4372 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Notices

Dated: January 15, 1997.

Warren Christopher,

Secretary of State.

[FR Doc. 97–2182 Filed 1–28–97; 8:45 am]

BILLING CODE 4710–10–M

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. MC–96–45]

Winter Home Heating Oil Delivery State

Flexibility Program; Hours of Service

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Notice of final determination.

SUMMARY: The FHWA is announcing the

implementation of a Winter Home

Heating Oil Delivery State Flexibility

Program for motor carriers making

intrastate home heating oil deliveries

within a 100 air-mile radius of a central

terminal or distribution point. The

FHWA has selected the States of

Connecticut, New Jersey, New York, and

Pennsylvania to participate in the

program.

DATES: States are authorized to begin

granting exemptions under this program

on January 29, 1997. This authorization

expires April 30, 1997.

FOR FURTHER INFORMATION CONTACT: Mr.

Nathan C. Root, Office of Motor Carrier

Research and Standards, (202) 366–

8759, or Mr. Charles Medalen, Office of

the Chief Counsel, (202) 366–1354,

Federal Highway Administration, DOT,

400 Seventh Street, SW., Washington,

DC. 20590. Office hours are from 7:45

a.m. to 4:15 p.m., e.t., Monday through

Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: Section

346 of the National Highway System

Designation Act of 1995 (NHS Act) (Pub.

L. 104–59, 109 Stat. 568, 615, November

28, 1995, 49 U.S.C. 31136 note) requires

the Secretary of Transportation to

develop and implement a Winter Home

Heating Oil Delivery State Flexibility

Program (Heating Oil Program).

Pursuant to the NHS Act, the FHWA

published a notice in the Federal

Register requesting comments on the

development and implementation of the

program and State applications to

participate in the program on October 2,

1996 (61 FR 5146). The program will

permit any period of 7 or 8 consecutive

days to end for any driver who has been

off-duty for a period of 24 or more

consecutive hours for the purposes of

determining maximum on-duty time

under 49 CFR 395.3(b) for drivers of

vehicles making intrastate home heating

oil deliveries within 100 air-miles of a

central terminal or distribution point of

the delivery of such oil. The NHS Act

allows the Secretary to approve up to 5

States to participate in the program

during the winter heating season

beginning November 1, 1996, without

jeopardizing Motor Carrier Safety

Assistance Program (MCSAP) funding to

those States. The State participants were

required to meet criteria set forth in the

NHS Act. This includes having a

substantial number of citizens relying

upon home heating oil, indicating the

current hours-of-service regulations may

endanger the welfare of these citizens by

impeding timely deliveries of home

heating oil, and ensuring that

participating motor carriers maintain a

level of safety equal to or greater than

that produced by compliance with the

current regulations through proper

monitoring of their safety performance

and reporting their performance to the

FHWA.

Under the Heating Oil Program, the

States will limit participation to those

motor carriers with commercial motor

vehicles (CMVs) that make intrastate

home heating oil deliveries within a 100

air-mile radius of a central terminal or

distribution point. The relief provided

by participating States will be effective

for an initial 15-day period. Each State

will be able to continue in the program

unless the FHWA finds that a State’s

continued participation is inconsistent

with the NHS Act, or until April 30,

1997.

Comments on all aspects of the

program were welcomed. However, the

FHWA also requested comments on a

number of specific issues. Namely, the

15-day and 30-day reporting and

program extension requirements, the

definition of a ‘‘substantial number of

citizens relying on home heating oil,’’

and the implementation plan

requirements. The comment period for

the Notice ended November 2, 1996.

Discussion of Comments

The FHWA received sixteen

comments to the notice. The American

Trucking Association (ATA) and

National Tank Truck Carriers, Inc.

(NTTC), provided comments. Four

comments were received from

petroleum industry associations: the

Petroleum Marketers Association of

America (PMAA), the Empire State

Petroleum Association, the

Pennsylvania Petroleum Association,

and the Oil Heat Task Force (OHTF).

