA has reviewed all the research reports submitted by 
commenters to the rulemaking docket, and scientific information 
obtained through other sources, and is not aware of any data that would 
support granting an exemption to use a 24-hour restart. Copies of all 
known research reports, as well as all comments submitted in response 
to the ANRPM, are available in FMCSA Docket No. FMCSA-97-2350 
(previously FHWA Docket No. FHWA-97-2350).
    The FMCSA believes there is sufficient scientific information to 
support allowing ``restart'' calculations for the 60-hour 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. For weekly off-duty periods, certain studies 
indicate that at least two consecutive nights off-duty that include the 
periods from midnight to 6 a.m. are necessary to restore the human body

[[Page 7910]]

and negate the effect of accumulated week-long sleep deprivation. 
Drivers may need even more nights off-duty if they have severe sleep 
deficit.
    Smiley, A. & Heslegrave, R. (1997) \1\ cited several scientific 
studies dealing with recovery time as a portion of their review of 
scientific literature on rest and recovery requirements. The review was 
conducted to evaluate the potential adequacy of a 36-hour cumulative-
fatigue-recovery provision that had been proposed by motor carrier 
industry groups to Transport Canada. Smiley and Heslegrave cited a 1967 
study by Lille (Lille, F. (1967), ``Le sommeil de jour d'un groupe de 
travailleurs de nuit,'' Le Travail Humain, Vol. 30) suggesting that a 
single day off was insufficient for night workers to recover after a 
sleep debt accumulated over five days. Other studies they cited 
indicated a preference, in terms of recovery, for a three-day rest 
period compared to a two-day period after three 12-hour night shifts; 
one such example was a study (Hildebrandt et al. (1974))\2\ that 
illustrated the advantage of two days and three days off, compared to 
one day off, in operator performance (locomotive engineers with 
inadequate rest missed multiple in-cab warning signals that resulted in 
automatic braking being triggered). A 1994 literature review indicated 
that two nights of sleep are usually sufficient to allow near full 
recovery after extended periods of sleep loss. Smiley and Heslegrave 
concluded that, ``nevertheless, although the available research is 
sparse, it is sufficient to raise concerns about a 36-hour reset that 
would allow drivers to accumulate up to 92 hours on-duty within a 
seven-day period, particularly for night driving. It is also clear that 
there is insufficient scientific foundation on which to base 
prescriptive solutions for appropriate rest periods.'' (p. 14)
---------------------------------------------------------------------------

    \1\ Smiley, A. & Heslegrave, R. (1997), ``A 36-Hour Recovery 
Period for Truck Drivers: Synopsis of Current Scientific 
Knowledge,'' (Report No. TP 13035E) Montreal: Transport Canada.
    \2\ Hildebrandt, G., Rohmert, W., & Rutenfranz, J. (1974), ``12 
& 24 H Rhythms in Error Frequency of Locomotive Drivers and the 
Influence of Tiredness,'' International Journal of Chronobiology 2: 
175-180.
---------------------------------------------------------------------------

    O'Neill, T. et al. (1999) \3\ studied drivers on long (14-hour) 
daytime duty schedules in a driving simulator. The drivers did not 
appear to have accumulated significant sleep loss during the study, but 
their amount of measured sleep increased and their sleep latency--the 
duration of time between turning off the lights and falling asleep by 
polysomnographic criteria--decreased on their first off-duty days. The 
researchers suggest ``the effectiveness of a full two nights and one 
day off (that is, `Friday night' to `Sunday morning' as a minimum safe 
restart period `` about 32 hours off-duty) under the conditions 
tested.'' (p. 48)
---------------------------------------------------------------------------

    \3\ O'Neill, T.R., Krueger, G.P., & Van Hemel, S.B. (1999), 
``Effects of Operating Practices on Driver Alertness,'' Report No. 
FHWA-MC-99-140, Federal Highway Administration.
---------------------------------------------------------------------------

    Smiley, A. & Heslegrave, R. (1997), O'Neill, T. et al. (1999), and 
Rosekind, M.R. (1997)\4\ came to the same conclusion. As Rosekind 
wrote, ``It is important to maintain an optimal sleep opportunity every 
24 hours and also address the potential for cumulative effects. 
Therefore, appropriate recovery time should be allowed per week (days 
or rolling hours). Scientific studies show that two nights of recovery 
sleep are typically needed to resume baseline levels of sleep structure 
and waking performance and alertness.'' (p. 7.6).
---------------------------------------------------------------------------

