[Federal Register Volume 66, Number 135 (Friday, July 13, 2001)]
[Notices]
[Pages 36823-36830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17573]



[[Page 36823]]

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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.

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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