The Wisconsin State Patrol and the

Commonwealth of Massachusetts also

provided comment, as did the

Advocates for Highway and Auto Safety

(AHAS) and two private companies.

Applications for participation were

received from four States. All comments

to the docket were in favor of the

implementation of the Heating Oil

Program with the exception of those of

AHAS and Wisconsin. Massachusetts

indicated that a substantial number of

their citizens rely on home heating oil

and that they are reviewing the October

2nd notice to determine if it is in the

Commonwealth’s best interest to

participate. To date, no application from

Massachusetts has been received by the

FHWA.

Reporting and Program Extension

Requirements

The NHS Act directs the Secretary to

select up to 5 States to participate in the

program for an initial period of 15 days

during the winter heating season. If the

Secretary finds that a State’s continued

participation in the program has not

resulted in a significant adverse impact

upon public safety, the NHS Act directs

the Secretary to extend the State’s

participation in the program for periods

of up to 30 days. Accordingly, the

FHWA indicated that it would require

each participating State to submit a

preliminary report of its evaluation of

carrier performance within 5 days after

the initial 15 days. A State’s

participation in the program could be

suspended at any time if: (1) The State

had not complied with any criteria

established for participation in the

program; (2) The motor carriers found

eligible by the State were causing a

significant adverse impact upon public

safety; or (3) The State elected to end its

participation in the program on its own

initiative.

The FHWA also indicated that it

would require each participating State

to submit a report of carrier performance

within 5 days of the close of each 30-

day reporting period. In the October 2nd

notice, the FHWA asked for comments

on the requirement that extensions be

granted to the States after each reporting

period, given the fact that program

participation may be suspended at any

time during the program for individual

carriers or for an entire State. The

applications of each State that applied

for participation included plans for

submitting a report at the end of the

initial 15-day period, and at the end of

each 30-day period for the duration of

the program. The ATA and the AHAS

also provided discussion on this issue.

The ATA commented that States

should periodically report safety

performance data to the FHWA and

suggested a 60-day reporting interval to

reduce the burdens on the States and

the carriers participating in the program.

The ATA also believed that requiring

the FHWA to grant extensions to the
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Notices 4373

States after each reporting period,

thereby enabling the States to continue

providing the hours-of-service relief to

the carriers, would add no value to the

program or to public safety. ‘‘So long as

the States have the ability to suspend

program involvement of motor carriers

that fail to meet the established safety

performance levels, which the Notice

clearly indicates they will, a 30-day

extension requirement is simply

unnecessary,’’ said the ATA.

The AHAS commented that the NHS

Act allows the FHWA to grant

extensions for periods less than and up

to a maximum of 30 days. The AHAS

stated:

We believe that the statutory provision

detailing this program clearly shows that

Congress wanted the agency to keep a tight

rein on this program and, accordingly,

specifically provided for separate evaluation

on the merits of each extension of time for

state participation in order to maximize the

administrative capabilities of the FHWA in

ensuring public safety.

The AHAS further opposes the FHWA

granting extensions in full 30-day

increments. The AHAS views the

granting of extensions as the FHWA’s

primary safeguard for protecting the

public during the program. The AHAS

was the only commenter to voice the

opinion that extensions are necessary

and should be required.

The FHWA does not believe it is

necessary to require States to report to

the FHWA in periods of less than 30

days. The States will be required to

continuously monitor and evaluate

motor carrier safety performance and

have the power to remove program

carriers and program drivers at any

point. As the ATA pointed out, the

States would be required to submit as

many as 8 reports to the FHWA for a 6-

month project and to constantly monitor

motor carrier safety performance.

Requiring States to report to the FHWA

in periods of less than 30 days would be

an unnecessary burden on all parties

involved and provide no apparent and

demonstrable benefit to public safety.

The FHWA does recognize that

reporting periods of longer than 30 days

may not allow sufficient consideration

of information for effective oversight in

light of the short duration of the covered

season.

