Hours of Service of Drivers; Exemption Application From Hulcher Services, Inc.

[Federal Register Volume 64, Number 146 (Friday, July 30, 1999)]
[Notices]
[Pages 41483-41486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19463]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration
[FHWA Docket No. FHWA-99-5880]


Hours of Service of Drivers; Exemption Application From Hulcher 
Services, Inc.

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of application for exemption and intent to deny 
exemption; request for comments.

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SUMMARY: The FHWA is announcing its preliminary determination to deny 
the application of Hulcher Services, Inc. (Hulcher) for an exemption 
from the maximum driving time limitations in the Federal Motor Carrier 
Safety Regulations (FMCSRs). Hulcher requested an exemption because it 
believes the current requirements interfere with the efficiency and 
effectiveness of the company's core business, emergency and disaster 
response to railroad accidents. The FHWA intends to deny the exemption 
because Hulcher did not explain how it would ensure that it could 
achieve a level of safety that is equivalent to, or greater than, the 
level of safety that would be obtained by complying with the hours-of-
service regulations. Also, Hulcher did not describe the impacts (e.g., 
inability to test innovative safety management control systems, etc.) 
it could experience if the exemption is not granted by the FHWA. The 
exemption, if granted, would preempt inconsistent State and local 
requirements applicable to interstate commerce.

DATES: Comments must be received on or before August 30, 1999.

ADDRESSES: Submit written, signed comments to FHWA Docket No. FHWA-99-
5880, 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 Motor 
Carrier Research and Standards, HMCS-10, (202) 366-4009; or Mr. Charles 
E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354, 
Federal Highway Administration, 400 Seventh Street, SW., Washington, 
D.C. 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., 
Monday through Friday, except Federal holidays.


[[Page 41484]]


SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments that were submitted to the 
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW., 
Washington, DC 20590-0001, in response to previous rulemaking notices 
concerning the docket referenced at the beginning of this notice 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.
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and suitable communications software from the Government Printing 
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database at: http://www.access.gpo.gov/nara.

Background

    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 TEA-21 amended 49 U.S.C. 31315 and 31136(e) concerning 
the Secretary of Transportation's (the Secretary's) authority to grant 
exemptions from the FMCSRs for a person(s) seeking regulatory relief 
from those requirements. An exemption may be granted for no longer than 
two years from its approval date, and may be renewed upon application 
to the Secretary. The Secretary must provide the public with an 
opportunity to comment on each exemption request prior to granting or 
denying the exemption.
    The TEA-21 requires the FHWA to publish a notice in the Federal 
Register for each exemption requested, explaining that the request has 
been filed, and providing the public with an opportunity to inspect the 
safety analysis and any other relevant information known to the agency, 
and to comment on the request. Prior to granting a request for an 
exemption, the agency must publish a notice in the Federal Register 
identifying the person or class of persons who will receive the 
exemption, the provisions from which the person will be exempt, the 
effective period, and all terms and conditions of the exemption. The 
terms and conditions established by the FHWA must ensure that the 
exemption will likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved by complying with the 
regulation.
    On December 8, 1998, the FHWA published an interim final rule 
implementing section 4007 of TEA-21 (63 FR 67600). The regulations at 
49 CFR part 381 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.

Hulcher's Application for an Exemption

    Hulcher applied for an exemption from 49 CFR 395.3, which provides 
requirements concerning the maximum driving time for drivers of 
commercial motor vehicles (CMVs). A copy of the application is in the 
docket identified at the beginning of this notice. Generally, under the 
current regulations drivers may not drive more than 10 hours following 
eight consecutive hours off duty, or for any period after being on duty 
(this includes all driving time, and all time spent working, but not 
driving) for 15 hours following eight consecutive hours off duty. In 
addition, drivers may not drive after being on duty 60 hours in any 
seven consecutive days if the employing 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 employing motor carrier 
operates CMVs every day of the week (70-hour rule). Hulcher requested 
an exemption to all these requirements. If such an exemption is not 
possible, the company asked that the FHWA consider allowing its drivers 
a 24-hour restart for the 70-hour rule--after 24 consecutive hours off-
duty, the driver would be allowed to drive a CMV irrespective of the 
number of days used to accumulate the previous 70-hours on-duty.
    Hulcher is a business that provides assistance in restoring rail 
service after train accidents, including hazardous materials incidents. 
The company responds to emergencies, makes necessary repairs to tracks 
and switches, and lifts locomotives and rail cars back onto the tracks. 
Its equipment is maintained and staged strategically throughout the 
United States in order to respond quickly and efficiently to railroad 
emergencies. The company claims that its average movement of equipment 
and personnel is less than 200 miles. Hulcher states:

    The company's dilemma concerns, the interpretation by the 
company, of the requirement of [49 CFR 395.3]. The company's heavy 
equipment operators, and laborers, who are CDL qualified, and who 
would occasionally operate a CMV, maintain a daily record of duty 
status. These personnel are performing daily activities other than 
operating a CMV, and not necessarily associated with a CMV. The 
company's practice has been to record hours worked daily as, on duty 
not driving, in a driver's daily log. The duties being performed are 
no different from the duties of a heavy equipment mechanic. A 
mechanic whose daily job function, and classification, is to 
maintain the equipment at a company owned location and, on occasion, 
if CDL qualified, may be needed to operate a CMV. The mechanic would 
not be required to maintain a drivers daily log record, but would be 
accountable for seven days prior plus the day he would be operating 
a CMV. Because of this company's current practice to record a duty 
status of all hours of every day, available hours of service have 
been significantly reduced, when needed to respond to an emergency. 
These personnel may go for days or weeks, without operating a CMV, 
but may report daily to a company owned facility. These personnel 
are relieved from duty daily for at least fifteen hours while at 
these locations. In the event, our operators and laborers have been 
operating heavy equipment at an emergency scene, they are still 
showing a daily record of duty status as ``on duty not driving.'' 
Once the job is finished, and prior to transporting the equipment 
back to it's staged location, all heavy equipment operators, and 
laborers, who will be operating a CMV, for the return trip, will be 
housed at a motel or other accommodations in order that they be 
rested before operating the CMV. Several of these personnel may have 
exhausted all available hours of service during this job. In order 
to comply with the requirements of [49 CFR 395.3], they will need to 
stay off duty up to an additional two days before regaining 
available hours. These operators and laborers can not possibly be 
more rested after forty-eight or more hours off duty, and away from 
home, than after having been off duty for at least twenty-four hours 
and returning home, and being placed off duty. The company, and its 
Managers, will not allow a fatigued individual to operate any 
company owned vehicle, and or equipment.

    Hulcher submitted information on its ``Safety Recognition Program'' 
which is intended to reward employees who have been successful in 
preventing both accidents and injuries. One point (each point has a 
cash value) is earned for each month that an employee works without 
having a ``chargeable'' accident or injury. If the employee has a 
chargeable accident or injury he or she loses points (two points per 
accident or injury). Bonus points may be earned based on the number of 
consecutive months or years the employee works without an incident, and 
based on the performance of the employee's division. The information 
provided does not show any discernible linkage between the recognition 
program and compliance with safety regulations or company guidelines.

[[Page 41485]]

