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

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.

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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.

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.

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

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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]

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