The FHWA does agree with the

AHAS’s assertion that whether or not to

approve extensions is a significant

control the FHWA may use for

protecting the public during the

program. The definitive safeguard is the

FHWA’s ability at any point to

terminate the program in any State.

Public safety is primarily protected by

each State’s monitoring activities and by

the authority of each State to remove

any carrier or driver from the program

at any point or to terminate the program

State-wide at any point.

Considering these issues, the FHWA

is imposing limitations on the approval

of extensions. The parameters of the

program are described below. A report

will be due to the FHWA from each

State within 5 days following the initial

15 days of the program, and within 5

days of the end of each 30-day reporting

period. For the duration of the program,

motor carriers in each State will be

required to promptly report to the State

the details of any accident in which a

program driver is involved. If the FHWA

has not reviewed the State’s report and

affirmatively extended the program

within 72 hours after the report is due,

the State’s program is automatically

suspended until approval is granted.

The FHWA will also provide

continuous program oversight by

maintaining close liaison with State

personnel evaluating significant

information as it becomes available. If at

any point the FHWA determines the

program guidelines are not adhered to

or the flexibility granted by the program

results in a significant adverse impact

on public safety, the FHWA will

terminate the program. The FHWA will

make such decisions on a State-by-State

basis.

Definition of ‘‘Substantial Number of

Citizens’’

The NHS Act stipulated that, in order

to be eligible to participate in the

Heating Oil Program, a State must have

a substantial number of citizens who

rely on home heating oil for heat during

winter months. The FHWA proposed in

the October 2nd notice to interpret ‘‘a

substantial number of citizens relying

on home heating oil’’ to mean that at

least 20 percent of the households in a

State rely on home heating oil. The

FHWA specifically welcomed

comments upon this definition. The

PMAA and the OHTF both responded

that the FHWA should consider States

with the highest number of citizens

relying on heating oil rather than, or in

addition to, the percentage. Because the

FHWA received only four applications,

it was unnecessary for the FHWA to use

the highest number of citizens relying

on heating oil in addition to the

percentage of citizens to evaluate each

State’s ability to meet this criteria.

Each State that submitted an

application, plus the Commonwealth of

Massachusetts, met the 20 percent

threshold. No other comments or

inquiries were received on this

definition. Each State that applied to the

program submitted sufficient

information to establish that a

substantial number of their citizens rely

on home heating oil for heat during the

winter months. The information

submitted was based on the data

presented in the October 2nd notice,

derived from residential heating oil

sales data maintained by the Energy

Information Administration of the U.S.

Department of Commerce, as well as the

State’s own data concerning residential

heating oil use.

Implementation Plan Requirements

The October 2nd notice requested that

interested and eligible States submit an

application that included an

implementation plan describing the

conditions of eligibility for a motor

carrier to participate. The plan also had

to include a discussion of the means

that a State would employ to monitor

the performance of the participating

carriers, mitigate safety risks, and

evaluate the merits of the program. The

FHWA requested comments on the

appropriateness, suitability, or burden

of these requirements.

The AHAS expressed concern that the

FHWA may be prepared to accept

‘‘almost any information’’ regarding

safety impacts and that the monitoring

approaches were inadequate and

inconsistent with requirements for

scientific studies. No alternative

methods for monitoring or evaluating

the safety performance of participating

motor carriers were provided in the

AHAS comments. The FHWA believes

the program oversight and controls

described herein are adequate to

safeguard the public against potential

abuse. Given the nature of the program,

the differences in weather patterns and

seasonal conditions, the consequent

multiplicity of variables, and the

number and variety of participating

entities, pure scientific protocols are

impossible to devise. The FHWA will,

however, collect as much relevant

information as is reasonably possible

and evaluate it in a number of ways to

ascertain whether any safety effects of

the limited regulatory relief can be

identified and attributed.