    \4\ Rosekind, M.R., Neri, D.F., & Dinges, D.F. (1997), ``From 
Laboratory to Flightdeck: Promoting Operational Alertness, Fatigue 
and Duty Time Limitations `` An International Review:'' 7.1-7.14
---------------------------------------------------------------------------

    The FMCSA believes an off-duty period that includes two consecutive 
midnight to 6 a.m. periods to obtain restorative sleep would ensure a 
level of safety that is equivalent to, or greater than, the level of 
safety that would be achieved 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 based on the amount of driving and 
other work they perform. The ``weekend'' may be longer depending on 
when the motor carrier releases the driver from duty on the last 
workday of the workweek. The alternative ``restart'' in the pilot 
program would allow drivers to take as few as 32 consecutive hours off-
duty on a ``weekend,'' provided the time period includes two 
consecutive midnight to 6 a.m. periods to obtain restorative sleep 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.
    The agency requests comments on the alternative restart for 
calculations of the 60-hour and 70-hour rules during the pilot program.

Management of the Program

    The FMCSA would manage the home heating oil program, including the 
collection and analysis of all data, and the monitoring of all motor 
carriers participating in the program. The States would make compliance 
with the FMCSA's monitoring requirements a condition of their waiving 
the intrastate hours-of-service requirements. The agency would ensure 
that there is a pilot program plan which includes the elements 
specified in 49 CFR 381.505. However, prior to preparing that plan, the 
FMCSA requests public comment on determining a reasonable number of 
participants necessary to yield statistically valid findings about the 
impact of the alternative restart on the home heating oil segment of 
the motor carrier industry. The FMCSA also requests public comment on 
the development of a data collection and safety analysis plan that 
identifies a method of comparing the safety performance for 
participating motor carriers and drivers, with the safety performance 
of motor carriers and drivers that comply with the current regulations.
    Ideally, in order to make a comparison between motor carriers in 
the program and those complying with the regulations, as required by 
TEA-21,

[[Page 7911]]

the agency would have two groups--a group of carriers operating under 
the terms and conditions of the exemption, and a control group. 
However, the FMCSA does not believe it is practicable to structure the 
pilot program in this manner. First, there is no short-term incentive 
for motor carriers in the control group. Second, motor carriers 
operating under the pilot program exemption would have a competitive 
edge against those in the control group.
    The FMCSA would 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. The agency believes 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. 
The FMCSA requests public comments on the plan to conduct a before-and-
after comparison of the safety performance of the participating 
carriers.

Eligibility Criteria for Motor Carriers to Participate

    The FMCSA is proposing that interstate motor carriers meet all of 
the eligibility criteria listed below for participating in the pilot 
program. The States granting temporary exemptions would 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'' by, 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 currently be the subject of any Federal or State 
investigation of alleged violations of motor carrier safety or 
hazardous materials transportation regulations or laws; and
    4. 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.
    The FMCSA would also have criteria for participating drivers. 
Participating drivers must not have committed, during the past three 
years, any disqualifying offences listed in 49 CFR 383.51 concerning 
commercial driver's license disqualifications and penalties, 49 CFR 
391.15 concerning disqualification of drivers operating CMVs in 
interstate commerce, or comparable State regulations or laws concerning 
disqualifications of individuals operating CMVs.
    The FMCSA believes the first criterion is necessary to ensure that 
a motor carrier determined by Federal or State officials to be either 
``unsatisfactory'' or ``conditional'' is prevented from participating. 
A safety rating of unsatisfactory is an indicator the motor carrier has 
significant deficiencies in its safety management controls. A safety 
rating of conditional means that a motor carrier is not unfit, but is 
not an indication that all is well with the safety management controls 
for the carrier's operations. As such, 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 agency requests comments on 
this criterion, particularly the prospect that motor carriers without 
safety ratings would be allowed to participate in the study.
    The second criterion is intended to keep out motor carriers that 
have had serious violations of Federal or State motor carrier safety or 
hazardous materials regulations within the past three years. If the 
motor carrier's operating practices are such that an investigation 
followed by penalties or fines was necessary, the safety management 
controls are not adequate for the purposes of the pilot program. The 
FMCSA believes this criterion should be used irrespective of the motor 
carrier's safety rating and requests public comment.
    The criterion concerning current investigations would be used to 
keep out motor carriers that may have problems with their safety 
management controls. These carriers would not be considered eligible 
for the duration of the investigation. If the completed investigation 
does not result in penalties or fines, the motor carrier would then be 
allowed to participate in the pilot program.
    The accident criterion would be used as a means of evaluating motor 
carriers' accidents during the past three years. If any of the 
accidents involved a CMV that was in unsafe operating condition which 
contributed, in whole or in part, to the accident, or a driver that was 
cited for violating Federal or State regulations and the violations 
contributed, in whole or in part, to the accident, the motor carrier 
could not participate in the program. The fact that the motor carrier 
allowed its vehicle to be operated in a condition resulting in an 
accident suggests that it would be inappropriate to allow the motor 
carrier to participate in the pilot program. Similarly, if a driver is 
cited for violation of Federal or State motor carrier safety 
regulations or laws and the failure to comply with those regulations 
was a contributing factor in the accident, the FMCSA believes the 
accident is a reflection on the motor carrier's management of its 
drivers, and the motor carrier should not be allowed to participate in 
the program. The FMCSA requests comments on this criterion.
    The driver criteria are intended to prevent unsafe drivers from 
participating in the pilot program. This determination would be made 
independent of any decision concerning the motor carrier's eligibility. 
If the driver has committed a disqualifying offense within the last 
three years, the driver could not be included in the participating 
carrier's pool of drivers that use the alternative restart.