Basis for Preliminary Determination to Deny the Exemption

    The FHWA has carefully reviewed Hulcher's application for an 
exemption to the maximum driving time regulation and its alternate 
request for the use of a 24-hour restart to the 70-hour rule, and does 
not believe there is scientific or safety-performance data to support 
granting either request. Hulcher has failed to explain how it would 
ensure that it could achieve a level of safety that is equivalent to, 
or greater than, the level of safety that would be obtained by 
complying with the hours-of-service regulations. Also, Hulcher did not 
describe the impacts (e.g., inability to test innovative safety 
management control systems, etc.) it could experience if the exemption 
is not granted by the FHWA. Although Hulcher argues that regulatory 
relief is necessary to respond to disasters and emergencies, there is 
no discussion of specific disasters or emergencies the company has been 
unable to respond to because of compliance with the hours-of-service 
regulations. The FHWA does not believe that an exemption granted under 
the authority of section 4007 of the TEA-21 is necessary for motor 
carriers to obtain regulatory relief to respond to legitimate 
emergencies.
    The FMCSRs include an emergency relief exemption (49 CFR 390.23) 
from almost all of the FMCSRs, including the hours-of-service 
requirements, for any motor carrier or driver operating a CMV to 
provide relief during an emergency (as defined 1 in 49 CFR 
390.5) subject to certain limitations. For regional emergencies, the 
emergency relief exemption is effective when an emergency has been 
declared by the President, the governor of a State, or their authorized 
representatives having authority to declare emergencies; or certain 
officials in one of the FHWA's Resource Centers have declared that a 
regional emergency exists which justifies an exemption from parts 390 
through 399. In the case of local emergencies, the exemption is 
effective when an emergency has been declared by a Federal, State or 
local government official having authority to declare an emergency; or 
certain officials in one of the FHWA's Resource Centers have declared 
that a local emergency exists which justifies an exemption from parts 
390 through 399 of the FMCSRs.
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    \1\ Emergency means any hurricane, tornado, storm (e.g., 
thunderstorm, snowstorm, icestorm, blizzard, sandstorm, etc.), high 
water, wind-driven water, tidal wave, tsunami, earthquake, volcanic 
eruption, mud slide, drought, forest fire, explosion, blackout or 
other occurrence, natural or man-made, which interrupts the delivery 
of essential services (such as, electricity, medical care, sewer, 
water, telecommunication transmissions) or essential supplies (such 
as, food and fuel) or otherwise immediately threatens human life or 
public welfare, provided such hurricane, tornado, or other event 
results in: a declaration of an emergency by the President, the 
governor of a State, or their authorized representatives; or by 
certain officials in one of the FHWA's resource centers near the 
location in which the emergency occurs; or by other Federal, State, 
or local government officials having authority to declare 
emergencies.
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    The motor carrier or driver is subject to the requirements of parts 
390 through 399 upon termination of direct assistance to the regional 
or local emergency relief effort. Direct assistance ends when a driver 
or CMV is used in interstate commerce to transport cargo not destined 
for the emergency relief effort, or when the motor carrier dispatches 
the driver or CMV to another location to begin operations in commerce. 
When the driver has been relieved of all duty and responsibilities 
after providing direct assistance to a regional or local emergency 
relief effort, the driver may not operate a CMV in commerce until all 
the requirements of Sec. 395.3 are met and, the driver has had at least 
24 consecutive hours off-duty when the driver has operated in excess of 
the 60-or 70-hour rules.
    Hulcher has not explained why the current emergency relief 
exemption is not sufficient for the incidents to which they typically 
respond. Also, Hulcher has not provided an explanation of what it 
considers an emergency or disaster. The FHWA does not believe that the 
mere fact that a train accident occurs automatically constitutes an 
emergency necessitating regulatory relief from the hours-of-service 
rules. The exemption from all of the hours-of-service limits, as 
requested by Hulcher, provides no specific terms or conditions that 
could be evaluated by the agency beforehand to ensure that an 
acceptable level of safety would likely be achieved, nor does it offer 
a means to monitor the safety performance of Hulcher's drivers. Under 
these circumstances, it would be inappropriate to consider granting the 
request.
    With regard to Hulcher's alternate request to use a 24-hour restart 
to the 70-hour rule, the FHWA is not aware of any research that would 
support such an exemption. The agency 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 1992 notice of 
proposed rulemaking. Virtually no substantive information was presented 
in these comments to support a change in the regulations. Except in 
very general terms, the FHWA received little discussion of potential 
impacts on highway safety that could result from increasing the 
available on-duty hours. The FHWA, 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 FHWA 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 to consider in revising the hours-of-service 
regulations. To assist the FHWA in gathering all pertinent data to make 
informed decisions based upon scientific evidence, the FHWA requested 
assistance in locating any other relevant information, including 
research, operational tests, or pilot regulatory programs conducted 
anywhere in the world, that may be used by the agency in developing a 
revised regulatory scheme for CMV drivers' hours of service. The agency 
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 FHWA Docket No. FHWA-97-2350.
    The FHWA recognizes that Hulcher provides an important service 
needed to restore rail service after an accident or incident, but does 
not believe it is necessary to grant either a blanket exemption to the 
hours-of-service regulations or allow a 24-hour restart to the 70-hour 
rule. There are no reported instances of the hours-of-service 
regulations preventing Hulcher from responding to a legitimate 
emergency or a disaster.
    Moreover, the FHWA has considered Hulcher's safety recognition 
program and does not believe it is relevant to the application. Based 
on the information submitted by Hulcher, drivers are rewarded for not 
having ``chargeable'' accidents or injuries or penalized for having 
such occurrences. The FHWA does not consider this to be an acceptable 
alternative to complying with well-defined, enforceable terms and 
conditions that the agency could attempt to evaluate during the period 
of the exemption.

Request for Comments

    In accordance with 49 U.S.C. 31315 and 31136(e), the FHWA is 
requesting public comment from all interested persons on the exemption 
application

[[Page 41486]]

from Hulcher. All comments received before the close of business on the 
comment closing date indicated at the beginning of this notice will be 
considered and will be available for examination in the docket at the 
location listed under the address section of this notice. Comments 
received after the comment closing date will be filed in the public 
docket and will be considered to the extent practicable, but the FHWA 
may deny the exemption at any time after the close of the comment 
period. In addition to late comments, the FHWA will also continue to 
file, in the public docket, relevant information that becomes available 
after the comment closing date. Interested persons should continue to 
examine the public docket for new material.

    Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.48.

    Issued on: July 22, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 99-19463 Filed 7-29-99; 8:45 am]
BILLING CODE 4910-22-P