The possible safety monitoring

approaches identified in the October

2nd notice (comparing safety

performance levels of motor carriers

during the program to performance in

previous winter(s), safety performance

of other similar industries during the

same period, and using a study control

group among the participating motor

carriers) were described in broad terms

to give the States and the public an idea

of possible methods that may be utilized

by States to monitor and evaluate safety

performance. The FHWA intended to
4374 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Notices

encourage States and the public to

propose alternative monitoring methods

that would ensure public safety and

generate data on the merits of the

program. This program will be run by

the States, with little or no resources

from the FHWA, except for program

oversight. Intrastate operations are

subject to the FHWA’s jurisdiction only

insofar as MCSAP funding may be

jeopardized if a participating State does

not adopt hours-of-service regulations

for intrastate operations that are

equivalent to or compatible with the

Federal regulations. Adoption of a 24-

hour re-start would normally constitute

an unacceptable variance to the

regulations under the current Tolerance

Guidelines (49 CFR part 350, App. C).

The FHWA has the option of rejecting

any application that contains

insufficient information or inadequate

monitoring and evaluative strategies or

otherwise fails to meet the requirements

of the NHS Act.

On-Duty Time Regulations Endangering

Welfare of Citizens

Section 346(b)(2) of the NHS Act

provides that:

The Secretary may only approve an

application of a State under this section if the

Secretary finds, at a minimum, that—

* * * * *

(2) current maximum on-duty time

regulations may endanger the welfare of

these citizens by impeding timely deliveries

of home heating oil; . . .

The AHAS commented on this

criterion with regard to the FHWA’s

responsibilities in reviewing State

applications:

Accordingly, the Secretary must make a

finding sustained by ample, credible data and

other evidence that there are in fact citizens

whose safety and health are directly and

immediately impacted adversely by service

failures in making timely deliveries of home

heating oil as a causal result of hours of

service constraints in intrastate

transportation. Advocates regard this

evidentiary standard of imminent threats to

citizen safety and health to require far more

than simple, generalized affidavits of state

officials or of motor carriers. The FHWA in

this proposal sets forth no criteria whatever

for making such a determination of whether

this public health and safety threat due

directly and immediately to hours of service

constraints in fact exists in any applicant

state.

The FHWA does not agree with

AHAS’s interpretation of the statute.

The NHS Act requires that a

determination be made that current

maximum on-duty time regulations

‘‘may endanger the welfare’’ of citizens

by impeding timely deliveries. This is a

much less stringent criterion than

AHAS’s reading of the NHS Act

suggests.

Several respondents to the docket

mentioned that extended periods of cold

temperatures that occur each winter

cause an urgent need for home heating

oil. In addition, they noted that severe

and inclement weather conditions, such

as ice or heavy snow falls, impede the

timely delivery of home heating oil to

consumers. The FHWA believes that the

situations described by the applicant

States provide sufficient evidence for

the FHWA to determine that compliance

with the hours of service requirements

may endanger the welfare of citizens

who must wait longer for delivery of

their home heating oil as a result.

Commenters also cited emergencies

declared in response to these conditions

(49 CFR 390.23) as evidence that current

maximum on-duty time regulations may

endanger the welfare of citizens

dependent on home heating oil. An

emergency declared in accordance with

§ 390.23 relieves motor carriers

providing emergency relief from

compliance with all the Federal Motor

Carrier Safety Regulations (49 CFR Parts

390 through 399). It is the FHWA’s hope

that this program may obviate the need

to declare emergencies within

participating States during the current

winter heating season.

Participating States

The FHWA has reviewed and

accepted applications submitted by the

States of Connecticut, New Jersey, New

York, and Pennsylvania. The FHWA has

discussed the applications with each

State applicant and slight modifications

have been made to what was submitted.

The FHWA has found that these States

each meet the participation eligibility

criteria established by the NHS Act. In

separate agreements with the FHWA,

each State has agreed to abide by the

parameters that follow. New York has

elected to pursue more stringent hours

of service relief than the statute allows

for this program. It has been noted

where New York deviates from the

parameters followed by the other

participating States.