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;

[[Page 7912]]

    (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 for each of the previous three 
calendar years, and the number of accidents that occurred during each 
of the previous winters 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 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 this notice of final determination of 
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 would also submit their requests for participation 
to the FMCSA. The FMCSA would 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 would be allowed to participate in the study and 
must agree to submit required accident information to the FMCSA during 
the study.

The Agreement

    If the FMCSA determines that a motor carrier applicant is qualified 
to participate in the pilot program, the agency would notify the 
carrier by letter. The agency would notify intrastate motor carriers 
after the State in which they operate approves their participation in 
the study. A copy of the letter would then be made available by the 
motor carrier to each driver. 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 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,
     but, if no earlier date is fixed, then on the second Tuesday in 
April (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. Within 10 business days, notify the FMCSA of the addition of a 
new driver operating under the alternative restart pilot program, 
including the name, driver license number, and date of employment of 
the new driver,
    3. Within 10 business days, notify the FMCSA when a participating 
driver ceases to be employed by the motor carrier, including the 
driver's name, license number, and date of termination,
    4. Within 10 business days, notify the FMCSA when a participating 
driver is no longer participating in the program, including the 
driver's name, license number, and date participation ended.

Removal From the Project

    The FMCSA does not believe that any motor carrier satisfying the 
eligibility criteria of this project will experience any deterioration 
of its safety record. However, should this 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 
would 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 in preparing a report 
to the Congress as required by the TEA-21. The agency would document 
findings, conclusions, and recommendations of the program, including 
whether there are 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 proposal is subject to the PRA and the required 
clearance documents will be submitted to the OMB for its approval of 
this information collection requirement.
    This Federal Register notice proposes a voluntary pilot program for 
participation by certain motor carriers that transport home heating 
oil. In return for receiving an exemption to the weekly limitations in 
the Federal hours-of-service regulations, or comparable State hours-of-
service requirements, each program motor carrier would be 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

[[Page 7913]]

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 would be 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-hour/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 heating oil. For the 
purposes of estimating the information collection burden, the FMCSA 
will use an estimate of 8,000 motor carriers.
    It is proposed that each accident involving project drivers would 
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 would 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.
    With respect to the collection of information described above, the 
FMCSA invites comments on: (1) Whether the proposed collections of 
information are necessary for the proper performance of the functions 
of the agency, including whether the information will have practical 
utility; (2) the accuracy of the agency's estimate of the burden on the 
proposed collections of information, including the validity of the 
methodology and assumptions used; (3) ways to enhance the quality, 
utility, and clarity of the information to be collected; (4) ways to 
minimize the burden of these collections of information on those who 
are to respond, including through the use of automated collection 
techniques, when appropriate, and other forms of information 
technology. Comments on this proposed information collection may be 
submitted to the FMCSA.

Request for Comments

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, the 
FMCSA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material.

    Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.73.

    Issued on: February 9, 2000.
Julie Anna Cirillo,
Acting Deputy Administrator.
[FR Doc. 00-3660 Filed 2-15-00; 8:45 am]
BILLING CODE 4910-22-P