[Federal Register: February 16, 2000 (Volume 65, Number 32)]
[Notices]
[Page 7906-7913]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16fe00-139]
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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 proposal to initiate a pilot program; request for
comments.
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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)
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\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.
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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)
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\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.
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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).
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\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
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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
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