Parameters of the Heating Oil Program

I. Definitions

The following definitions have been

established for the purposes of the

Heating Oil Program:

Accident. Accident is defined as an

occurrence involving a CMV operating

on a public road in commerce which

results in: (1) A fatality; (2) Bodily

injury to a person who, as a result of the

injury, immediately receives medical

treatment away from the scene of the

accident; or (3) One or more motor

vehicles incurring disabling damage as

a result of the accident, requiring a

motor vehicle to be transported away

from the scene by a tow truck or other

motor vehicle. This term also includes

any unintentional discharge of home

heating oil that requires the submission

of DOT Form F 5800.1 (Rev. 6/89) (see

49 CFR 171.16). The term accident does

not include an occurrence involving

only boarding or alighting from the

stationary motor vehicle delivering

home heating oil.

Deliveries of home heating oil.

Intrastate deliveries of home heating oil

to homes within a 100 air-mile radius of

a central location or distribution point.

Deliveries between distribution points

are not included in this definition.

Home heating oil. Fuel oil used for

heating homes which meets the

definition of ‘‘Fuel Oil’’ in the

Hazardous Materials Table in 49 CFR

172.101, identified as Fuel Oil No. 1, or

Fuel Oil No. 2.

The definition of ‘‘accident’’ was

taken from 49 CFR 390.5, with the

addition of any spillage of home heating

oil as identified by the Hazardous

Materials Regulations. The FHWA

believes it would be remiss not to

include data on hazardous materials

incidents. The FHWA has a

responsibility to the safety of the

environment as well as to public safety,

and a change in the frequency of

incidents in the loading and unloading

process may also be considered as an

indicator of driver fatigue. The

definition of ‘‘deliveries of home

heating oil’’ does not include loading

delivery trucks from a source outside

the participating State and delivering

the oil only to homes within the

participating State. Such deliveries are

interstate in nature because of their

point of origin. The definition of ‘‘home

heating oil’’ was taken from the Federal

Hazardous Materials Regulations

promulgated by the Research and

Special Programs Administration. The

FHWA understands that only Fuel Oil

No. 1 and No. 2 are used as home

heating oil (6 types of fuel oil are

identified in the Hazardous Materials

Table, No. 1, 2, 3, 4, 5 and 6).

II. Hours-of-Service Flexibility

Participating States will accept

applications from interested and eligible

motor carriers. As described below,

motor carriers that have been accepted

will be notified by their State and will

participate in the program until the

program terminates or they are removed

from the program by the participating

State.
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Notices 4375

Connecticut, New Jersey, and

Pennsylvania will permit motor carriers

that have been accepted into the

program to allow their drivers to re-start

calculations for the 60-hour and 70-hour

rules after accumulating at least 24

consecutive hours of off-duty time. New

York will permit motor carriers that

have been accepted into the program to

allow their drivers to re-start

calculations of the 60-hour and 70-hour

rules after accumulating at least 36

consecutive hours of off-duty time.

However, total on-duty time must not

exceed 75 hours during a 7 consecutive

day period (rather than 60 hours), or 80

hours during an 8 consecutive day

period (rather than 70 hours) for carriers

who operate 7 days a week. If New York

determines an ‘‘emergency’’ exists, the

above conditions will apply except the

drivers may re-start calculations after

accumulating at least 24 consecutive

hours of off-duty time. Flexibility

granted by States under this program

will not jeopardize MCSAP funding.

Drivers who exceed the 100 air-mile

radius of a central terminal or

distribution point, operate CMVs for

other motor carriers, or operate CMVs

for a participating motor carrier in

capacities not covered by the Heating

Oil Program, may not participate in the

program. However, if a participating

driver only occasionally operates a CMV

for other motor carriers or exceeds the

100 air-mile radius, it is the option of

the participating State whether to allow

the driver to continue participating in

the program. It is the FHWA’s concern

that it would be difficult to take into

account or predict the effect of driving

experience accumulated outside the

scope of this program when determining

the safety performance of participating

drivers and motor carriers. Participating

drivers must be in full compliance with

49 CFR 395.3(b) before operating

outside the constraints of this program

in interstate commerce.

