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NASEO Energy Data & Security Committee |
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May 1, 2001 Ms. Julie Anna Cirillo Dear Ms. Cirillo: The National Association of State Energy Officials (NASEO) is concerned that the Federal Motor Carrier Safety Administration (FMCSA) has not yet issued final guidance on their current policy on the Declaration of Emergency Notice for Hours of Service under Title 49 CFR Parts 390. Over this past winter, this uncertainty has led to inconsistent standards for issuance of waivers by the various state governments due to the differences in their respective legislative authorities. NASEO is also very concerned about FMCSA's failure to carry out its authority to evaluate and decide on requests for driver hour waivers. NASEO is prepared to work with FMCSA to address this problem. Governors have broad authority to respond to disastrous situations. This authority in nearly all cases would allow them to grant driver hour waivers. We appreciate that the FMCSA will recognize the Governors' authority as the basis for granting interstate waivers for drivers supplying the affected areas in a State in relation to disaster situations. Clearly in such circumstances this is an appropriate action to take. There are, however, situations when the supply of petroleum products becomes limited due to either high demand or significant disruptions to the distribution systems. This often occurs in situations where the Governor may not be able to legally declare a state of disaster or emergency. Some states have specific legislative authority to declare a state of energy emergency. Under this authority they may also have the authority to grant driver hour waivers. Such declarations are not made lightly and may be limited to occurrences of specific conditions. Furthermore, the act of declaring an emergency can have negative effects on markets, by encouraging customers and suppliers to increase inventories (hoarding) and causing prices to increase even further. States are interested in taking actions that avoid the need to take increasingly serious steps and would generally prefer to work with the petroleum industry to avoid the problems before they become so severe as to warrant the declaration of an emergency. FMCSA's proposed position is not to take action on driver hour waivers until they have reached the point where homes and other customers are on the verge of running out of fuel. This is simply too late. States will be forced to take action before the problem reaches the point envisioned by FMCSA's draft guidance. The problem is that a state may not be in a disaster situation and may not be able to even declare an energy emergency, and even if they could, it might cause unintended problems. NASEO suggests that the FMCSA adopt a more flexible position on how driver hour waivers might be granted that recognizes the differences in state authorities and the need for FMCSA to take actions sooner than the current draft guidance suggest. Such action should be taken by FMCSA in consultation with affected states that can clearly demonstrate that energy supply conditions warrant a waiver . FMCSA also needs to adopt final guidance on this matter soon, so that all parties are clear on the process and are prepared to take appropriate actions before next winter. All parties need to know when circumstances might appropriately warrant such declarations. The means for assessing the regional implications in developing the final guidance needs to also be considered. Finally, the state energy offices are prepared to work with FMCSA to ensure the ability to provide petroleum products to citizens during emergency conditions. Another step FMCSA should consider is working directly with the petroleum trucking industry to adopt contingency plans. These plans should allow the industry to adapt to disruptive market conditions and supply displacements without the need to request driver hour waivers. If there are any questions on this information, please contact Jeffrey R. Pillon Chair NASEO Energy Data and Security Committee at (517) 241-6171, or Niles Parker, Vice Chair of the committee at (317) 232-7578. Sincerely,
William J. Keese, Chairman, NASEO cc: The Honorable Frank Murkowski
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