III. Motor Carrier Eligibility

To be eligible to participate:

(1) Each motor carrier must certify to

the State that it is actively engaged in

making intrastate deliveries of home

heating oil within a 100 air-mile radius

of a central terminal or distribution

point.

(2) Each motor carrier must not have

received an ‘‘Unsatisfactory’’ rating from

the FHWA, or a similar safety rating

from the State, during the past 5 years.

(3) Each motor carrier must certify

that it will provide the State with timely

safety data within close proximity to the

end of each reporting period. Required

safety data includes a roster of drivers

operating under the program, time cards

for each driver, any accident reports

and/or hazardous materials incident

reports pertaining to these drivers

during the reporting period.

(4) Each motor carrier must certify

that it will comply with all applicable

regulations relating to the safety of its

intrastate operations. If an emergency is

declared, in accordance with 49 CFR

390.23, the FHWA requests that each

motor carrier continue to abide by the

conditions of this program. However, if

participating motor carriers avail

themselves of the emergency exemption,

they must continue to abide by the

reporting requirements of this program.

(5) Each motor carrier must provide to

the State accident and mileage data for

the winter season of each year it has

operated since the 1993—1994 winter

heating season. This information is

required for States to determine whether

motor carrier safety performance during

the course of this program declines or

improves. The FHWA is aware that the

severity of weather conditions varies

from one year to the next. However, by

collecting data for previous winter

seasons, accident rates for the upcoming

1996–1997 winter heating season can be

compared with recent averages.

IV. Monitoring

Each State will monitor the safety of

all drivers participating in the program.

Participating motor carriers must report

each accident to the State within 2 days

of the accident. When reporting an

accident, the motor carrier must provide

copies of the time cards for the previous

7 days for the driver involved. Within

5 days following any accident, the

motor carrier must submit to the State

a brief summary of the accident, to be

maintained by the State, which

includes:

—The date and time of the accident;

—The name and driver license number

of the driver;

—The driver’s number of hours on-duty

on the day of the accident and in the

period since his last 24-hour off-duty

period;

—The number and extent of any injuries

and/or damage to property;

—The number of fatalities; and

—Whether and to what extent any

heating oil was spilled.

If data collected by a participating

State indicates that the safety

performance of any participating motor

carrier has declined since

commencement of its participation in

the program, the State will immediately

conduct an investigation. If the State

determines that the adverse effect on

safety was caused by the flexibility

afforded under the program, the State

may elect to suspend individual drivers

of a motor carrier from participating in

the program or the motor carrier as a

whole. If a State determines that

multiple participating motor carriers

have experienced an adverse change in

their safety performance as a result of

the flexibility afforded by the program,

the State may terminate the entire

program within its jurisdiction. In all

cases, the State will promptly notify the

FHWA of any corrective actions taken

and the reasons for them.

V. Dates

The Heating Oil Program will begin

on January 29, 1997 and end by April

30, 1997, unless otherwise specified by

the individual State. Each State will

report its preliminary findings to the

FHWA within 5 days of the completion

of the first 15 days of the program. Each

State will be able to continue in the

program, unless the FHWA finds that a

State’s continued participation in the

program is inconsistent with the NHS

Act, and report program findings to the

FHWA within 5 days of each 30-day

reporting period. If the FHWA has not

reviewed the State’s report and

affirmatively extended the State’s

program within 72 hours after the report

is due, program approval is

automatically suspended in the

reporting State until the FHWA review

is completed and approval granted.

The program shall terminate for all

States by April 30, 1997. Participating

States may terminate the program before

April 30, 1997, but may not extend the

program beyond that date. The FHWA

may terminate a State’s participation at

any point during the program. Each

State may terminate a motor carrier’s or

a driver’s participation at any point

during the program. Each State may also

voluntarily terminate its own

participation at any point during the

program.

VI. Reports

Each State will provide to the FHWA

the results of the first 15 days of the

Heating Oil Program within 5 days of

the completion of the first 15 days

program. The report shall include:

—The number of participating carriers

—The number of participating drivers

—A brief summary of any accident that

has occurred, in accordance with

Section IV above;

—The number of participating carriers

and/or drivers suspended from the

program; and

—A preliminary analysis of the safety

record of the program to the date of

the report, based on the State’s

experience with similar operations

under the current 60-hour and 70-
4376 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Notices

hour rules (such as natural gas or

power company service vehicles).

If the FHWA extends the program

beyond the initial 15 days, each State

will submit a similar report within 5

days at the end of every 30-day

reporting period thereafter. Within 30

days of the conclusion of the program

(April 30, 1997), each State will compile

and report the results of the program to

the FHWA and include an overall

evaluation of the program.

VII. Final Evaluation of the Program

The NHS Act requires the FHWA to

conduct an evaluation at the conclusion

of the program. The principal objective

of the evaluation is to provide input to

a zero-base review of the need for, and

the cost and benefits of, the hours-ofservice regulations as they apply to

home heating oil delivery operations

during the winter months. The NHS Act

requires the FHWA to initiate a

rulemaking, based in part upon the

results of the program, to determine

whether to authorize State-granted

waivers of the hours-of-service

regulations to motor carriers

transporting home heating oil during the

winter months or to amend the hoursof-service regulations to provide

flexibility to motor carriers delivering

home heating oil during winter periods

of peak demand.

Authority: 49 U.S.C. 31136(e); National

Highway System Designation Act, Pub. L.

104–59, § 346, 109 Stat. 568, 615 (1995); 49

CFR 1.48.

Issued on: January 17, 1997.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 97–2089 Filed 1–28–97; 8:45 am]

BILLING CODE 4910–22–P

Maritime Administration

[Docket MSP–006/Docket S–942]

American President Lines; Notice of

Application for a Waiver Pursuant to

Section 804 of the Merchant Marine

Act, 1936, as Amended

American President Lines, Ltd. (APL),

by application received November 7,

1996, applied under Section 651,

Subtitle B, of the Act for participation

in the Maritime Security Program

(MSP). In support of its participation in

the MSP, APL by letter dated January

17, 1997 has applied for a waiver

pursuant to section 804 of the Merchant

Marine Act of 1936, as amended (Act).

On January 21, 1997, APL and

MARAD entered into MSP Operating

Agreements for nine vessels: APL

KOREA, APL PHILIPPINES, APL

SINGAPORE, APL THAILAND,

PRESIDENT ADAMS, PRESIDENT

JACKSON, PRESIDENT KENNEDY,

PRESIDENT POLK and PRESIDENT

TRUMAN. APL, in connection with the

MSA, was awarded ‘‘grandfather’’ rights

under section 804 for its six C–11

vessels: APL KOREA, APL

PHILIPPINES, APL SINGAPORE, APL

THAILAND, APL JAPAN, and APL

CHINA.

APL states that in its capacity both (I)

as a contractor under Subtitle A of Title

VI of the Act under existing Contract

No. MA/MSB 417 and (ii) as an awardee

of Operating Agreements and

prospective contractor under the new

Maritime Security Program established

by Subtitle B of Title VI of the Act, APL

requests a waiver of the provisions of

section 804 to allow APL (or any

holding company, subsidiary, affiliate or

associate of APL or any transferee of any

MSP Operating Agreement from APL to

own, operate and/or charter up to 18

foreign-flag vessels in line haul service

between the United States and foreign

ports in addition to the six such vessels

that the Maritime Administration

(MARAD) has determined that APL is

entitled to own, operate and/or charter

pursuant to section 804(f)(2)(A) of the

Act. The requested waiver is for the full

remaining term of APL’s ODS contract

and for the full term of APL’s MSP

Operating Agreements as well as any

subsequent renewals of any such

Operating Agreement.

APL asserts that grant of the requested

waiver is required for several reasons.

1. On the date of enactment of the

Maritime Security Act of 1996 (MSA),

APL moved cargo on 37 foreign-flag

vessels in line haul service between the

United States and foreign ports. Only

six of these vessels were owned and/or

operated by APL, viz., the six C–11 class

vessels which are the basis for

MARAD’s above-noted determination

that APL has an entitlement to six

vessels under section 804(f)(2)(A). For

historical reasons—including APL’s preexisting status as an ODS contractor

subject to section 804, under which

(prior to the amendments made by the

MSA) it was considerably more difficult

for a contractor to own and/or operate,

as opposed to charter space on, foreignflag vessels—APL’s interest in the other

31 foreign-flag line haul vessels on the

date of the MSA’s enactment was in the

form of space sharing and sailing

coordination agreements. Under such

agreements, APL chartered and utilized

large proportions of the slot capacity of

the 31 ships.

APL’s position is that it is entitled

under section 804(f)(2)(A) to at least 37

foreign-flag line haul vessels, based on

the six C–11s plus the 31 vessels subject

to space charter agreements. A list of the

37 foreign-flag vessels is provided as

follows:

Vessel name Flag

ALIGATOR BRAVERY Panama

ALIGATOR COLUMBUS.Panama

ALIGATOR STRENGTH Panama

ALIGATOR WISDOM ... Panama

OOCL SHANGHAI ....... Panama

OOCL AMERICA .......... Liberia

OOCL CALIFORNIA ..... Liberia

OOCL CHINA ............... Liberia

OOCL HONG KONG .... Liberia

OOCL JAPAN ............... Liberia

APL CHINA .................. Marshall Islands

APL JAPAN .................. Marshall Islands

APL KOREA ................. Marshall Islands

APL PHILIPPINES ....... Marshall Islands

APL SINGAPORE ........ Marshall Islands

APL THAILAND ............ Marshall Islands

ALIGATOR AMERICA .. Japan

ALLIGATOR GLORY .... Liberia

ALLIGATOR PRIDE ..... Liberia

ALLIGATOR VICTORY Panama

OOCL FAME ................ Liberia

OOCL FRONTIER ........ Great Britain

AGLE ANAHUAC ......... Liberia

TMM ACAPULCO ........ Germany

TMM CHETUMAL ........ Greece

TMM MANZANILLO ..... Greece

TMM SINALOA ............. Greece

TMM VERACRUZ ........ Liberia

ALLIGATOR INDEPENDENCE.Panama

ALIGATOR LIBERTY ... Japan

ALIGATOR RELIANCE Japan

ALLIGATOR TRIUMPH Liberia

NEDLLOYD DEJIMA .... Netherlands

NEDLLOYD DELFT ...... Netherlands

OOCL FAIR .................. Liberia

OOCL FIDELITY .......... Liberia

OOCL FORTUNE ......... Liberia

However, MARAD determined that,

with respect to the 31 vessels subject to

space charter arrangements, APL would

not be entitled to grandfather rights

under section 804(f)(2)(A). APL states

that, while it disagrees with this

determination, APL is willing to pursue

an alternative course—this waiver

application—to obtain the authorization

for foreign-flag line haul vessels that is

essential to APL’s success as an ODS

and MSP contractor. The requested

waiver for 18 vessels is equivalent to

half of the 31 vessels subject to space

sharing agreements, rounded up to 18 to

allow three six-vessel strings in

recognition of the operational need to

operate line haul vessels in strings

providing regular weekly port calls.

That number reflects the approximate

vessel equivalence of APL’s share of the

31 foreign flag line haul vessels on

which APL is a charterer.

In addition to the six ships

grandfathered under section 804(f)(2) of

rights recognized by MARAD based on